☢ test - Í

and sufficient remedy’ for any perceived Miranda violation,” quoting Kennedy concurrence in Chavez v. Martinez , 538 U.S. 760, 790, 123 S.Ct. 1994, 155 L.Ed.2d 984 (2003). Souter, in dissent , argues that “a Miranda violation raises a presumption of coercion [citing Oregon v. Elstad ] and the Fifth Amendment privilege against compelled self- incrimination extends to the exclusion of derivative evidence” such as defendant’s gun, citing United States v. Hubbell , 530 U.S. 27, 37-38, 120 S.Ct. 2037, 147 L.Ed.2d 24 (2000). Accord, Reaves v. State , 284 Ga. 181, 664 S.E.2d 211 (July 11, 2008); State v. Folsom , 285 Ga. 11, 673 S.E.2d 210 (February 9, 2009). Jewett v. State, 264 Ga.App. 571, 591 S.E.2d 459 (December 5, 2003), OVERRULED ON THIS POINT, Vergara v. State , 283 Ga. 175, 657 S.E.2d 863 (February 25, 2008). “OCGA § 24-3-50…. provides safeguards governing the admissibility of confessions by criminal defendants. It does not apply to statements that fall short of being confessions, and it does not provide that such statements are inadmissible.” “‘ It is no valid ground of objection to the admission into evidence of an incriminating statement made by the accused in a criminal case that the language indicated that the accused had committed another offense .’” Williams v. State, 257 Ga.App. 54, 570 S.E.2d 362 (August 16, 2002). A “blood sample, although potentially incriminating, is not testimonial or communicative in nature. Thus, the State does not violate an accused’s privilege against self-incrimination by requesting that he give a blood sample, or even by compelling him to do so .” Citing Schmerber v. California , 384 U.S. 757, 86 S.Ct. 1826, 16 L.Ed.2d 908 (1966) (involuntary taking of blood in DUI prosecution violated neither 4 th or 5 th Amendments of U.S. Constitutions). State v. Carraway, 251 Ga.App. 469, 554 S.E.2d 602 (September 6, 2001). A response to a request to take a breath test is neither testimonial nor communicative, is neutral in effect, and not protected by the privilege against self- incrimination. Therefore, the failure to give Miranda warnings does not require suppression of the results of a defendant’s breath test. Additionally, because Miranda applies to custodial interrogations, the failure to give Miranda warnings does not require the suppression of a police officer’s testimony about his mere observations of a defendant at the scene of the traffic stop. 33. TELEPHONE CONVERSATIONS Smith v. State, 254 Ga.App. 107, 561 S.E.2d 232 (March 4, 2002). Trial court properly denied Defendant’s motion to suppress audio recording of his telephone conversations with the victim from jail because Defendant admitted that a recording informed him that calls could be monitored and recorded and that his use of the telephone constituted implied consent to such monitoring and recording while he was in jail. The disclosure requirements of OCGA § 16-11-64(b)(7) are not applicable as that code section relates only to disclosure of evidence of intercepted conversations obtained through a warrant, not to the disclosure of those obtained by virtue of the consent of one party to the conversation as provided for in OCGA § 16-11-66. As mentioned above, Defendant’s admission that he heard the recording constituted implied consent to the monitoring and recording of his telephone calls while detained. 34. TRANSCRIPT Simmons v. State, 282 Ga. 183, 646 S.E.2d 55 (June 4, 2007). No error allowing jury to refer to transcript of defendant’s statement while listening to recording thereof, where trial court instructed jury “that the contents of the taped confession, not the transcript, was the evidence the jury should use in reaching a decision.” Accord, Stewart v. State , 286 Ga. 669, 690 S.E.2d 811 (March 15, 2010). Ros v. State, 279 Ga. 604, 619 S.E.2d 644 (September 19, 2005). “After errors were discovered in the polling portion of the certified trial transcript as to the identity of the jurors who were impaneled to hear the trial and jurors’ answers when polled, the court reporter re-transcribed that portion of the proceedings and filed the corrected version with the court. A hearing was thereafter held at which time the tape of the trial was played. The trial court determined that the corrected version accurately reflected the tape’s contents and ordered that the corrected version be substituted for the original version. … Ros concedes that the corrected transcript accurately reflects what the tapes showed occurred at trial, but asserts this case must be remanded with an order that another court reporter transcribe it at county expense in order to remove from the transcript any ambiguity regarding what the court reporter transcribed. However, Ros has not shown that the court reporter was incapable of transcribing the tapes so as to require the appointment of another court reporter. Compare Wilson v. State, 246 Ga. 672 (273 S.E.2d 9) (1980). Moreover, in regard to the corrected transcript, Ros ‘fails to show how he was harmed or to raise any issue which this Court is unable to adequately review because of skips in the record.’ Smith v. State, 251 Ga. 229, 230(2) (304 S.E.2d 716) (1983). Accordingly, we find no error in this enumeration.”

Made with FlippingBook Ebook Creator