author: Carley, Presiding Judge. Pope, Judge,

text:
    A92A1002.
    KENDRIX v. THE STATE.
    (426 SE2d 251)
   Carley, Presiding Judge.

Appellant was tried before a jury and found guilty of two counts of burglary, two counts of armed robbery, one count of aggravated sodomy, three counts of kidnapping, one count of kidnapping with bodily injury and one count of rape. He appeals from the judgments of conviction and sentences entered by the trial court on the jury’s guilty verdicts.

1. The victim of one of the burglaries was forced at gunpoint from one room of her house to another and was then raped. However, the only evidence of bodily injury to the kidnapped victim was the rape itself. The State concedes that, under these circumstances, appellant’s separate conviction for rape is deemed to have merged into his conviction for kidnapping with bodily injury. Gober v. State, 203 Ga. App. 5, 8 (8) (416 SE2d 292) (1992). Accordingly, appellant’s separate conviction and sentence for rape must be vacated.

2. Ten days before trial, appellant moved for a continuance. The denial of this motion is enumerated as error.

It appears that appellant’s counsel had been under the mistaken impression that, at the State’s request, DNA testing was to be performed by the State Crime Lab and that the results of such testing would, therefore, be forthcoming pursuant to either appellant’s OCGA § 17-7-211 motion, if inculpatory, or his Brady motion, if exculpatory. Upon discovering that no such request had been made by the State, appellant did not request a continuance so as to have his own independent testing done. Appellant’s motion sought a continuance “in order to allow the Georgia Crime Lab adequate time to prepare a DNA analysis of the samples submitted to it.” (Emphasis supplied.) Appellant cites no authority for the proposition that the defendant in a criminal case is entitled to a continuance pending receipt of the results of State Crime Lab testing which has not been requested by the State. Appellant had no right to seek, and the trial court had no authority to order, that the State Crime Lab conduct tests for appellant’s benefit. Pursuant to his OCGA § 17-7-211 and Brady motions, appellant certainly had the right to receive a copy of the results of any State Crime Lab DNA test, if such a test had been conducted at the State’s request. Pursuant to Sabel v. State, 248 Ga. 10, 17 (6) (282 SE2d 61) (1981), appellant also had the right to seek independent DNA testing. In fact, some 14 days before trial, the trial court had granted appellant’s general motion to inspect, examine and test physical evidence. However, the exercise of such a right to independent testing was not invoked as the basis for the grant of a continuance to appellant. If appellant had no underlying right to have DNA testing performed by the State Crime Lab, it would certainly not be an abuse of discretion to deny the motion to continue the trial pending appellant’s receipt of the results of DNA testing performed by the State Crime Lab. See generally Nettles v. State, 144 Ga. App. 473 (1) (241 SE2d 589) (1978) (not error to deny continuance due to absence of evidence that defendant otherwise had no right to obtain).

Appellant was indigent and, under that circumstance, he might have moved for a continuance in order for independent DNA testing to be performed by his own expert at State expense. However, what appellant might have done is immaterial. The trial court was called upon to rule on the motion for continuance that appellant had actually made. Appellant’s motion for continuance was predicated upon his receipt of DNA test results to be performed by the State Crime Lab. It is this motion that appellant urges was erroneously denied. However, appellant cites no authority for the proposition that he had the right to request the State Crime Lab to conduct the test on his behalf or that the trial court was authorized to order the State Crime Lab to conduct such testing on appellant’s behalf. A trial court should be affirmed or reversed on the basis of the ruling that it was actually called upon to make, not on the basis of a ruling that an appellant might have invoked. There being no error in the trial court’s refusal to grant a continuance based upon appellant’s receipt of DNA test results to be performed by the State Crime Lab, a reversal is not authorized. The trial court was not asked to grant a continuance in order for independent DNA testing to be performed and should not be reversed for failing to have done so.

3. Appellant’s conviction and sentence for rape are vacated. Appellant’s remaining convictions are affirmed.

Judgments affirmed in part and vacated in part.

Sognier, C. J., McMurray, P. J., Birdsong, P. J., Beasley, Andrews and Johnson, JJ., concur. Pope and Cooper, JJ., dissent.

Pope, Judge,

dissenting.

I concur in Division 1 of the majority opinion and the holding therein that defendant’s separate conviction and sentence for rape must, under the facts of this case, be vacated. I respectfully dissent, however, to the affirmance of the trial court’s denial of defendant’s motion for continuance. The defendant had been granted the right to inspect and test the evidence. Because the defendant was indigent, he was entitled to the necessary expenses of trial and the testing which he had been granted the opportunity to conduct would have to have been conducted at the State’s expense. Thus, whether he requested a continuance for the State to conduct the test or a continuance so that the State could pay for him to conduct an independent test, the practical result was the same. I believe the facts of this case show the defendant did all he was required to do to preserve his right to conduct scientific testing and the trial court should have granted the continuance.

As the majority points out, defendant’s appointed counsel had been led to believe that DNA testing would be performed by the State. To assure defendant’s own opportunity to perform the test, however, defendant’s counsel filed a motion to inspect, examine and test physical evidence, which the trial court granted 14 days before trial. According to the undisputed assertions in defendant’s motion for continuance, the prosecuting attorney informed the defendant’s attorney that a DNA test would be performed; however, at a pre-trial conference three days after the motion to test was granted, both attorneys learned for the first time that no such test had been performed. The attorneys were informed by a representative of the State Crime Lab that a DNA analysis would take a minimum of nine weeks. The following day defendant filed his motion for continuance and the court conducted a hearing on the motion but denied it.

The identity of the perpetrator was the central issue in the prosecution on the charges relating to the burglary and sexual assault of the alleged rape victim. Defendant thus argues that DNA evidence is critical to his defense of these charges and that the trial court abused its discretion in denying his motion for a continuance so that the test could be performed. A showing of due diligence is required for a continuance in a criminal case. OCGA § 17-8-20. The record shows defendant reserved his right to conduct a timely test of physical evidence by filing a motion which the trial court granted. In addition to filing a motion to test the evidence himself, defendant presented evidence that the State represented to defendant that the State would perform a DNA test. Within three days of obtaining permission from the court to test the evidence himself, defendant discovered the test had not been performed by the State and immediately moved for a continuance so the test could be performed. Thus, pursuant to the facts of this case, we cannot conclude that the defendant failed to show due diligence to support his motion for continuance.

In concluding that the motion for continuance was properly denied, the majority opinion relies on the fact that the motion did not request the opportunity for defendant to conduct an independent test but requested a continuance to permit the State to conduct the test. The analysis of the majority opinion is based upon the general rule that a defendant has no right to have scientific testing performed by the State and thus the majority concludes it was not an abuse of discretion for the trial court to deny the motion for continuance. However, as noted above, in this case the trial court appointed counsel to defendant based on a finding of indigence. As an indigent, defendant is entitled to the necessary expenses of trial. OCGA § 17-12-5. The trial court had already granted defendant the opportunity to test physical evidence. Pursuant to this grant, defendant could have requested funds to hire an independent expert to conduct the test. See Thornton v. State, 255 Ga. 434 (339 SE2d 240) (1986). Instead, his motion for continuance indicates he requested the State Crime Lab to perform the test. The practical result is the same, and to deny defendant the opportunity to obtain the test results that he had already been granted the right to obtain simply because his motion for continuance was phrased so as to request the State to conduct the test, as opposed to pay for it, is hypertechnical.

The State’s only argument against this enumeration of error is that reversible error has not been shown by the denial of the motion for continuance because the evidence of defendant’s guilt presented at trial was overwhelming. This begs the question, however, of how the incriminating evidence would have been judged by the jury if exculpatory DNA evidence had been presented. Although we agree that the evidence presented was more than sufficient to sustain the conviction, no one can know what the results of the DNA test would have been. Because DNA evidence is arguably conclusive, neither can we predict what the verdict would have been if the DNA evidence had been exculpatory.

Decided December 4, 1992.

Short, Fowler & Castellow, Lester M. Castellow, for appellant.

H. Lamar Cole, District Attorney, Charles M. Stines, Assistant District Attorney, for appellee.

Without evidence in the record to show whether the test result would be inculpatory or exculpatory, it is impossible to determine whether the defendant is entitled to a new trial. If the test were conducted and yielded admissible exculpatory evidence, then the defendant should be entitled to a new trial. Of course, if the test yielded incriminating evidence, defendant would not be entitled to a new trial because sufficient evidence was presented at the trial to sustain the jury’s guilty verdict. Consequently, I believe the appropriate solution to the problem presented by this case would be to affirm the judgment of the trial court (with the exception of the sentence for rape, as set forth in Division 1 of the majority) with direction that the defendant be afforded a reasonable opportunity to have the desired scientific examination of the evidence conducted and afforded the opportunity to file a motion for new trial within 30 days of obtaining the report of the result.

I am authorized to state that Judge Cooper joins in this dissent.


source: Caselaw Access Project

author: Sognier, Chief Judge. McMurray, Presiding Judge,

license: Public Domain

text:
    A92A1470.
    BALLEW v. THE STATE.
    (426 SE2d 254)
   Sognier, Chief Judge.

Jonathan Ballew pled guilty to driving under the influence of alcohol, underage possession of alcohol by consumption, running a red light, and manufacturing a false government identification document. He appeals from the denial of his motion to suppress.

1. The transcript of the guilty plea hearing reveals that the trial court sufficiently indicated its exercise of discretion to accept the guilty plea on condition that the appellate issue was preserved. Applying the less restrictive approach to interpreting the methods in which appellants can preserve such conditional pleas that was adopted by this court in Springsteen v. State, 206 Ga. App. 150 (424 SE2d 832) (1992), the transcript reveals that both appellant and the State presented to the trial judge their agreement that appellant would “be allowed to appeal the [denial of his] motion [to suppress] even though he’s pleading guilty.” There is not the slightest indication that the trial judge did not approve, nor is there any doubt that appellant entered his guilty plea in reliance upon the trial judge’s acceptance of his right, to appeal the denial of his motion to suppress. Given counsel’s discussion of this matter in the presence of the trial judge and the absence of any indication that the trial judge disapproved, we conclude that the trial judge tacitly approved the conditional guilty plea and that the propriety of the ruling on the motion to suppress is preserved for appeal. Accordingly, “we address the issue which all parties on the trial level expect [this court] to decide.” (Footnote omitted.) Springsteen, supra.

