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William Odum
v. State of
Georgia, 255
Ga.App. 70, 564
S.E.2d 490
(Ga.App.
04/15/2002)
[1]
Georgia Court
of Appeals
[2] No.
A02A0784
[3] 255
Ga.App. 70, 564
S.E.2d 490,
2002.GA.0000543
[4]
April 15,
2002
[5]
William Odum v.
The State of
Georgia.
[6]
Smith, P. J.,
Eldridge and
Ellington,
JJ.
[7] The
opinion of the
court was
delivered by:
Eldridge,
Judge.
[8]
Following a
bench trial in
the City Court
of Atlanta upon
charges brought
by using the
Uniform Traffic
Citation,
Summons Form,
defendant
William Odum
was convicted
of speeding
ninety-nine
miles per hour
in a fifty-five
mile per hour
zone in
violation of
OCGA §
40-6-181 and
reckless
driving in
violation of
OCGA §
40-6-390. *fn1
He was
sentenced to
fines totaling
$600 and
ordered to
attend
defensive
driving school.
The defendant
appeals,
contending that
the city court
erred in
admitting
evidence of his
speed for
noncompliance
with OCGA
§ 40-14-4,
i. e. the State
neither proved
that the
Federal
Communications
Commission
licensed the
City of Atlanta
Police
Department to
use the laser
speed detection
device used to
clock his speed
nor showed that
the Department
of Public
Safety ("DPS")
certified the
technician who
calibrated the
device before
it was placed
in service. In
further claims
of error, the
defendant
challenges the
sufficiency of
the evidence
supporting his
reckless
driving
conviction and
contends that
his convictions
should be
reversed in
that he did not
knowingly and
intelligently
waive his right
to a jury
trial. Finding
the defendant's
claims of error
to be without
merit, we
affirm.
Held:
[9] 1.
Defendant's
OCGA §
40-14-4
defective
foundation
claims to the
contrary
notwithstanding,
the
admissibility
of evidence
obtained from
laser speed
detection
devices is
controlled by
OCGA §
14-14-17. Van
Nort v. State,
250 Ga. App. 7,
8 (1) (550 SE2d
111) (2001);
see also
Johnson v.
State, 146 Ga.
App. 277,
279-280 (2)
(246 SE2d 363)
(1978)
(legislature
has power to
modify rules of
evidence). OCGA
§ 40-14-17
pertinently
requires that
the State
introduce a
certified copy
of the DPS's
list of
approved laser
speed detection
devices. Given
this foundation
alone,
independent of
those required
under OCGA
§ 40-14-4
as to speed
determined by
radar detection
devices,
evidence of
speed measured
by an
"approved"
laser speed
detection
device is
admissible. Van
Nort v. State,
supra. We do
not reach the
further
question of
whether the
State complied
with OCGA
§ 40-14-17
in that this
issue has not
been enumerated
and is not
before us on
appeal OCGA
§ 5-6-40;
Hall v. State,
232 Ga. App.
664, 665 (502
SE2d 764)
(1998);
MacDonald v.
MacDonald, 156
Ga. App. 565,
567 (1) (c)
(275 SE2d 142)
(1980).
"Matters not
enumerated as
error will not
be considered
on appeal."
Rider v. State,
226 Ga. 14 (2)
(172 SE2d 318)
(1970).
[10] 2.
The arresting
officer
testified that
while driving
ninety-nine
miles per hour
in a fifty-five
mile per hour
speed zone, the
defendant twice
changed lanes
without
signaling in an
effort to evade
pursuit. Viewed
in the light
most favorable
to the verdict,
this evidence
showed a
sufficient
disregard for
the safety of
the arresting
officer and the
other drivers
on the roadway
to authorize
the jury to
find beyond a
reasonable
doubt that the
defendant was
guilty of
reckless
driving.
Jackson v.
Virginia, 443
U. S. 307 (99
SC 2781, 61
LE2d 560)
(1979); OCGA
§ 40-6-390
(a) ("Any
person who
drives any
vehicle in
reckless
disregard for
the safety of
persons or
property
commits the
offense of
reckless
driving.");
Moore v. State,
234 Ga. App.
333, 334 (3)
(d) (506 SE2d
685)
(1998).
[11] 3.
