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Rigdon v. State10/28/2004
m that he did not need to present evidence and legal arguments in defense against that charge. See Crane v. Kentucky, 476 U.S. 683, 690(II), 106 S.Ct. 2142, 90 L.Ed.2d 636 (1986) (due process requires that a criminal defendant be given a meaningful opportunity to present a complete defense to the charged offense); In re Oliver, 333 U.S. 257, 273, 68 S.Ct. 499, 92 L.Ed. 682 (1948) (due process guarantees a criminal defendant an opportunity to present a defense, including the assistance of counsel, reasonable notice of the charges against him, and an opportunity to examine the witnesses against him and to offer testimony).
(c) Having found error, we must now consider whether the probate court's error was harmless such that its judgment should nonetheless be affirmed, as the superior court found. We note initially that even claims of error based on the due process clause of the Fourteenth Amendment are subject to harmless error analysis. Hill v. State, 232 Ga.App. 561, 563, 502 S.E.2d 505 (1998); Ross v. State, 195 Ga.App. 624, 627(4), 394 S.E.2d 418 (1990). "Whether a constitutional violation constitutes harmless error depends on whether the State can prove beyond a reasonable doubt that the error did not contribute to the verdict." (Citation and punctuation omitted.) Brawner v. State, --- Ga. ----(2) (Case No. S04A0898, decided September 13, 2004). "The burden rests with the prosecution in making this showing." (Citations and punctuation omitted.) Mangum v. State, 274 Ga. 573, 577(2), 555 S.E.2d 451 (2001). We have reviewed the record in this case and find that the State has not carried its burden of showing beyond a reasonable doubt that the probate court's due process violation was harmless. The State offered no evidence at all that Rigdon drove in an unsafe manner, and the State has not shown that Rigdon could not have successfully impeached the State's circumstantial evidence of impairment. Because the probate court's error was not harmless beyond a reasonable doubt, Rigdon's conviction must be reversed. Brawner v. State, --- Ga. at ----(2).
*4 2. Because the probate court prevented the presentation of evidence for and against a less safe DUI charge, we find the issue of whether the evidence was sufficient to find Rigdon guilty beyond a reasonable doubt of violating OCGA § 40-6-391(a)(1) is not yet ripe for our review.
Judgment reversed.
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