2. Appellant contends the trial court erred by denying his motion to suppress because the police failed to honor his request for an independent blood test. Evidence was adduced at the hearing on appellant’s motion that City of Gainesville Police Officer Brian Buffington stopped appellant after witnessing him drive through an intersection without stopping at the flashing red light. Based on the smell of alcohol around appellant and his possession of a cup filled with a liquid the officer believed to be alcohol, the officer administered an alco-sensor test. The results were positive, and Buffington arrested appellant for DUI and running the red light. Buffington testified that after placing appellant in his patrol car he read appellant his implied consent rights and that appellant agreed to take the State-administered test. Buffington testified that he could not remember appellant making any comments other than agreeing to take the test, expressing concern about his college scholarship, and apologizing for running the light. Officer Charles Newman, who administered the intoximeter test, testified that appellant did not ask for an additional blood test. The officer at the detention center where appellant was taken several hours after the State test was administered could not remember appellant requesting an additional blood test.

Appellant testified that Buffington read him his implied consent rights at the police station and that when the officer said “you have the right to an independent test which could be a breath test, a blood test, or a urinalysis[,] I said, well I’d rather take the blood test or the urinalysis, if I could.” Appellant testified he also asked Newman “is it possible for me to get a blood test, a different test?” after he had taken the State-administered test and during the fingerprinting process. Appellant stated he made the same request of the detention center officer, but it was denied.

The trial court denied appellant’s motion, stating that “[t]he statements of [appellant] to the first officer [Buffington] seem to me to be before the test was given, before the State-administered test is given, and I don’t think that’s sufficient to do whatever he needs to do to get his test. I think he would have had to renew that statement after the State’s test. The statement to the officer at the [detention center] seems to me to be too long after the incident. . . . The only one then in question is what was said to Officer Newman, which seems to me to be not as clear a request as it could be. For that reason, I am denying the motion.”

It is apparent that the trial court did not rule on the conflict in the testimony between appellant and the police officers as to whether appellant had requested an additional test. Rather, the trial court based its ruling on a legal determination that even under appellant’s version of the facts, his request to Buffington was premature and his request to Newman was-not sufficiently clear. We need not address the latter determination, however, because as a matter of law the trial court erred by finding that appellant’s request for an independent test was premature because it was made before the State-administered test was given.

“[T]he State has the right to have its test performed before the defendant’s right to take a test attaches because a refusal to take the test constitutes a waiver of the right to an independent test. If he elects to have an independent test done, he may make this election after being informed of his informed consent rights.” State v. White, 188 Ga. App. 658, 659 (373 SE2d 840) (1988). Accord Norfleet v. State, 196 Ga. App. 548, 550 (396 SE2d 237) (1990). Under appellant’s version of the events, he sufficiently exercised his right to an independent test when Buffington read the implied consent rights to him. See id. We note that there is no evidence that appellant voluntarily withdrew his request for the additional test. Compare Duffee v. State, 184 Ga. App. 247, 248 (1) (361 SE2d 239) (1987).

Therefore, since the trial court did not rule on the conflict in the evidence on the question whether appellant did request an independent test, the trial court’s ruling on appellant’s motion is vacated and this case is remanded to the trial judge for a determination of the factual issues and an application of the law consistent with this opinion.

Judgment vacated and case remanded.

Carley, P. J., Pope, Beasley, Cooper and Johnson, JJ., concur. McMurray, P. J., Birdsong, P. J., and Andrews, J., dissent.

McMurray, Presiding Judge,

dissenting.

I respectfully dissent as the trial court did not expressly approve defendant’s request to enter the conditional guilty pleas as is required by Mims v. State, 201 Ga. App. 277, 278 (1) (410 SE2d 824).

“[Defendants have no right to condition guilty pleas upon reserving the appeal of any issues, and defendants may only reserve the appeal of such issues when the trial court, in the exercise of its discretion, allows a defendant to do so as part of a negotiated plea. Therefore, unless the trial court expressly approves the reservation of the issue and accepts the guilty plea with that condition, the issue is not preserved; and an unconditional guilty plea will waive any defenses and objections (Massey v. State, 137 Ga. App. 484, 485 (224 SE2d 117)) except an appellate issue of whether such plea was voluntarily made by appellant and accepted following proper inquiry by the trial court.” Mims v. State, 201 Ga. App. 277, 278 (1), 279, supra.

At arraignment, defendant made a request to preserve for appeal the issue of the denial of his motion to suppress and the State announced that such a reservation of a right to appeal was part of the plea negotiations. Defense counsel then stated that defendant “understands that if he’s unsuccessful in his appeal that the sentence today is his sentence.” The trial court did not respond to defendant’s request to enter the conditional guilty pleas, but made general inquiry as to the knowing and voluntary nature of defendant’s guilty pleas. The trial court then accepted the guilty pleas and sentenced defendant. These circumstances do not reveal that the trial court expressly, or even tacitly, approved defendant’s request to enter the conditional guilty pleas.

“[I]t is the responsibility of the trial court to decide whether to exercise its discretion and accept a guilty plea on condition that appellate issues are preserved.” Mims v. State, 201 Ga. App. 277, 278 (1), 279, supra. In the case sub judice, the majority holds that the trial court’s silence in response to defendant’s request to enter the conditional pleas was an exercise of discretion and an approval of the guilty pleas. I do not. Further, it is my view that the majority’s reliance on Springsteen v. State, 206 Ga. App. 150 (424 SE2d 832) (1992), is misplaced.

In Springsteen v. State, 206 Ga. App. 150, supra, the trial court satisfied its duty to expressly approve conditional guilty pleas by discussing the request with counsel and by stating to defense counsel, “ ‘If you’re satisfied [that such a reservation of a right to appeal is appropriate], I’m satisfied.’ ” However, the holding in Springsteen was expressly limited to the circumstances of that case. Specifically, this Court stated that its holding is based on “the obvious fact that the plea was conditioned on the right to appeal the court’s search and seizure ruling and that the court agreed to such procedure appears on the record.” Id. In fact, this Court expressly recognized Mims and stated that “courts should precisely express on the record an approval of the reservation of appellate issues when exercising the discretion to accept the plea.” Id.

It is my view, that the trial court’s silence in response to defendant’s request to enter the conditional guilty pleas did not meet the express approval requirement of Mims v. State, 201 Ga. App. 277, supra, i.e., silence does not amount to an exercise of discretion nor does it amount to an approval (either express or implied) of a conditional plea agreement. Consequently, I would affirm the judgment of the trial court since defendant’s admission of guilt constitutes a waiver of all known and unknown defenses and since defendant does not challenge the knowing and voluntary nature of his guilty pleas. See Mims v. State, 201 Ga. App. 277, 278 (1), supra.

Decided December 4, 1992.

Whitmer & Law, George H. Law III, for appellant.

Lydia S. Jackson, Solicitor, for appellee.

I am authorized to state that Judge Andrews joins in this dissent.


author: Carley, Presiding Judge. Beasley, Judge, Johnson, Judge,

text:
    A92A1510.
    PITTS v. THE STATE.
    (426 SE2d 257)
   Carley, Presiding Judge.

Appellant was found guilty of possessing more than one ounce of marijuana, two counts of manufacturing marijuana, and possession of a firearm by a convicted felon. He appeals from the judgments of convictions and sentences entered by the trial court on the findings of guilt.

1. Relying upon the equal access rule, appellant enumerates as error the denial of his motion for directed verdicts of acquittal.

The evidence shows that law enforcement officers found more than one ounce of marijuana seeds under the driver’s seat of a truck owned and driven by appellant. At the time of this discovery, appellant was the sole occupant of the truck. Officers subsequently discovered about 2,000 marijuana seedlings in an old tobacco barn behind appellant’s residence and several hundred mature marijuana plants among pine trees on nearby land. Although title to the land was not in appellant, there was evidence that the areas in question were a part of his farm.

“The [‘equal access’] rule, as it applies in the automobile context, is merely that evidence showing that a person or persons other than the owner or driver of the automobile had equal access to contraband found in the automobile may or will, depending upon the strength of the evidence, overcome the presumption that the contraband was in the exclusive possession of the owner or driver. [Cits.]” Castillo v. State, 166 Ga. App. 817, 821-822 (2) (305 SE2d 629) (1983). Evidence merely that appellant had parked the truck in another individual’s driveway does not show that that other individual or anyone else had “equal access” to the truck and does not raise “a reasonable doubt by rebutting the presumption of possession. [Cit.]” (Emphasis in original.) Moon v. State, 194 Ga. App. 777, 778 (2) (392 SE2d 19) (1990). Even assuming that evidence of another individual’s mere prior presence in the truck may have been sufficient to rebut the presumption of appellant’s possession, it certainly did not mandate a directed verdict of acquittal, because that individual denied placing the jar of marijuana seeds in the truck. “[T]here was a question of fact for the jury to resolve.” Reed v. State, 186 Ga. App. 539, 540 (367 SE2d 809) (1988).