By his final
enumeration of
error, the
defendant for
the first time
on appeal
claims that he
did not
knowingly and
intelligently
waive his right
to a jury
trial. *fn2 It
is well-settled
that
"[a]
criminal
defendant must
personally and
intelligently
participate in
the waiver of
his right to
jury trial.
Pirkle v.
State, 221 Ga.
App. 657 (472
SE2d 478)
(1996), citing
Patton v.
United States,
281 U. S. 276
(50 SC 253, 74
LE 854)
(1930)."
Whitaker v.
State, supra.
Where the
purported
waiver of this
right is
challenged
[12]
the State bears
the burden of
showing the
waiver was made
both
intelligently
and
voluntarily,
either (1) by
showing on the
record that the
defendant was
cognizant of
the right being
waived; or (2)
by filling a
silent or
incomplete
record through
the use of
extrinsic
evidence which
affirmatively
shows that the
waiver was
knowingly,
voluntarily,
and
intelligently
made. (Citation
and punctuation
omitted.) Jones
v. State, 212
Ga. App. 676,
679 (2) (442
SE2d 908)
(1994).
[13]
The record
shows that the
defendant
"checked" and
placed his
initials
opposite
statements by
which he plead
not guilty and
indicated that
he did so
"knowingly and
willfully
waiving
[his]
right to a jury
trial." These
actions
appeared over
his signature,
the signature
of trial
defense
counsel, and
that of the
prosecutor.
Although the
defendant's
waiver of his
right to a jury
trial was not
obtained in
open court,
such waiver was
not required;
neither was it
required to
conform to any
approved
format. Id. at
244; Wooten v.
State, 162 Ga.
App. 719, 720
(293 SE2d 11)
(1982).
Further, we
presume
regularity in
court
proceedings,
Vaughan v.
Buice, 253 Ga.
540 (322 SE2d
282) (1984),
and
[14]
[t]he
Sixth Amendment
relies on the
legal
profession's
maintenance of
standards
sufficient to
justify the
law's
presumption
that counsel
will fulfill
the role in the
adversary
process that
the Amendment
envisions.
Strickland v.
Washington, 466
U. S. 668, 688
(104 SC 2052,
2064, 80 LE2d
674) (1984).
(Punctuation
omitted.)
Brooks v.
State, 243 Ga.
App. 246, 249
(1) (a) (iii)
(532 SE2d 763)
(2000).
[15]
There is here
no claim to the
contrary. The
defendant did
not question
his waiver of a
jury trial in
the trial
court. Under
these
circumstances,
we conclude
that the
evidence shows
that the
defendant
personally,
voluntarily,
knowingly, and
intelligently
participated in
the decision to
waive a jury
trial in this
case. Compare
Bostic v.
State, 252 Ga.
App. 242, 243
(1) (__ SE2d
__) (2001)
(trial court
announced that
defendant's
waiver of a
jury trial and
trial defense
counsel alluded
to waiver at
sentencing);
compare also
Whitaker v.
State, supra
(prosecutor
announced
defendant's
waiver of a
jury trial and
unsigned
handwritten
notation
purporting to
show the same).
Accordingly,
this claim of
error is
likewise
without
merit.
[16]
Judgment
affirmed.
Smith, P. J.,
and Ellington,
J., concur.
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Opinion
Footnotes
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[17]
*fn1 The City
Court of
Atlanta under a
population bill
is a
constitutional
court with jury
jurisdiction;
Ga. L. 1967, p.
963, further,
by amendment,
it has some
concurrent
jurisdiction
with the state
court. Ga. L.
1996, pp. 627,
632, § 10.
Appeals from a
constitutional
city court are
within the
jurisdiction of
this Court
where
conviction is
under OCGA
§ 40-13-1
et seq. OCGA
§ 5-6-34
(a); Parnell v.
City of
Atlanta, 173
Ga. App. 602,
602-603 (327
SE2d 569)
(1985);
Williams v.
City of
Atlanta, 135
Ga. App. 765,
766 (219 SE 2d
17) (1975).
[18]
*fn2
"Generally,
claims of error
not objected to
in the trial
court may not
be raised for
the first time
on appeal,
except for
certain
constitutional
issues, among
which is
whether the
defendant
waived his
constitutional
right to a jury
trial.
[Cit.]"
Whitaker v.
State, 244 Ga.
App. 241, 243
(4) (535 SE2d
283)
(2000).
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