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State v. Landis12/6/2004
he time.....
Q: And pursuant to section[56-5-2953] did you sign an affidavit for failure to produce videotape indicating that your videotaping machine was inoperable?
A: Yes, I did.
Moreover, Landis' counsel was provided a copy of Trooper Davis' affidavit.
Counsel for Landis: I haven't seen any Affidavit. I'm assuming you will be admitting it. State: I thought you were given a copy. Counsel: I don't think so. State: That was done today. Counsel: Oh, Okay. .... Counsel: That's fine. I just needed to see it.
Indeed, Landis used the affidavit during cross-examination of Trooper Davis. And during the motion hearing, Landis' counsel requested to enter the affidavit into evidence but decided to wait until trial to admit the document.
Counsel for Landis: Can we put the Affidavit in as an exhibit? The Court: Sure. State: If counsel wants to put the Affidavit into evidence in his trial, then (inaudible) Counsel: I think we're entitled to introduce that at this time for the record on our motion. It is not something that- State: You want to introduce it for purposes in the motion? Counsel: Well, we need it for purposes of the motion, but I guess we can-we'll do it at trial. We'll hang on to it and just go ahead and admit it during the trial itself.
In further refutation of Landis' argument, the record discloses that not only was Landis' counsel in possession of Trooper Davis' affidavit, but the court accepted counsel's request to place the affidavit into evidence. Landis' counsel then decided not to enter the affidavit after the court had given him permission to do so. Although the statute does not specify to whom the arresting officer should submit the affidavit, we hold that whether the affidavit has been submitted is not an issue when it has undisputedly been prepared and is in defense counsel's possession at trial.
Based on the cited testimony and Trooper Davis' affidavit, we hold the statutory requirements of section 56-5-2953(B) were satisfied.
CONCLUSION
Therefore, the order of the circuit court is hereby
AFFIRMED.
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