The “equal access” rule generally “does not apply to ‘ “marijuana plants growing outside, which require a period of months to grow, mature, and be harvested.” (Cits.)’ [Cit.] As to the plants in [the barn], even if the doctrine applies to them because they were portable ([cits.]), this does not help appellant. It is true that ‘ “(m)erely finding contraband on premises occupied by a defendant is not sufficient to support a conviction if it affirmatively appears from the evidence that persons other than the defendant had equal opportunity to commit the crime.” (Cit.)’ [Cit.] However, ‘(w)here[, as here,] there is evidence other than “equal access” connecting an accused to contraband, it is for the jury to determine guilt or innocence.’ [Cit.]” Blitch v. State, 188 Ga. App. 487, 488 (373 SE2d 227) (1988). Appellant was shown to be in possession of the same type of black tray as that in which the seedings were found to be growing and of the same type of material as that which was found around the root systems of the mature plants. Moreover, appellant’s possession of marijuana seeds in his truck supports a finding of his possession of the marijuana found on his farm.

“ ‘The totality of the evidence was sufficient to connect [appellant] to possession of [all three quantities] of the (marijuana), even though the evidence [may] have authorized a finding that others had equal access to the same (marijuana). (Cits.) When viewed in the light favorable to the verdict, as an appellate court is required to do on appeal, the evidence was sufficient to enable any rational trier of fact to find the existence of guilt of ([appellant]) for the offenses charged, beyond a reasonable doubt. (Cit.) Hence, based upon the evidence cited above, the trial court did not err in refusing to direct a verdict of acquittal. (Cits.)’ [Cit.]” Hunt v. State, 196 Ga. App. 694, 695 (2) (396 SE2d 802) (1990).

2. The trial court properly refused to allow appellant to introduce evidence that another individual, who lived within one-and-one-half miles of appellant’s farm, had been previously charged with possession of marijuana.

“The evidence offered by appellant did not logically tend to prove or disprove either that [such third party] committed the crime or that appellant did not commit the crime. The evidence offered would have served merely to divert the jury’s attention from the . . . pertinent facts of the case. . . . Accordingly, we find no error with the trial court’s exclusion of the evidence. [Cit.] Appellant’s reliance on Henderson v. State, 255 Ga. 687 (341 SE2d 439) (1986) and Walker v. State, 260 Ga. 737 (399 SE2d 199) (1991) is misplaced.” McNeil v. State, 202 Ga. App. 900, 901-902 (415 SE2d 922) (1992).

3. Although the trial court ostensibly imposed fully probated sentences, it nevertheless made appellant’s 48-month continuous and uninterrupted incarceration in the Colquitt County Correctional Institution a special condition thereof. Appellant enumerates this special condition of his probation as error.

A trial court certainly has broad discretion to determine the terms and conditions of probation. “ ‘ “In the absence of express authority to the contrary, we see no logical reason why any reasonable condition imposed for probation or suspension of a sentence by a trial court should not be approved.” ’ ” (Emphasis supplied.) Grant v. State, 176 Ga. App. 460 (1) (336 SE2d 354) (1985). See also Inman v. State, 124 Ga. App. 190 (183 SE2d 413) (1971). The issue to be resolved, however, is whether, in the absence of a clear legislative intent, a period , of continuous and uninterrupted “incarceration” can ever be considered a reasonable condition of “probation.” “Incarceration” and “probation” are generally considered to be mutually exclusive concepts. “Incarceration” denotes “[i]mprisonment; confinement in a jail or penitentiary.” (Emphasis supplied.) Black’s Law Dictionary (5th ed. 1979). “Probation,” on the other hand, means the “[s]ystem of allowing a person convicted of some lesser offense (frequently juveniles or first offenders) to avoid imprisonment, under a suspension of sentence, during good behavior, and generally under the supervision of a probation officer.” (Emphasis supplied.) Black’s Law Dictionary (5th ed. 1979). Thus, a sentence of “incarceration” denotes a continuous period of confinement in a jail or penitentiary uninterrupted by periods of freedom, whereas a sentence to be served on “probation” denotes a limitation of freedom short of requiring the service of a continuous and uninterrupted period of confinement in a jail or penitentiary. A defendant sentenced to serve a continuous and uninterrupted period of confinement in a jail or penitentiary is “incarcerated.” A defendant sentenced to undergo other forms of confinement is on “probation.” See, e.g., OCGA § 42-8-35.1 (providing for a 90-day period of confinement in a probation boot camp, rather than a jail or penitentiary, as a condition of probation); OCGA § 42-8-35 (6) (providing that the trial court may order that the defendant “[r]emain within a specified location” as a special condition of probation). That “incarceration” and “probation” are mutually exclusive concepts has been recognized in this state. “ [Conditions of probation may be imposed for punitive purposes, such as by restricting a person’s liberties short of total incarceration. . . .” (Emphasis supplied.) Grant v. State, supra at 461 (1). “Limited as their freedom undoubtedly is, probationers are still individuals, not inmatesf,] [hjaving been deemed worthy to stay in society. . . .” (Emphasis supplied.) Inman v. State, supra at 194.

There are jurisdictions which recognize that a term of continuous and uninterrupted incarceration in a jail or penitentiary may be imposed as a condition of probation. However, “ ‘[jurisdictions holding that imprisonment is a valid condition of probation have generally relied on express statutory authority permitting such action. . . .’ [Cit.]” Thomas v. Maryland, 582 A2d 586, 588 (Md. App. 1990). See also Anno., 6 ALR4th 446 (1981). There is no such express statutory authority in this state. “ ‘[W]hile we recognize that incarceration as a condition of probation might be beneficial in [many] cases, we believe that “this policy and the limits which should be placed upon it are matters properly for the legislature to consider and not for this court to attempt to read into the present statute(s).” ’ [Cits.]” Thomas v. Maryland, supra at 588. “There are sound practical reasons why a legislative solution is more appropriate. A statute permits the creation of a more flexible set of standards for the length and place of incarceration as a condition of probation. It may also set the general class of offenders to which incarceration as a condition of probation is applicable.” Spencer v. Whyte, 280 SE2d 591, 594 (II) [3] (W. Va. 1981). In the absence of express statutory authority recognizing continuous and uninterrupted incarceration in a jail or penitentiary as a viable condition of probation and establishing the parameters thereof, there are no guidelines for determining how, when and why that condition is to be imposed. A trial court may consider a four-year term of such incarceration to be “reasonable” under a given set of circumstances. A majority of this court may disagree and consider the four-year term of continuous and uninterrupted incarceration in a jail or penitentiary to be “unreasonable.” The Supreme Court would then be called upon to decide whether the trial court or this court was correct in determining the “reasonableness” of a four-year term of incarceration under the given set of circumstances. Thus, in the absence of express legislative authority, no sentence imposing a period of continuous and uninterrupted incarceration in a jail or penitentiary as a special condition of probation could ever be deemed “reasonable” unless and until an appellate court has re-examined the circumstances and made its own subjective determination. It has long been recognized that jurisdiction to determine the length of sentence is in the trial court, and that appellate courts are not authorized to redetermine whether the sentence imposed is “reasonable” in length but are limited to consideration of whether “the trial [court] impose[d] a sentence within the limits fixed by law. ...” (Emphasis supplied.) Harper v. State, 14 Ga. App. 603 (4) (81 SE 817) (1914). In the absence of express statutory authority for a trial court to impose any period of continuous and uninterrupted incarceration in a jail or penitentiary as a special condition of probation, we are compelled to hold that the instant sentence imposed upon appellant was not “within the limits fixed by law” and must be reversed. It is not the four-year term of incarceration that is “unreasonable,” but the imposition of any term of continuous and uninterrupted incarceration in a jail or penitentiary as a special condition of probation that is unauthorized by law.

“ ‘[A] judgment of conviction will not be reversed and a new trial granted because of an error or irregularity in the manner of sentencing; the remedy is for the court to recall the defendant and sentence him as provided by law. [Cits.]’ [Cits.] The case is therefore remanded with direction that the defendant be resentenced in accordance with law.” (Emphasis supplied.) Sherman v. State, 142 Ga. App. 691, 692 (237 SE2d 5) (1977). In accordance with law, the trial court can sentence appellant to a term of continuous and uninterrupted incarceration in a jail or penitentiary with the balance of his sentence to be served on probation. However, the trial court will not be authorized to designate where that term of incarceration is to be served. See In re Prisoners Awaiting Transfer, 236 Ga. 516 (2) (224 SE2d 905) (1976). In the alternative, the trial court can, in accordance with law, sentence appellant to a fully probated sentence upon such conditions as it is authorized to impose, including either confinement in a local jail for intermittent periods, such as weekends, or limited confinement, other than in a jail or penitentiary, for a continuous period. However, the trial court will not be authorized to make a term of continuous and uninterrupted incarceration in a jail or penitentiary a condition of that probation.

Judgments affirmed with direction.

Sognier, C. J., McMurray, P. J., Birdsong, P. J., and Andrews, J., concur. Pope, Beasley, Cooper and Johnson, JJ., concur specially.

Beasley, Judge,

concurring specially.

I fully concur in Divisions 1 and 2 of the opinion and in the reversal of the sentence as imposing a statutorily unauthorized punishment. I respectfully disagree with the reason for the holding, that is, “the absence of express statutory authority for a trial court to impose any period of continuous and uninterrupted incarceration in a jail or penitentiary as a special condition of probation. . . .”

The court sentenced Pitts to serve 10 years as to Count 1, 5 years consecutive as to Count 2, and 5 years consecutive thereafter as to Count 3, “in the State Penal System or such other institution as the proper authority of said system may direct to be computed as provided by law.” The whole sentence was probated upon a number of conditions, including: “Spend the next 24 months at Colquitt County Correctional Institution as a special condition of probation imposed as to Count 1,” and immediately thereafter, spend another 24 months at the same institution as to Count 2. Later, a five-year sentence of probation was added for the possession count, which was “to run concurrently with the sentence of probation in Count 1.” In sum, defendant was to serve twenty years, the first four of which he was to be incarcerated in a county facility and the balance of which he was to be at liberty, under the remaining conditions of probation. Thus, the first four years were not, in effect, on probation. They simply constituted imprisonment in the county’s custody rather than in the State’s custody. This avoided the term of years authorized by law (OCGA §§ 16-13-30 (c), (d); 16-11-131 (b)), which would have placed defendant into the State’s custody.

