Carver v. State

Justice George H. Carley,

concurring specially.

I concur in the majority’s affirmance of appellant’s conviction. I cannot, however, concur in the majority’s rationale for doing so.

Construing appellant’s enumerations of error liberally, he raises both the general grounds and the trial court’s evidentiary ruling admitting the radar evidence. Under. these circumstances, it is the enumerations of error relating to the admission of the radar evidence which must be considered first, since a consideration of these enumerations may obviate any consideration of the general grounds. “[W]here an appellate court reverses a conviction on the basis that competent evidence was erroneously admitted, the appellate courts in Georgia will not and need not then review the remaining evidence on sufficiency grounds.” (Emphasis supplied.) Hall v. State, 244 Ga. 86, 94 (5) ( 259 SE2d 41 ) (1979). Accordingly, if the admission of the radar evidence was reversible error in the instant case, the general grounds need not be reached.

Relying upon Wiggins v. State, 249 Ga. 302, 306 (3) ( 290 SE2d 427 ) (1982), several cases of this court have held that the admission of *409 radar evidence may be considered on appeal even though no objection was raised in the trial court. Taylor v. State, 205 Ga. App. 84 (1) ( 421 SE2d 104 ) (1992); Brown v. State, 204 Ga. App. 629 ( 420 SE2d 35 ) (1992); Johnson v. State, 189 Ga. App. 192 ( 375 SE2d 290 ) (1988). In my opinion, this is erroneous. Wiggins was itself an interlocutory appeal from the denial of a motion to suppress. Thus, on its face, Wiggins was a case wherein an evidentiary ruling on the admissibility of radar evidence had been invoked in the trial court. Certainly, nothing in Wiggins purports to authorize consideration of an evidentiary ruling in an appeal wherein no objection to the admission of radar evidence has been raised and overruled in the trial court. Evidence which is seized from a defendant is certainly inadmissible unless the State has complied with the strictures of the law, but the admissibility of seized evidence is nevertheless an issue of no concern on appeal unless a ruling thereon has first been invoked in the trial court and an adverse ruling has then been properly enumerated as error on appeal. Gilmore v. State, 117 Ga. App. 67, 68 (2) ( 159 SE2d 474 ) (1967); Smith v. State, 120 Ga. App. 613 (1) ( 171 SE2d 755 ) (1969). Radar evidence is no different. Such evidence may be inadmissible but, if no objection is raised in the trial court and the admission of the evidence over objection is not raised on appeal, no issue as to admissibility is presented for appellate review. Accordingly, I agree with the majority that the Taylor, Brown and Johnson cases should be overruled insofar as they hold that the admissibility of radar evidence can be addressed on appeal without regard to a defendant’s invocation of a ruling on the admissibility of that evidence in the trial court. “[W]e can not consider any error alleged to have been made unless there is an enumeration of it as provided in [OCGA § 5-6-40], nor can we consider . .-. an error enumerated unless it is supported in the record and shown to have been ruled on by the trial judge.” Craig v. State, 130 Ga. App. 689, 693 (6) ( 204 SE2d 307 ) (1974).

In the trial court, appellant did object to the admission of the radar evidence on the grounds which he asserts on appeal. Accordingly, we are authorized to consider his enumerations of error which relate to the trial court’s evidentiary ruling. The majority finds that none of appellant’s objections has merit, except that which asserts that the State failed to prove that the highway grade was less than seven percent as required by OCGA § 40-14-9. I cannot agree. In my opinion, none of appellant’s objections has merit, including that which is based upon OCGA § 40-14-9.

The officer testified that the road was “flat” and numerous photographs of the road were introduced into evidence. The photographs may not have been admitted specifically to show compliance with OCGA § 40-14-9, but they were admissible as a fair and accurate representation of the roadway itself. From the officer’s opinion testimony *410 that the road was “flat” and the photographs, I believe a finding was authorized that the radar had been employed in compliance with the requirement of OCGA § 40-14-9 that the grade not be in excess of seven percent. See generally Oglethorpe Realty Co. v. Hazzard, 172 Ga. App. 98, 99 (1) ( 321 SE2d 820 ) (1984). The evidence in this regard may not have been conclusive, but, in my opinion, it was sufficient to authorize admission of the radar evidence for the jury’s consideration. “In respect to . . . opinion testimony as to speeds, time, and distance, it has been held many times that same is very unreliable, but, nevertheless, admissible. [Cits.]” Fuels, Inc. v. Rutland, 123 Ga. App. 23, 28 (5) ( 179 SE2d 290 ) (1970). The officer’s testimony that the road was “flat” is, in my opinion, no different than an opinion as to speed, time or distance and would authorize admission of the radar evidence.

Decided March 19, 1993 —

Reconsideration denied April 2, 1993.

Daniel B. Carver, Jr., pro se.

Jerry Rylee, Solicitor, Graham McKinnon IV, Assistant Solicitor, for appellee.

The majority holds that, notwithstanding the radar evidence which it finds to be inadmissible, the officer’s oral testimony was otherwise sufficient to authorize appellant’s conviction. The majority apparently holds that the erroneous admission of the radar evidence was harmless, because that evidence was merely cumulative of the officer’s testimony in the instant case. There is some question, however, whether scientific radar evidence can ever be considered as merely cumulative of an officer’s oral testimony, such that an erroneous evidentiary ruling admitting the former can be rendered harmless by the admission of the latter. See Brinson v. State, 201 Ga. App. 80, 81 (1) ( 410 SE2d 50 ) (1991); Dept. of Transp. v. Petkas, 189 Ga. App. 633, 636 (3) ( 377 SE2d 166 ) (1988). Because I find the radar evidence to be admissible, however, I express no opinion as to whether the officer’s testimony in the instant case was merely cumulative of the radar evidence. I would simply hold that the radar evidence was not erroneously admitted and that that radar evidence authorizes appellant’s conviction for speeding.

I am authorized to state that Presiding Judge McMurray, Judge Andrews and Judge Johnson join in this special concurrence.