State v. Smiley

Sperlin Smiley was accused of driving under the influence (DUI) of alcohol to the extent it was less safe for him to drive, per se DUI, failure to maintain lane, and a seat belt violation. The trial court granted Smiley’s motion to suppress the results of his state-admin*779istered breath test, ruling that the state had failed to comply with the court’s previous order to produce documents requested by Smiley. The state appeals. We affirm.

The facts, as summarized in the trial court’s order, follow:

[Smiley] was stopped by Officer Gilmore of the Atlanta Police Department on January 26, 2006[,] for a traffic violation and subsequently arrested for DUI. [Smiley] consented to a [state-administered] test of his breath under the Georgia Implied Consent Law. An adequate breath sample was obtained by Officer Gilmore on Intoxilyzer 5000 s/n 68-010751.

Prior to trial, Smiley filed an amended motion to suppress/motion in limine, in which he requested production of “full information” from the state under OCGA § 40-6-392 (a) (4), including the following items:

[(1)] all training materials utilized by the officer; [(2)] all training materials utilized by the Area Supervisor; [(3)] all training records for the Intox Operator in question; [(4)] all training records for the Area Supervisor in question; [(5)] copies of any studies, journal articles or other learned treatises relied upon by any experts called by the state on the Intox 5000 or utilized or referenced in training manuals utilized by operators or area supervisors; [(6)] all logs or other records maintained] for the Intox 5000 in question for the past two years; [(7)] all maintenance logs for the Intox 5000 for the last 2 years; [(8)] all calibration records and test results for the last two years; [(9)] the owner’s manual or operator’s instructions for the Intox 5000 in question provided by CMI, Inc. or other applicable manufacturer, any and all software information including source code, software version on the arrest date, date of software version installation, date this version of the software was tested and approved by the [Division] of Forensic [Sciences] of the Georgia Bureau of Investigation; [(10)] and all maintenance, calibration, and test results stored in the software memory of the Intox 5000 as of the date of this motion.

After hearing argument of counsel, the trial court granted Smiley’s motion and directed the state to produce to Smiley the “full information” requested, including but not limited to the items detailed above. The trial court further warned that a hearing would *780be convened prior to trial if the state failed to comply with the court’s order. The state filed a motion for reconsideration, arguing that it was not required to produce the requested information because it was not in its possession and misdemeanor discovery rules only require the state to produce those documents in its possession; the records sought are neither “scientific reports” nor are they included under the “full information” prong of OCGA § 40-6-392 (a) (4); and Smiley’s right to confrontation is not impacted because a breath test is not testimonial hearsay. The state further argued that the source code, schematics, and service manuals for the Intox 5000 are retained by the manufacturer of the machine and, therefore, are not in the state’s possession. The trial court denied the motion, citing Cottrell v. State,1 in which we held that the full information requested by the defendant pursuant to OCGA § 40-6-392 (a) (4), including source codes for the Intox 5000, were not discoverable because the defendant failed to show their relevance.2 The trial court subsequently granted the state’s motion for reconsideration, vacated all its prior orders, and directed the parties to file briefs in light of this Court’s decision in Hills v. State,3 in which we held that source codes for the Intox 5000 were not discoverable because the defendant failed to meet his prima facie burden of showing that the state had possession or control of the codes.4 The trial court then issued an order, finding Hills distinguishable and granting Smiley’s motion to suppress/motion in limine for the reasons set forth in its original order. Shortly thereafter, the trial court granted Smiley’s motion to suppress, finding that the state had produced the Intox 5000 breath test result strip, but refused to produce the other items as previously ordered. The trial court also ruled that the information requested has been shown by Smiley to be relevant and that “the [sjtate’s argument that it does not possess the documents is not persuasive.” The state appeals this ruling, arguing, inter alia, that the requested items are not required by law to be produced. Pretermitting whether the requested items are required by law to be produced, we find no error in the trial court’s grant of the motion to suppress.

At a hearing on a motion to suppress, the trial judge sits as the trier of fact. And Georgia law has long held that the trier of fact may believe or disbelieve all or any part of the testimony of any witness. Thus, on appellate review of a *781trial court’s order on a motion to suppress evidence, we never second-guess the trial court’s factual findings where they are based on testimonial evidence. We construe the evidence most favorably to the upholding of the trial court’s findings and judgment and affirm unless the court has committed an error of law.5

“Further, we must assume, absent the availability to us of whatever material the court considered while hearing evidence on the motion, that the court properly exercised its judgment and discretion in [ruling on a] defendant’s motion to suppress.”6 OCGA § 40-6-392 (a) (4), which applies to alcohol testing, requires that the state provide “full information concerning the test or tests [taken].” In Cottrell,7 this Court noted:

OCGA § 40-6-392 (a) (4) expanded previous discovery procedures which allowed discovery only of written scientific reports, and is consistent with the broad right of cross-examination embodied in OCGA § 24-9-64. Thus, as a general rule, a defendant now has the right to subpoena memos, notes, graphs, computer printouts, and other data relied upon by a state crime lab chemist in obtaining gas chromatography test results. A request directed to the state is also sufficient to require production of the information.8

While a defendant must show that the requested information is relevant, the state is not obligated to produce information that is not within its possession, custody or control.9 Here, the trial court found that the requested materials were relevant and within the possession, custody or control of the state, and ordered the state to produce them. When the state failed to comply with the trial court’s order, the trial court granted Smiley’s motion to suppress the results of the breath test. In Birdsall v. State,10 we noted that unlike OCGA § 17-16-23, OCGA § 40-6-392 (a) (4) specifies no penalty for the state’s noncompliance with discovery:

We do not agree with [the defendant] that the penalty should necessarily be exclusion of the printout and any oral *782testimony based on the test results, which were, in turn, based on the printout. On the other hand, exclusion of the printout, and the resulting test results and oral testimony, might be very appropriate upon a showing of bad faith, or upon a showing of a failure to obey an order requiring production.11

In this case, the record reflects that the state disobeyed a discovery order. Moreover, without a transcript of the motion hearing, we must presume that the trial court found evidence of bad faith on the part of the state in not producing the requested information. Accordingly, we are unable to conclude that the trial court abused its discretion in suppressing the results of the breath test.

Judgment affirmed.