OCGA § 17-10-1 (a) (1) grants to the sentencing judge “power and authority to suspend or probate all or any part of the entire sentence under such rules and regulations as the judge deems proper, subject to the conditions set out in this subsection [(a)].” Condition (3) (A) clearly contemplates that the broad power and authority of the sentencing judge to impose the privilege of probation, in lieu of imprisonment for a term of months (for misdemeanors) or a term of years in the State’s custody (for felonies), includes certain types of confinement. It speaks of probationers who are “assigned to an alternative probation confinement facility”; it requires probationers who are revoked for certain reasons to serve not in the State prison system but rather in “a probation detention center, probation boot camp, diversion center, weekend lock up, or confinement in a local jail or detention facility, or other community corrections alternatives available to the court or provided by the Department of Corrections.”

A similar provision is found in OCGA § 42-8-34.1 (b). It requires the court in probation revocations (other than those revoked because of a new felony offense) to “consider the use of alternatives [to a term of months or years] to include community service, intensive probation, diversion centers, probation detention centers, special alternative incarceration, or any other alternative to confinement deemed appropriate by the court or as provided by the state or county.” See also OCGA § 42-8-35.1, providing for special alternative incarceration as a condition of probation.

OCGA § 42-8-35 complements OCGA § 17-10-1 by specifying that “[t]he court shall determine the terms and conditions of probation. . . .” It lists ten conditions, which are non-exclusive. Parkerson v. State, 156 Ga. App. 440 (274 SE2d 799) (1980). Included is item (6), “Remain within a specified location,” which obviously contemplates a restriction on liberty and on freedom of movement. Confinement in a diversion center is not regarded as a term of imprisonment. Chandler v. State, 257 Ga. 775 (364 SE2d 273) (1988). “Reasonable conditions,” Grant v. State, 176 Ga. App. 460 (1) (336 SE2d 354) (1985), quoting from State v. Collett, 232 Ga. 668, 670 (208 SE2d 472) (1974), thus can include reasonable types and periods of confinement short of total incarceration, i.e., a term of months for misdemeanors or a term of years for felonies. As measured in Inman v. State, 124 Ga. App. 190, 194 (183 SE2d 413) (1971), “[conditions . . . should be . . . not unduly restrictive of [the probationer’s] liberty. . . .” This condition, like the others, gives the defendant the choice of limited freedom or no freedom at all. The latter is the case when a term is imposed, with no choice dependent on the prisoner’s behavior.

The sentence imposed on Pitts amounted to the latter, two terms of total incarceration.

Johnson, Judge,

concurring specially.

I concur fully in Divisions 1 and 2 of the opinion. I also concur in the conclusion in Division 3 that the trial court erred in making the appellant’s 48-month incarceration in the county jail a condition of probation. I believe the trial court abused its discretion in imposing such a lengthy jail term as a condition of probation. However, I strongly disagree with the holding in Division 3 that a trial judge, absent express statutory authority, has no power to order a defendant to serve a reasonable period of time in jail as a condition of probation.

The legislature has already vested trial courts with broad discretion in imposing conditions of probation. Grant v. State, 176 Ga. App. 460 (1) (336 SE2d 354) (1985). “The judge imposing the sentence is granted power and authority to suspend or probate all or any part of the entire sentence under such rules and regulations as the judge deems proper.” OCGA § 17-10-1 (a) (1). “The court shall determine the terms and conditions of probation.” OCGA § 42-8-35. “In the absence of express authority to the contrary, we see no logical reason why any reasonable condition imposed for probation or suspension of a sentence by a trial court should not be approved.” (Citations and punctuation omitted.) (Emphasis supplied.) Grant, supra at 460. Imposition of a reasonable term of incarceration as a condition of probation is not expressly prohibited by the legislature. Thus, such a condition should be approved. In my view, the broad discretion already given to trial courts by the legislature includes the authority to impose a reasonable period of incarceration as a condition of probation.

This sentencing option is widely employed by trial judges in Georgia. We may infer from the fact that this is a case of first impression in Georgia that trial judges have not abused their discretion in using this sentencing option. The fact that the legislature has not limited the ability of trial courts to use this sentencing option also supports an inference that trial judges have not abused their discretion. Furthermore, the fact that the legislature has not acted other than as noted above indicates that the broad sentencing discretion it has granted is appropriate and puts in the hands of trial judges another option in fashioning sentences which meet the needs of the community and the defendant. There are a number of instances in which a traditional split sentence hurts the needs of both the defendant and the community. For example, a gainfully employed defendant immediately sent to jail upon sentencing is likely to lose his job. Trial courts have addressed this problem by imposing periods of incarceration on weekends and during vacation periods as a condition of probation in order to fashion an appropriate sentence without hurting society or placing undue burdens upon defendants and their families. The majority opinion, unfortunately, strips trial judges of such effective sentencing options. This court should not further restrict the already limited sentencing options of the State’s trial courts.

Decided December 4, 1992.

Kirbo & McCalley, Thomas L. Kirbo III, Jon V. Forehand, for appellant.

H. Lamar Cole, District Attorney, Charles M. Stines, Assistant District Attorney, for appellee.

Roger A. Baruch, James C. Bonner, Jr., amici curiae.

I am authorized to state that Judge Pope and Judge Cooper join in this special concurrence.

      2 See Cross v. Huff, 208 Ga. 392, 396 (67 SE2d 124) (1951).

       The court is quoting from American Bar Association tentative draft of “Standards Relating to Probation,” Institute of Judicial Administration (1970), Section 3.2 (b). The wording was retained in the Approved Draft, 1970.


author: Beasley, Judge. Andrews, Judge,

text:
    A92A1552.
    HENDERSON v. THE STATE.
    (426 SE2d 264)
   Beasley, Judge.

In his sole enumeration of error, Henderson claims that the court erred in denying his plea of former jeopardy in that it is unconstitutional to try him for the crimes of criminal damage to property and simple battery after he has been convicted of violating a county ordinance prohibiting disorderly conduct. He was arrested and charged with disorderly conduct, which is a violation of a county ordinance, pled guilty to this charge, and paid a fine.

A police officer’s incident report details the events: “On March 16, 1991 at aprox. 0016 hrs., I was dispatched to a domestic disturbance at 2250 Williams Lane. Neighbors reported hearing a disturbance, and then hearing breaking glass. Upon my arrival, I spoke to Mr. Henderson and Ms. Akins, who stated that they had been drinking at Zarahnoffi’s, and while they were there, someone broke the windshield of their vehicle. Subject’s stated that they are certain that Ms. Delong was the person who had damaged the vehicle. Ms. Delong is offender Henderson’s ex-girlfriend.

“This reportedly started an argument between Mr. Tony Henderson and Ms. Akins and on arrival back at the residence Ms. Akins slammed the door of the house in an attempt to prevent Mr. Henderson from entering. Mr. Henderson attempted to prevent the door from shutting and accidentally struck the window in the door, breaking the window and severely cutting his hand. Both offender Henderson and Akins were VERY strongly warned about Disorderly Conduct, and were told that any other disturbance at the residence would result in both of them being arrested. No arrest was made at this time, so that Mr. Henderson could seek medical treatment for his injuries.

“At aprox. 0251 hours, I received another call that the neighbors again had reported a disturbance and the sound of glass breaking. Upon my arrival, I found Mr. Henderson and Ms. Akins standing in the driveway beside a vehicle which had a windshield and back window broken out. When I asked what was going on, Mr. Henderson stated: ‘We got in a fight, and I broke out her windows.’ When I asked Ms. Akins, she stated: ‘She came over here, and I jumped her.’ I placed both subjects under arrest at this time, and placed them in my patrol vehicle. . . .”

The owner of the vehicle and Ms. DeLong filed complaints against Henderson in the magistrate’s court. The owner’s complaint outlined the damage to his vehicle as a result of Henderson’s actions; Ms. DeLong’s complaint stated that Henderson struck her with a stick. Henderson was indicted in superior court for simple battery and criminal damage to property in the second degree. The indictment charged that Henderson intentionally damaged the automobile and struck Ms. DeLong across the face and body with a stick.

Henderson argues that since the charges were based on the same set of facts, the indictment pending against him is barred. Further, he argues that “[i]t was stipulated by the State and Appellant at the hearing on this matter that Appellant was previously convicted for committing the crime of disorderly conduct in the Magistrate Court of Forsyth County based upon the same facts upon which the subsequent indictment for criminal damage to property and simple battery rested.”

We agree. The charges of simple battery and criminal damage to property in the second degree were based on the same facts which underlay defendant’s plea of guilty and the resulting conviction of disorderly conduct. Trial on the indictment would constitute double jeopardy under the Fifth and Fourteenth Amendments to the United States Constitution. State v. Burroughs, 246 Ga. 393 (271 SE2d 629) (1980), applying Illinois v. Vitale, 447 U. S. 410 (100 SC 2260, 65 LE2d 228) (1980), and In re Nielsen, 131 U. S. 176 (1889). As in Burroughs, “[Henderson] may not be retried for simple battery based upon the striking ... [of Ms. DeLong] incident [and criminal damage to property based upon the striking of the vehicle incident] for which he was convicted of disorderly conduct.” Id. at 394.

This case is decided solely on the federal constitutional ground. Defendant raised also the state constitutional provision and OCGA §§ 16-1-7; 16-1-8 in his plea of former jeopardy. However, he expressly abandoned the statutory grounds at the hearing. He cited only Burroughs, supra, as supporting authority, which case applies only the federal constitution and United States Supreme Court cases construing its Double Jeopardy Clause.

