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Keller v. State12/1/2004
WHOLE COURT
In April of 1997, a Cobb County jury found Gerald Keller guilty of inter alia being a habitual violator, driving under the influence of alcohol, having improper equipment, and speeding. Keller has been before this Court numerous times with regard to this conviction. He is with us again, this time arguing that several claims of error require reversal. Finding no merit to Keller's claims, we affirm his conviction.
Viewed to support the jury's verdict, the evidence shows that at approximately 6:00 a.m. on August 3, 1995, Georgia State Trooper Keith Hales observed Keller's vehicle traveling on I-575 in Cobb County at a speed that appeared to be above the posted speed limit and with its left headlight out. Hales' radar gun registered the vehicle traveling 79 miles per hour in a 55 mile per hour zone.
The trooper pulled Keller over and asked him for his driver's license and proof of insurance; Keller could produce neither. Hales noted that Keller had bloodshot, watery eyes and a strong odor of alcohol about his person. He administered several field sobriety tests, all of which indicated that Keller was under the influence of alcohol. The trooper then placed Keller under arrest. Further investigation showed that Keller's license was suspended pursuant to his status as an habitual violator. Held:
1. Initially, Keller makes two arguments attempting to negate the admissibility of the Department of Public Safety ("DPS") documents establishing his receipt of habitual violator notice. Keller's arguments present no basis for reversal.
(a) Keller first claims that the GPS documents did not comply with OCGA § 40-5-58, which sets forth the definition of an habitual offender and the requirements for notifying an offender of his status. At trial, however, Keller did not object to the admission of these documents on the grounds that they did not meet the statutory requirements of OCGA § 40-5-58. As a consequence, this argument is waived.
(b) As he did in the court below where he cited to Miller v. State, Keller argues that the GPS documents were introduced without an authenticating witness in violation of his Sixth Amendment confrontation rights, and thus, they constituted inadmissible hearsay. This issue has been decided adversely to Keller in Shapiro v. State.
(c) The dissent urges that one of the GPS documents, State's Exhibit 3, was uncertified and was thus hearsay. That the GPS documents were certified is a matter of fact that went completely unchallenged at trial. "Because this is a court for review and correction of error, we cannot consider objections to evidence different from those raised at trial." So, this claim is waived as a matter of fact.
Further, the issue of certification was first raised at the motion for new trial by appellate counsel, and that issue was promptly abandoned. Indeed, Keller does not raise such issue here. Before this Court, Keller's assertion is that the GPS documents were unauthenticated by a live GPS witness, which did not allow him to cross-examine the witness to see if the documents were "properly certified." Nowhere does Keller claim that S-3 is completely without certification and is thus hearsay, which objection - if true - could easily have been raised at trial, regardless of the presence of a live witness. Tellingly, the objection was not raised.
2. Relying on Hawkins v. State, Keller also argues that the trial court erred in refusing to suppress the field sobriety evaluations, because the arresting officer admitted that he had deviated from the standards in which he was trained. We disagree.
In reviewing a trial court's decision on a motion t
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