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Lanier v. State5/4/1999
In the Court of Appeals of Georgia
BL-011C
Steven A. Lanier appeals his convictions, following a jury trial, of driving after being declared a habitual violator and two counts of driving under the influence of alcohol. For the reasons set forth below, we affirm Lanier's convictions.
1. In his first enumeration of error, Lanier contends that the State failed to prove that he was properly served with notice of his license revocation.
OCGA § 40-5-58 (b) provides that the State must notify any person found to be a habitual violator "by certified mail, with return receipt requested; or, in lieu thereof, notice may be given by personal service upon such person." At trial, in the present case, the State sought to introduce two certified documents, Exhibits 7 and 8, reflecting that Lanier had been served with notice of his habitual violator status. Lanier's trial counsel objected, raising an insufficient foundation argument. The Court reserved ruling on Exhibit 7, which was admitted properly at a later point, and tacitly admitted Exhibit 8. See Hite v. State, 208 Ga. App. 267, 269 (430 SE2d 125) (1993) (evidence introduced but not expressly admitted was tacitly admitted).
Exhibit 8 was a document entitled "Official Notice of Revocation and Service by Court" which was signed by Lanier acknowledging that he was personally served with service of the habitual violator revocation order. Lanier's foundation objection was without merit, and the trial court properly admitted it. Furthermore, both Lanier and the State referred to his status as a habitual violator in their closings. Therefore, viewing the evidence in the light most favorable to the verdict, it was sufficient under the standard of Jackson v. Virginia, 443 U. S. 307 (99 SC 2781, 61 LE2d 560) (1979) to prove that Lanier had been validly served with notice of his status as a habitual violator.
2. In his second enumeration of error, Lanier contends that his trial counsel was ineffective in that he did not object to hearsay statements from an officer regarding Lanier's knowledge of his status as a habitual violator which the officer received from the dispatcher.
To show that trial counsel was ineffective, Lanier must show both that counsel's performance was deficient and that the deficiency so prejudiced his defense that a reasonable probability exists that the outcome of trial would have been different but for the deficiency. Hassan v. State, 231 Ga. App. 783, 784 (500 SE2d 644) (1998). Lanier's trial counsel did not object to the officer's testimony regarding his dispatcher's report. Furthermore, even if such testimony was improperly admitted, it was cumulative of the evidence properly admitted in Exhibits 7 and 8. Lanier has failed to meet this burden of showing ineffective assistance of counsel.
3. Lanier contends that no competent evidence was admitted that he operated his vehicle in a less safe manner.
"OCGA § 40-6-391(a)(1) makes it unlawful for a person to drive or be in actual physical control of any moving vehicle while nder the influence of alcohol to the extent that it is less safe for the person to drive. There is no requirement that the person actually commit an unsafe act." (Punctuation omitted.) Apperson v. State, 225 Ga. App. 804, 805 (2) (484 SE2d 739) (1997). See also Shannon v. State, 205 Ga. App. 831, 833 (4) (424 SE2d 51) (1992).
Trooper Gunnin testified that, as he was operating a drive- through license check point, Lanier failed to heed his audible and visual signals to stop at the intersection where road flares and flashing blue lights had been posted. Lanier pulled through the check point and traveled an addit
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