The trial court denied the plea, although it cited Burroughs and two subsequent Court of Appeals cases, the latter one of which quoted from the former: “ ‘[S]ince there is nothing in the record here which shows that [any of the] convictions were based upon proof of the same facts, appellant has no viable claim of double jeopardy under the United States Constitution. Cf. State v. Burroughs, [supra] . . .’ Fuller v. State, 169 Ga. App. 468, 469 (313 SE2d 745) (1984).” Parker v. State, 170 Ga. App. 333, 334 (317 SE2d 209) (1984). Thus the trial court ruled on the federal constitutional claim.

In this court, too, appellant relies on the United States’ Double Jeopardy Clause, citing Burroughs. The other case he cites in support of his position is Bailey v. State, 184 Ga. App. 890, 892 (2) (363 SE2d 172) (1987). Although the double jeopardy issue in that case was purportedly decided on a state constitutional ground, it actually and expressly was based on Burroughs, supra, and Carnes v. State, 242 Ga. 286 (2) (248 SE2d 660) (1978), clearly not state constitutional cases. The two constitutional double jeopardy provisions do not mean the same thing. See State v. Estevez, 232 Ga. 316 (206 SE2d 475) (1974).

Thus, only the federal constitution is involved here. See Lee v. State, 177 Ga. App. 698 (340 SE2d 658) (1986).

The trial court erred because this case is like Burroughs, not Fuller and Parker. We do not have a transcript of the guilty plea proceeding before the magistrate, so we do not know precisely what factual basis he found for the conviction on the plea. Nor does the record show what section of the disorderly conduct ordinance was applied. As to the ordinance, it appears that only subsection (3) would suit. It characterizes disorderly conduct as “[engaging] in conduct or behavior likely to provoke or incite an immediate breach of the peace.”

OCGA § 16-5-23 (a) provides that one “commits the offense of simple battery when he either (1) Intentionally makes physical contact of an insulting or provoking nature with the person of another; or (2) Intentionally causes physical harm to another.” OCGA § 16-7-23 (a) (1) provides that a person commits criminal damage to property in the second degree when he “[i]ntentionally damages [the] property of another person without his consent. ...”

As to the factual basis for the State offenses, the district attorney stated below that the indictment was based on “the same parties and dealing with the same situation that was ongoing that night that. . . they were charged with and a disposition that was rendered by the Magistrate.” According to the incident report, which is the State’s version of the events, the disorderly conduct charge was based on the “disturbance” which, insofar as Henderson was concerned, was constituted of his breaking the car windows and striking his ex-girl friend. Henderson’s breaking of the window in the door of Ms. Akins’ residence occurred accidentally, according to the police, when Henderson tried to prevent the door from closing.

What former Chief Justice Hill wrote in his dissent in the first Burroughs appearance before the Georgia Supreme Court (State v. Burroughs, 244 Ga. 288, 292-293 (260 SE2d 5) (1979)), which was adopted in the second appearance and relied upon by appellant, applies here: “[T]he crime of simple battery [in that case] requires proof of no fact that disorderly conduct does not . . . [E]ven where each crime requires proof of a fact that the other does not, double jeopardy attaches on a successive prosecution where each crime admits (and the state relies upon) proof of the disparate required fact as proof of the other required fact; ...”

Here, in order to prove the simple battery and the criminal damage to property, the State would have to prove the very facts it relied on for the ordinance conviction. “[T]he Double Jeopardy Clause bars any subsequent prosecution in which the government, to establish an essential element of an offense charged in that prosecution, will prove conduct that constitutes an offense for which the defendant has already been prosecuted.” (Emphasis supplied.) Grady v. Corbin, 495 U. S. 508, 521 (110 SC 2084, 109 LE2d 548) (1990).

Appellant’s plea was a valid exercise of the federal Double Jeopardy Clause.

Judgment reversed.

Sognier, C. J., Carley, P. J., Pope and Johnson, JJ., concur. McMurray, P. J., Birdsong, P. J., Cooper and Andrews, JJ., dissent.

Andrews, Judge,

dissenting.

I respectfully dissent since I do not agree with the majority that the instant prosecution violates Henderson’s constitutional protection against double jeopardy. The Forsyth County ordinance regarding disorderly conduct provides, in part, that it is unlawful for any person to engage in conduct which is likely to provoke or incite an immediate breach of the peace. OCGA § 16-5-23 (a), which outlines the offense of simple battery, provides that one “commits the offense of simple battery when he either (1) Intentionally makes physical contact of an insulting or provoking nature with the person of another; or (2) Intentionally causes physical harm to another.” OCGA § 16-7-23, which defines criminal damage to property in the second degree, provides that a person commits the offense when he intentionally or recklessly damages the property of another person.

“In State v. Burroughs, 246 Ga. 393, 394 (271 SE2d 629) (1980), the court held that a person convicted of a greater offense cannot thereafter be convicted in a separate trial for the lesser included offense if both convictions are based on proof of the same facts, and that the reverse is also true, i.e., a conviction of a lesser included offense bars subsequent trial on the greater offense.” Bailey v. State, 184 Ga. App. 890, 892 (2) (363 SE2d 172) (1987). Unlike Burroughs, in the instant* case, it was not necessary to the charges for criminal damage to property and simple battery that the State prove the entirety of the charge for disorderly conduct or vice versa. It is apparent from the definitions of the crimes that they are not the same as a matter of law.

Furthermore, the incidents were not the same as a matter of fact. The March 16 incident report shows that the charge for disorderly conduct was based on conduct other than that of damaging the vehicle by striking the vehicle with a stick and of striking Ms. DeLong. Prior to committing those crimes, Henderson was involved in a domestic disturbance with Ms. Akins, he had broken the window on the door to her residence and been warned by the police. Subsequent to this warning, according to the report, there was the sound of a disturbance and of glass breaking. The acts on which the disorderly conduct charge were based were those which involved disturbance of the peace, i.e., those acts which preceded the acts forming the basis for the simple battery and criminal damage to property charges. In other words, it was Henderson’s failure to refrain from creating a disturbance, and not the damaging of property or the battery, which formed the basis for the disorderly conduct charge. By definition, the disorderly conduct charge involved those acts which were likely to incite an immediate breach of the peace, whereas the charges of criminal damage to property and simple battery were based on actions which occurred after Henderson breached the peace. Contrary to the majority’s representations, the district attorney’s description of the events of the evening are not inconsistent with this conclusion.

Because I find that the crimes here lack factual commonality and were not the same as a matter of law, I think the trial court properly denied Henderson’s plea.

Decided December 4, 1992.

J. Russell Jackson, for appellant.

Garry T. Moss, District Attorney, Charles D. Gafnea, Assistant District Attorney, for appellee.

I am authorized to state that Presiding Judge McMurray, Presiding Judge Birdsong and Judge Cooper join in this dissent.


author: Sognier, Chief Judge. Cooper, Judge,

text:
    A92A1609.
    DAVIS v. THE STATE.
    (426 SE2d 267)
   Sognier, Chief Judge.

Metz Leroy Davis III was convicted of driving under the influence of alcohol to the extent he was a less safe driver (OCGA § 40-6-391 (a) (1)). He appeals from the judgment of conviction and sentence.

1. Appellant first contends the trial court erred by denying his motion for directed verdict of acquittal because the evidence was insufficient to support the verdict. Evidence was adduced that appellant spent the evening of December 31,1990 in the company of three other teenagers. Kelly Owenby testified that early in the evening the group rented a videotaped movie and appellant purchased a case of beer using fraudulent identification. She testified that the group returned to her home around 9:00 p.m. and consumed the beer, and she recalled seeing appellant holding a beer in his hand and turning the can to his lips. She estimated that each person drank four to six beers, although she acknowledged that appellant later told her he had poured out the beer in his cans and replaced it with water. Owenby also testified that she and appellant smoked what he said was marijuana, but she could not be certain that the substance was actually marijuana. Owenby testified further that the group left her home around 12:30 a.m. with appellant driving. She opined that he was driving fast and was not a safe driver. She was slightly injured when appellant lost control of the car and it ran off the road and overturned. Tonya Sheriff, who was also at the gathering, testified that she saw appellant drink at least one beer.

The investigating officers testified that at the accident scene, appellant admitted driving 65 mph in a 45 mph zone and told them he lost control of the car when he swerved to avoid a deer. The officers smelled an odor of alcohol but could not pinpoint the source and could not affirmatively determine whether appellant or any of the passengers had been drinking.

Appellant testified that he had only pretended to drink beer and smoke marijuana out of a desire to be accepted by the other teenagers. He said he either held empty cans or had poured out the beer and filled the cans with water, and he stated the “marijuana” was pipe tobacco. He admitted speeding but denied being under the influence of alcohol, explaining that he was in a hurry to get one member of the group home and that he ran off the road after swerving to avoid a deer.

Appellant presented the testimony of a GBI chemist who had tested a blood sample taken from appellant three hours after the accident. The sample was negative for alcohol and drugs. The chemist also testified that, assuming average metabolic rates, a person could eliminate .04 grams of alcohol concentration over a three-hour period, but that he could not determine what appellant’s blood-alcohol content had been at the time of the accident.

The only evidence adduced by the State to establish the charge that appellant was under the influence of alcohol to the extent that he was a less safe driver was as follows: (1) Owenby and Sheriff testified they had observed appellant drinking out of a can of beer; (2) the investigating officers smelled an odor of alcohol at the scene but could not trace the source; and (3) appellant was speeding and lost control of the car, causing the car to veer off the road and overturn. We agree with appellant that this evidence was insufficient to support the verdict. Even if the jury disbelieved appellant’s testimony that he only pretended to drink beer and concluded that he did drink that night, evidence appellant consumed alcohol earlier in the evening does not prove that he was under the influence of alcohol to the extent he was a less safe driver. Accord Sparks v. State, 195 Ga. App. 589, 590 (2) (394 SE2d 407), overruled on other grounds, Green v. State, 260 Ga. 625-626 (1) (398 SE2d 360) (1990) (proof of ingestion of cocaine does not establish driving under the influence of drugs to the extent of being a less safe driver). Certainly the officers’ testimony that they smelled alcohol in the vicinity is insufficient to prove that appellant was in violation of OCGA § 40-6-391 (a) (1), especially given the testimony of the other witnesses that all four passengers had been drinking. Additionally, even assuming that appellant’s admission of speeding combined with the fact of the accident could be used to show that appellant was a less safe driver, no testimony was adduced to show that he was a less safe driver as a result of being under the influence of alcohol. Although Owenby stated that appellant was driving fast and opined that he was a less safe driver, she did not testify that this condition was the result of intoxication or even that appellant was under the influence of alcohol. Compare Chance v. State, 193 Ga. App. 242 (1) (387 SE2d 437) (1989).

Moreover, appellant rebutted the charge of DUI by introducing the results of the blood test performed three hours later, which was negative for alcohol and drugs. The chemist’s speculative testimony concerning the metabolic rates for absorption of alcohol into the body does not establish beyond a reasonable doubt that appellant had an alcohol concentration of .04 grams at the time of the accident. However, even if it did, one is presumed not to be under the influence of alcohol if the chemical test shows a concentration of .05 grams or less. OCGA § 40-6-392 (b) (1).

The instant case presents even less evidence in support of the verdict than was adduced in Clay v. State, 193 Ga. App. 377, 378-379 (2) (387 SE2d 644) (1989), in which we reversed a conviction under OCGA § 40-6-391 (a) (1). In Clay, the arresting officer testified that the defendant’s eyes were red and glassy, that he had an odor of alcohol about his person, and that in the officer’s opinion the defendant was under the influence of alcohol to the extent that he was a less safe driver. (The State also introduced evidence that a breath test yielded a reading of .18 grams alcohol concentration, but the accuracy of the test was questioned and the jury apparently disregarded the finding.) We held that absent any evidence the defendant’s speech was slurred, that he was staggering, or that he was driving erratically, the officer’s opinion was without foundation and thus the evidence was insufficient to support the guilty verdict. Id. at 379.

The reasoning in Clay is even more compelling in the case at bar. Accordingly, we reverse the denial of appellant’s motion for directed verdict of acquittal. See id.; accord Sparks, supra.

2. Our decision in Division 1 renders moot appellant’s other enumeration of error.

Judgment reversed.

Birdsong, P. J., Carley, P. J., Pope, Beasley and Johnson, JJ., concur. McMurray, P. J., Cooper and Andrews, JJ., dissent.

Cooper, Judge,

dissenting.

I must respectfully dissent because although there were sharp conflicts in the evidence it was sufficient in my view to support the guilty verdict. The evidence showed that within a three-hour period immediately preceding the accident appellant consumed between four and six beers and smoked marijuana although he maintained that he filled his beer cans with water and only pretended to drink beer and smoked pipe tobacco instead of marijuana. A forensic chemist who performed the analysis on appellant’s blood testified that despite the negative test results, appellant could have had a blood alcohol content of .04 grams at the time of the accident. Appellant admitted driving between 65 and 70 mph, the investigating officers smelled the odor of alcohol at the scene of the accident, and one of his passengers testified that immediately prior to the accident appellant was not a safe driver. “ ‘ “It is the function of the jury to determine the credibility of the witnesses, including that of the defendant. The jurors must weigh and resolve any conflicts presented by the evidence. The appellate court must view the evidence in the light most favorable to the jury’s verdict. (Cit.)” [Cit.]’ ” Jacobson v. State, 201 Ga. App. 749, 750 (1) (412 SE2d 859) (1991). Viewed in that light, the evidence was sufficient.

Decided December 4, 1992.

Robert F. Oliver, for appellant.

James E. Cornwell, Jr., Solicitor, for appellee.

I am authorized to state that Presiding Judge McMurray and Judge Andrews join in this dissent.

       The arresting officer apparently recognized this, for he elected not to charge appellant with DUI.


author: McMurray, Presiding Judge.

text:
    A92A1769.
    STACEY v. THE STATE.
    (426 SE2d 401)
   McMurray, Presiding Judge.

Defendant was convicted of arson in the first degree and moved for a new trial. The trial court denied defendant’s new trial motion and she appeals. Held,-.

1. “Reviewing the transcript in the light most favorable to the verdict, we find the circumstantial evidence sufficient to enable any rational trier of fact to find the defendant guilty of arson in the first degree (OCGA § 16-7-60). Jackson v. Virginia, 443 U. S. 307 (99 SC 2781, 61 LE2d 560) (1979); Brown v. State, 195 Ga. App. 532 (1) (394 SE2d 378) (1990).” Collins v. State, 201 Ga. App. 433 (1), 434 (411 SE2d 341).

2. Defendant contends the trial court erred in failing to instruct the jury, without request, that the law presumes every fire to be accidental until the State proves otherwise. This contention is controlled adversely to defendant by Randall v. State, 3 Ga. App. 653 (3) (60 SE 328). See also Pulliam v. State, 196 Ga. 782, 792 (10) (28 SE2d 139); Jones v. State, 50 Ga. App. 97 (176 SE 896).

Judgment affirmed.

Sognier, C. J., and Cooper, J., concur.

Decided December 4, 1992.

Ronnie K. Batchelor, for appellant.

Thomas C. Lawler III, District Attorney, Debra K. Turner, Assistant District Attorney, for appellee.


text:
    A92A1133.
    DUCKETT v. THE STATE.
    (426 SE2d 271)
   Sognier, Chief Judge.

Robert D. Duckett was convicted of DUI in a bench trial and he appeals.

Appellant contends the trial court erred by admitting into evidence the results of a State-administered breath test because his request for an independent blood test was refused.

At the hearing on the motion to suppress, Officer C. T. Cox of the Cobb County Police Department testified that he stopped appellant on Canton Highway at approximately 11:15 p.m. on June 22, 1990 after observing the vehicle driven by appellant veer into the center turn lane several times. Cox testified he administered several field sobriety tests, then arrested appellant and read him the implied consent rights. Cox did not recall at the hearing whether appellant had requested a blood test. The stop of appellant was recorded on videotape by the camera in Cox’s patrol car, however, and the transcript of that videotape reveals that after Cox informed appellant of his implied consent rights but before appellant had agreed to submit to the State-administered test, appellant said he wanted a blood test. Appellant was taken to a mobile testing unit, where two separate breath tests were administered by Cox. The results of those breath tests were .11 and .10. It is undisputed that no blood test was ever administered. The trial court denied appellant’s motion to suppress on the ground that appellant’s request immediately after being read his rights “did not amount to a demand” and was premature.

We agree with appellant that the trial court erred by finding that appellant’s request for a blood test “did not amount to a demand” and that appellant’s request was premature because the State had not yet performed its own test. “Under the law as set forth in Huff [v. State, 144 Ga. App. 764 (242 SE2d 361) (1978)] and Modlin [v. State, 176 Ga. App. 83 (335 SE2d 312) (1985)], the State has the right to have its test performed before the defendant’s right to take a test attaches because a refusal to take the test constitutes a waiver of the right to an independent test. [However, i]f he elects to have an independent test done, he may make this election after being informed of his informed consent rights.” State v. White, 188 Ga. App. 658, 659 (373 SE2d 840) (1988).

However, the error of the trial court’s ruling does not necessarily guarantee that the motion to suppress should have been granted. It indicates only that the motion to suppress should not have been denied for the reason stated by the trial court. If it was proper to deny the motion for some other reason, then the judgment below is untainted by the improper admission into evidence of the results of the breath test, and the judgment of conviction may stand. OCGA § 40-6-392 (a) (3) provides that “[t]he justifiable failure or inability to obtain an additional test shall not preclude the admission of evidence relating to the test or tests taken at the direction of a law enforcement officer.” “It is incumbent on the trial court to determine whether the failure or inability to obtain the additional test is justified.” State v. Buffington, 189 Ga. App. 800, 801 (377 SE2d 548) (1989). To determine whether the failure to perform a blood test was justified, we must look to events subsequent to appellant’s request.

The events subsequent to Cox’s stop of appellant were not recorded on videotape and the evidence of record is in sharp conflict on the crucial issue of what transpired. The State’s position is that although he initially requested a blood test, after the breath test was administered appellant changed his mind, withdrew that request for a blood test, and asked instead for a repeat of the breath test. Appellant’s position is that he never changed his mind. Although it is undisputed that Cox administered a second breath test, appellant testified that he never asked for a repeat of the breath test; Cox testified he did. Appellant testified that the second breath test was administered because Cox believed he was trying to “beat the test,” and that he never repeated his request for a blood test because he believed it would be futile. Cox, on the other hand, testified that after he administered the breath test he asked appellant, as he asks “anybody and everybody [he] arrest[s] for DUI, ... if they want any additional test.” Cox testified unequivocally and unambiguously that “[a]t that point [appellant] told me he wanted another breath test. We waited twenty minutes after the state test and gave him an additional breath test.” Cox also testified “I told him as I tell everybody else, ‘[y]ou have taken the state administered test. Your driver’s license [is] not going to be suspended for refusing to take the test and since you have done so you have an option to an additional test. It can be of your blood, your breath, your urine or some other bodily substance. . . . [Appellant] indicated he wanted a breath test.”

Thus, there was competent direct evidence that appellant had again been asked if he wanted an additional test; that he indicated he wanted a breath test; and that this request was accommodated by Cox. There was equally competent direct evidence to the contrary. The trial court never resolved this conflict in the evidence because it believed, albeit erroneously, that appellant had not made a timely request for a blood test. The nature of the evidence in this case is undistinguishable from that in Duffee v. State, 184 Ga. App. 247 (1) (361 SE2d 239) (1987), cited by the dissent, the only difference being that in Duffee the trial court resolved the conflict.

The trial court, as the finder of fact, must now make the credibility decision it avoided earlier based on an erroneous belief regarding what the law requires. Accordingly, we remand this case to the trial court for a resolution of the conflict in the evidence regarding whether appellant’s request for a blood test was withdrawn in favor of a request for a repeat of the State-administered breath test. Should the trial court resolve the conflict in favor of appellant, the motion to suppress should have been granted and the trial court’s judgment must be reversed. Should the trial court resolve the conflict in favor of Cox, then the denial of the motion to suppress was correct, and the judgment may be affirmed. See Ballew v. State, 206 Ga. App. 631 (426 SE2d 254) (1992).

Judgment reversed.

Birdsong, P. J., Carley, P. J., Beasley, Andrews and Johnson, JJ., concur. McMurray, P. J., Pope and Cooper, JJ., dissent.

Cooper, Judge,

dissenting.

I agree with the majority that the trial court erred in ruling that appellant’s request for an independent blood test was unclear and untimely. Because I do not agree that the record presents a question of fact for trial court determination with respect to withdrawal of that request, however, I would reverse the trial court’s denial of appellant’s motion to suppress rather than remand for further consideration of withdrawal.

The only evidence in the record even suggesting withdrawal of appellant’s request is his failure to repeat his request for an independent blood test; Officer Cox’s statement that appellant asked Cox to perform a second breath test; and Officer Cox’s conclusion, after his initial recollection that appellant never requested a blood test was belied by the videotape, that appellant must have “changed his mind.” The conflicting evidence regarding the second breath test discussed by the majority does not create an issue of fact as to withdrawal requiring remand because in my view, the evidence described above — even if we assume appellant requested a second breath test — is insufficient as a matter of law to support a finding that appellant’s unequivocal and unambiguous request for an independent blood test was withdrawn. Cf. State v. Hughes, 181 Ga. App. 464, 466 (352 SE2d 643) (1987) (burden is on State to demonstrate strict compliance with statutory requirements if it wishes to rely on intoximeter test); Munda v. State, 172 Ga. App. 857, 858 (1) (324 SE2d 799) (1984) (it is “ ‘the statutory mandate of the General Assembly that the use of such tests in criminal trials shall be subject to the strictest protections. . . .’ [Cit.]”). Once an accused invokes his right to an independent blood test by making a clear request for it, as appellant did in this case, a withdrawal of the request or waiver of the right should not be inferred from the accused’s failure to repeat the request or other circumstantial evidence; the withdrawal must be as clear as the request. Compare Duffee v. State, 184 Ga. App. 247 (1) (361 SE2d 239) (1987) (testimony of jailer that accused voluntarily withdrew his request for additional test after conferring with his sister was sufficient to support trial court’s finding that accused voluntarily abandoned his right to additional test).

Decided December 7, 1992.

Barbara M. Lassiter, for appellant.

Patrick H. Head, Solicitor, Clifford L. Granger, Jr., Diane M. Busch, Assistant Solicitors, for appellee.

Accordingly, I would hold that the trial court erred in denying appellant’s motion to suppress and in considering the results of the intoximeter test. Moreover, immediately before deciding appellant’s guilt, the trial court twice stated that the case was a close one. I therefore would conclude that the trial court’s error in considering the results of the State’s breath test was not harmless and would reverse the judgment in this case.

I am authorized to state that Presiding Judge McMurray and Judge Pope join in this dissent.


author: Sognier, Chief Judge.

text:
    A92A1028.
    ROGERS v. THE STATE.
    (426 SE2d 209)
   Sognier, Chief Judge.

Neil Rogers pled guilty to possession of cocaine with intent to distribute, and he appeals, contending the trial court erred by denying his motion to suppress. The record reflects that the trial court sufficiently indicated its exercise of discretion to accept appellant’s plea of guilty on the condition that he preserved his right to appeal the ruling on his motion to suppress. Springsteen v. State, 206 Ga. App. 150 (424 SE2d 832) (1992).

“When we review a trial court’s decision on a motion to suppress, the evidence is construed most favorably to uphold the findings and judgment of the trial court; the trial court’s findings on disputed facts and credibility are adopted unless they are clearly erroneous and will not be disturbed if there is any evidence to support them. [Cits.]” State v. Corley, 201 Ga. App. 320 (411 SE2d 324) (1991). The trial court heard testimony by Glynn County Police Officer Jonathan Bunn that while on routine patrol around 6:00 a.m. on January 12, 1990, he observed a van parked near a dumpster in an unlit area behind an open gasoline station adjacent to the Highway 17 exit off Interstate 95. Bunn testified that the police “always check out any vehicles we see” in that area because it was a known drug trafficking area. As Bunn drove past the van, he saw a man exit the van, look around, spot Bunn’s patrol car, then “very quickly” re-enter the van. Bunn saw another person’s head “stick up out the end” of the van and then go back down and not reappear. The van had a temporary Maryland license plate.

Bunn testified that based on these events he parked behind the van and that appellant opened the van’s door in response to the officer’s knock. At Bunn’s request appellant stepped outside and produced a Virginia driver’s license and other documentation for the van, which appellant told Bunn belonged to him. Appellant also informed Bunn that he and his daughter, the other passenger in the van, had stopped in order to rest on their trip from a family reunion in Florida to their home in the Washington, D. C. area.

Shortly after Bunn initiated contact, appellant became so noticeably and extremely nervous that Bunn asked twice about the reason for the nervousness but was given no explanation. Appellant also repeated himself when answering Bunn’s questions. Bunn took appellant’s driver’s license and registration and began a computer check on their validity. While the check was in progress and while still retaining appellant’s documents, Bunn returned to the van and continued questioning appellant, but did not discuss any possible parking, loitering, or traffic charges. Bunn testified that he “had a question” about the temporary license plate but “at that point, [I] didn’t really honestly think anything was — you know, that the vehicle was stolen or anything. I just — basically who they were, what they were doing over in the dark area next to a business out in a very bad area. At that point, when I started talking with him and he kept repeating himself and he was getting more and more nervous, then I started feeling that something was wrong.”

Bunn testified that because appellant was “getting more nervous,” he asked appellant if he had any drugs or weapons on him. After appellant responded negatively, he seemed to become even more nervous. Bunn then asked appellant whether he would consent to a search of the van, explaining that the area was a high crime and drug area. Bunn was alone, his weapon was not drawn, and he did not threaten appellant or tell him he could not leave. Bunn testified that he produced a written consent form, on which he wrote a description of the vehicle, along with its tag and vehicle identification numbers, and gave it to appellant to read and sign, which appellant did. Bunn asked appellant’s daughter to step outside the van and stand in the headlights of the patrol car, which she did. Bunn testified he then asked if he could search appellant’s person and explained to appellant that his reason for doing so was for Bunn’s safety, since it was early and Bunn was alone. Bunn testified that appellant “said he understood.” Appellant emptied his right pants pocket but not his left pocket, in which Bunn observed a “very noticeable bulge.” When Bunn inquired about the bulge, appellant started to step away but Bunn grabbed his arm and ordered him to remove the object in the pocket “very slowly” because Bunn “thought it was a weapon.” Appellant produced a brown bag, which Bunn ordered him to drop, and as Bunn reached for it, appellant asked Bunn “if we could make a deal.” Bunn looked inside the bag and found 35 small zip-lock plastic bags containing what was later ascertained to be crack cocaine. Bunn then arrested appellant. Bunn testified that after appellant was informed of his rights, he stated that his daughter knew nothing about the cocaine and that his intention had been to sell the cocaine because he was just an occasional user of the drug.

Appellant testified that he is a Washington, D. C. contractor and a native English speaker who graduated from technical colleges in England and has lived in the United States for approximately 20 years. He testified that he could not have moved his van “[w]ithout some problems” after Bunn parked behind him; that he asked for the return of his driver’s license but Bunn told him he had not finished with it; that he did not ask Bunn to move the patrol vehicle “because I wasn’t free to go”; that Bunn told him he did not have to sign the written consent to search the van; that he agreed “because I figured he would have searched anyway”; and that Bunn did not ask but instead told appellant he would search appellant’s person “for his own safety.” Appellant denied making any statements after Bunn discovered the cocaine.

The trial court denied appellant’s motion to suppress, finding that under the totality of the circumstances appellant’s consent to search was not invalidated by the retention of his driver’s license and registration and that Bunn’s frisk of appellant’s person was reasonable under the circumstances.

1. Contrary to appellant’s contention, it is well established that Officer Bunn was not required to have an “articulable suspicion” before he could approach appellant’s stopped vehicle and talk with him. Communications between police and citizens involving no coercion or detention are outside the domain of the Fourth Amendment, O’Donnell v. State, 200 Ga. App. 829, 831 (409 SE2d 579) (1991), and no seizure requiring a reasonable suspicion of unlawful activity occurs simply because a police officer approaches an individual and asks a few questions. State v. Westmoreland, 204 Ga. App. 312, 313 (1) (418 SE2d 822) (1992), applying Florida v. Bostick, 501 U. S--, — (111 SC 2382, 115 LE2d 389, 398) (1991). See State v. Bryant, 203 Ga. App. 69, 70-71 (416 SE2d 368) (1992). Given the time of the incident, the location of appellant’s van, and the movement of appellant and his daughter as Bunn’s patrol car passed the van, we find that Bunn’s action in approaching the van and talking with appellant, including his request to see appellant’s driver’s license, constituted the type of routine traffic inquiry we held in O’Donnell, supra, not to intrude upon any constitutionally protected interest. Id. at 831-832.

2. Appellant contends that after Officer Bunn approached and talked to him, the encounter ceased being consensual and became a seizure for purposes of the Fourth Amendment when Bunn requested and retained appellant’s driver’s license and registration. “A person has been ‘seized’ within the meaning of the Fourth Amendment only if, in view of all the circumstances surrounding the incident, a reasonable person would have believed that he was not free to leave.” (Citations and punctuation omitted.) O’Donnell, supra. The United States Supreme Court has further explicated the seizure test: “[I]n order to determine whether a particular encounter constitutes a seizure, a court must consider all the circumstances surrounding the encounter to determine whether the police conduct would have communicated to a reasonable person that the person was not free to decline the officer[’s] requests or otherwise terminate the encounter.” Florida v. Bostick, 115 LE2d at 401-402. See Westmoreland, supra at 313-314 (2).

An officer conducting a routine traffic stop may request and examine a driver’s license and vehicle registration and run a computer check on the documents. See United States v. Guzman, 864 F2d 1512, 1519 (10th Cir. 1988). Accord Florida v. Royer, 460 U. S. 491, 501-502 (103 SC 1319, 75 LE2d 229) (1983) (airline ticket and driver’s license). However, the evidence is uncontroverted Bunn did more than simply request, examine, and run a computer check of appellant’s license. While retaining appellant’s documents Bunn asked questions of appellant that did not relate to any traffic or parking violations but instead probed into appellant’s possession of contraband or weapons and culminated in the officer’s request to search both appellant’s van and his person.

Considering all the circumstances surrounding the encounter, Florida v. Bostick, supra, we agree with appellant that when Bunn retained appellant’s license, the encounter matured into an investigative stop protected by the Fourth Amendment. See United States v. Thompson, 712 F2d 1356, 1359-1361 (II) (11th Cir. 1983) (“[a] reasonable person [whose driver’s license has been retained by a police officer] would not have believed himself free to leave.” Id. at 1359); see also United States v. Turner, 928 F2d 956 (10th Cir. 1991) (“if the [police] officer retains the driver’s license, he or she must have reasonable and articulable suspicion to question the driver about drugs or weapons. [Cit.]” Id. at 959 (I)). In so holding, we recognize that it is “crucial to focus on what the person’s immediate ‘business’ is, in order to decide if the police retention of his papers would likely impede his freedom to proceed with it,” United States v. Jordan, 958 F2d 1085, 1088 (D.C. Cir. 1992), and have considered that appellant was in a remote area off an interstate highway, hundreds of miles from his home, with only his van for transportation. The setting and time of the encounter in the case sub judice thus distinguishes it from United States v. De La Rosa, 922 F2d 675 (11th Cir. 1991), cited by the State in support of its assertion that no seizure resulted from the detention of appellant’s driver’s license, in which the police retained the accused’s driver’s license after he had arrived at his destination, exited his vehicle, and was proceeding toward his home on foot for the evening. “Thus, temporary retention of the license did not preclude [the accused] from terminating the encounter by going into his apartment.” Id. at 678, n. 2. In the case at bar, appellant could not reasonably have believed himself free to leave: given his location, appellant was effectively immobilized without his driver’s license since had he tried to drive away he could have been arrested for driving without a license. OCGA §§ 40-5-20; 40-5-29. See Jordan, supra; United States v. Jefferson, 906 F2d 346 (8th Cir. 1990); Thompson, supra.

3. Appellant asserts that his seizure and the subsequent search of his person (in the form of his compliance with Officer Bunn’s direction to empty his pockets) were not based on any reasonable suspicion of unlawful activity.

The evidence shows that Bunn initially approached appellant after his curiosity was aroused by the location of the parked van and the behavior of appellant and his daughter as Bunn’s patrol car passed the van. As in O’Donnell, supra at 831-832, it is not contended that these suspicions alone were sufficient to create a reasonable suspicion of unlawful activity. However, unlike O’Donnell, in which the officer’s subsequent inquiries into the ownership of the accused’s vehicle aroused a reasonable suspicion regarding his legal possession of the vehicle, Bunn’s testimony established that he did not “honestly think . . . that [appellant’s] vehicle was stolen or anything.” Given Bunn’s testimony that he did not suspect unlawful activity in regard to appellant’s possession of the van, the only other evidence the sitúation presented to Bunn was that appellant had parked the van in an unlit area to enable his daughter and himself to take a brief rest; that they were traveling from a family gathering in Florida to their home in the Washington, D.C. area; that appellant spoke with a foreign accent; that appellant had a Virginia driver’s license and was driving a van with temporary Maryland license plates; and that appellant displayed signs of extreme nervousness and repeated himself when answering the officer’s questions. Contrary to the State’s assertion, the transcript clearly reflects that Bunn did not see the bulge in appellant’s pocket until after he requested appellant to empty his pockets as part of the search of his person. Compare Pennsylvania v. Mimms, 434 U. S. 106, 111 (98 SC 330, 54 LE2d 331) (1977).

Bunn testified that he decided to inquire about weapons and drugs and to request appellant’s consent to search because he was “curious . . . why [appellant] was so nervous” and because of his “feeling that something was wrong,” even though he testified that he did not know “what” was wrong.

Under Terry v. Ohio, 392 U. S. 1 (88 SC 1868, 20 LE2d 889) (1968), a police officer even in the absence of probable cause may stop persons, detain them briefly, and frisk them for the officer’s safety where there is a reasonable suspicion that such persons are involved in criminal activity. The officer’s action must be justified by “specific and articulable facts which, taken together with rational inferences from those facts, reasonably warrant that intrusion.” (Footnote omitted.) Id. at 21. “[A] founded suspicion is all that is necessary, some basis from which the court can determine that the detention was not arbitrary or harassing.” (Citation and punctuation omitted.) O’Donnell, supra at 832. A reasonable suspicion is more than a subjective, unparticularized suspicion or hunch. Terry, supra at 22; see also Brown v. State, 188 Ga. App. 184, 186 (372 SE2d 514) (1988).

“ ‘That [Officer Bunn’s] “hunch” about [appellant] proved correct is perhaps a tribute to his policeman’s intuition, but it is not sufficient to justify, ex post facto, a seizure that was not objectively reasonable at its inception. Because (the record contains no evidence that [Bunn] had) a reasonable suspicion that [appellant was] hauling drugs [or weapons], the stop cannot be upheld on that ground.’ . . . [Cit.]” Tarwid v. State, 184 Ga. App. 853, 856 (1) (363 SE2d 63) (1987). Accord United States v. Tapia, 912 F2d 1367, 1371 (11th Cir. 1990) (evidence that car with out-of-state plates stopped for speeding was driven by visibly nervous Mexican with few pieces of luggage insufficient to support reasonable suspicion of criminal activity); Thompson, supra at 1361 (evidence of furtive gesture by occupant in car parked for abnormally long time at Florida airport insufficient). Compare United States v. Turner, supra at 959 (I) (evidence that driver of car not registered to him or passenger was nervous, as well as officer’s knowledge that auto mechanics, as driver claimed to be, did not have well-manicured hands and could not afford nice clothes and expensive audio equipment, sufficient to form reasonable suspicion of criminal activity). See also Miranda v. State, 189 Ga. App. 218, 220-221 (2) (375 SE2d 295) (1988) (airport case where lack of identification, one-way ticket purchased with cash, and accused’s nervousness insufficient to establish existence of reasonable suspicion of wrongdoing).

Therefore, we agree with appellant that neither his seizure nor the subsequent search of his person was based upon a reasonable suspicion of criminal activity.

4. “The inquiry does not end with that determination, however, because if the subsequent search was pursuant to a voluntary consent which was not a product of the illegal detention, the taint of that illegal detention would not require suppression of the evidence. [Cit.]” Miranda, supra at 221 (3). The trial court in the case sub judice found under the totality of the circumstances that the retention of appellant’s driver’s license did not invalidate appellant’s consent to search, citing factors that addressed the voluntariness of the consent which might have supported a determination that his consent to the body search was valid had the detention not been tainted. See Hunter v. State, 190 Ga. App. 52, 53-54 (1) (378 SE2d 338) (1989). “However, in order to eliminate any taint from an involuntary seizure or arrest, there must be proof both that the consent was voluntary and that it was not the product of the illegal detention. Proof of a voluntary consent alone is not sufficient. The relevant factors include the temporal proximity of an illegal seizure and consent, intervening circumstances, and the purpose and flagrancy of the official misconduct. [Cits.]” (Emphasis supplied.) Brown, supra at 187.

The evidence surrounding Bunn’s request to search appellant’s person consists solely of Bunn’s testimony that he explained to appellant the safety reasons for his request and that appellant said he “understood.” This evidence is in marked contrast to Bunn’s request to search appellant’s van, regarding which Bunn informed appellant both orally and in writing that he could refuse to consent to the search. “In United States v. Berry, [670 F2d 583, 597-598 (5th Cir. 1982)], the court commented on the ‘salutary practice of informing individuals that they are free to refuse consent to a search and to contact a lawyer,’ ” Miranda, supra at 221 (3), citing numerous cases where “the fact that the accused was told of those rights was one of the factors which supported a finding that the consent was voluntary.” Id. “Considering that appellant was, at the time of [his] supposed consent to search, in illegal detention, that [he] was never informed of [his] right to refuse to consent to a search of [his] person . . . and that there is no evidence of any express giving of consent on [his] part, [only his statement that he “understood” the reasons why Bunn wanted to search his person], we determine from the totality of the circumstances that, as a matter of law, there was no valid consent to search. The trial court erred in ruling otherwise.” Id. Accord Thompson, supra (during contact lasting two minutes police officer who suspected no criminal activity first requested accused’s driver’s license and then, while retaining license, asked accused to hand him a vial he had seen placed on the car seat. Held, the accused’s consent was tainted by the illegal detention).

Decided November 23, 1992 —

Reconsideration denied December 8, 1992

Lane & Crowe, Grayson P. Lane, for appellant.

W. Glenn Thomas, Jr., District Attorney, Kevin R. Gough, Assistant District Attorney, for appellee.

The trial court erred by denying appellant’s motion to suppress. See Tarwid, supra at 856 (1).

Judgment reversed.

McMurray, P. J., and Cooper, J., concur.

       Officer Bunn testified he thought the document involved the vehicle’s insurance, but could not remember definitely. Appellant testified the document was the van’s registration and the trial court so found.