COURT OF APPEALS OF OHIO, EIGHTH DISTRICT COUNTY OF CUYAHOGA NO. 72909 CITY OF BRECKSVILLE : : JOURNAL ENTRY PLAINTIFF-APPELLEE : : AND v. : : OPINION PATRICK L. O'TOOLE : : DEFENDANT-APPELLANT : : DATE OF ANNOUNCEMENT OF DECISION: AUGUST 13, 1998 CHARACTER OF PROCEEDING: Criminal appeal from Garfield Heights Municipal Court, Case No. 97-TRC-03520A-E. JUDGMENT: AFFIRMED. DATE OF JOURNALIZATION: APPEARANCES: For Plaintiff-appellee: Roger A. Wadsworth Prosecutor Sergio DiGeronimo, Esq. 8927 Brecksville Road Brecksville, Ohio 44141 For Defendant-appellant: Robert C. Kokor, Esq. Ronald James Rice, Esq. Ronald Jams Rice Co., LPA 48 West Liberty Street Hubbard, Ohio 44425 -2- SWEENEY, JAMES D., J.: Defendant-appellant Patrick L. O'Toole appeals from the decision of the trial court denying his motion to suppress evidence. For the reasons adduced below, we affirm. A review of the record on appeal indicates that on April 22, 1997, while driving his motor vehicle in the City of Brecksville, defendant was stopped and charged with Driving Under the Influence ( DUI , R.C. 4511.19[A][1] and [3]), having a loud exhaust, having an open container and weaving. Subsequent to his arraignment, the court, on June 23, 1997, scheduled the matter for trial on July 9, 1997, and defendant filed a motion to suppress evidence1 on July 1, 1997. The motion to suppress was heard by the court on Monday, July 7, 1997, immediately prior to the commencement of the trial. At the hearing on the subject motion, the first witness for the City was Brecksville Police Officer William Kosek, who testified in pertinent part as follows: (1) at approximately 9:00 p.m. on the date of the offense he received a radio dispatch concerning a teal-colored Honda bearing Pennsylvania license plates containing a group of drunken kids leaving a local Shell Oil station and headed in the direction of the Flats in downtown Cleveland; (2) the officer proceeded to the area and intercepted the suspect vehicle as it turned westbound on State Rt. 82 (Royalton Road) from southbound State Rt. 21; (3) the vehicle, a 1The record on appeal does not contain the motion to suppress evidence. -3- Honda Accord matching the description given in the radio dispatch, was heard, despite the closed windows of the patrol car, to emit a loud sound from the exhaust; (4) as the officer followed behind the Honda in the inner lane for approximately one-eighth of a mile, he observed several times [3] the Honda weave toward the line to its right and make a sharp corrective action to return to its lane of travel, then weave to the left and make a sharp corrective action to return to the right; (5) the Honda did not cross over or touch the edge lines that mark the roadway at that point; (6) continuing further for approximately one-half of a mile, the officer observed the Honda near the City limits weave again approximately five times, crossing the edge line on two of those occasions; (7) at that point, the officer stopped the Honda near the northbound entrance ramp to Interstate 77; (8) approaching the Honda from the left rear, the officer observed five occupants and the driver's window was rolled down, at which point he could smell a strong odor of alcohol emanating from the Honda; (9) the officer informed the driver, the defendant, that he had stopped the vehicle because it was weaving and had a loud exhaust; (10) the driver's speech was slurred and difficult to understand and his eyes were very watery and glassy; (11) the officer called for back-up and then asked the driver to exit the vehicle; (12) as the driver exited the Honda, he fell into the side of the car hitting his shoulder on the vehicle; (13) the driver regained his upright position but he was unsteady and unbalanced; (14) the officer then administered field sobriety tests on the driver, which the driver failed because of his lack of -4- balance; (15) the witness also observed a fellow officer, Patrolman Leigh, administer the horizontal gaze, finger to nose, and nystagmus tests on defendant, tests which the defendant failed; (16) based on these observations, defendant was arrested for DUI and placed in the rear of the witness's marked patrol car; (17) fellow officers Kroinek and Grzelak found a 24-can case of Miller Light beer, and miscellaneous cans of beer inside the Honda, three of which were unopened and eight of which were opened; (18) defendant was taken to the station house and advised of his constitutional rights by the witness; (19) the defendant, in the presence of the witness and officer Leigh, signed the Miranda sheet indicating that he understood his rights; (20) at the station house, defendant was again given the field sobriety tests, which he again failed; (21) the witness is trained to use the station's blood alcohol monitoring device, but officer Leah was the assigned alcohol tester that evening. The second witness for the City was Brecksville Police Officer Paul Leigh, who corroborated the testimony of Officer Kosek, adding the following: (1) he was the officer in charge that evening at the station house and heard the call come from the Shell Oil station concerning the drunken kids in the Honda, after which he left the station and proceeded toward an intercept point, eventually coming on the stopped Honda and three other police patrol cars who had arrived prior to him; (2) he is a state-certified operator of the station's blood alcohol testing system, BAC Datamaster, and administered the test to the defendant after twenty minutes of -5- observation and within two hours of the defendant being stopped; (3) the breath sample by defendant, taken approximately one hour after the stop, registered a blood alcohol content of .241, approximatelytwo-and-one-half times over the legal limit; (4) the BAC Datamaster did not indicate any malfunction in the calibration of the machine; (5) the witness did not perform any calibration checks on the machine in question [R. 57]; (6) Sergeant Jereb is responsible for maintaining the calibration and repair logs on the BAC Datamaster. The third witness for the City was Brecksville Police Officer Stan A. Kroinek, who generally corroborated the testimony of the prior witnesses, and added the following: (1) he observed a half- filled cup of beer on the floor of the front seat area as he recovered the case of beer and miscellaneous beer cans from the passenger compartment of the stopped vehicle. The fourth witness for the City was Brecksville Police Sergeant Daniel Jareb, who stated the following: (1) he is the senior operator in charge of the station's BAC Datamaster and is state certified; (2) as the senior operator, he is responsible for the calibration, care and maintenance of the machine along with maintaining the records that go with those duties; (3) he calibrates the machine every seven days with a certified solution supplied from a laboratory under the direction of the State of Ohio Department of Health and described the calibration process and standards; (4) he calibrated the machine on April 21, 1997, one day prior to the stop in question, using a new bottle of the -6- calibration solution [bottle number 1197] opened that day2; (5) he next calibrated the machine on April 28, 1997; (6) he was not sure if the machine was used after the April 21 calibration and before the test on the defendant; (7) he would not test the machine for radio frequency interference [RFI] on a regular basis, instead he described the testing procedure and explained that he tested for that potential problem after the machine was first installed and after the machine was repaired or moved; (8) the machine was last tested for RFI on December 19, 1996, approximately one week after the machine was last moved; (9) the only time RFI affected the machine in question, which caused the machine to abort the test, was when the police radios were within one foot of the machine; (10) the machine in question automatically runs a self-diagnostic test as soon as the machine is started and will register a malfunction if one is present; (11) there have been no malfunctions of the machine between December 19, 1996 and April 22, 1997; (12) the machine never had a reason to be repaired. The defense offered no evidence at the motion hearing but argued that there was no probable cause to initially stop the defendant's vehicle. Subsequent to a short colloquy with defense counsel, the trial court denied the motion to suppress evidence. This appeal presents three assignments of error. Defendant- appellant has waived oral argument. I 2The solution is viable for a period of three months after the date the bottle is opened. (R. 65.) -7- THE TRIAL COURT COMMITTED JUDICIAL MISCONDUCT BY PRE-JUDGING THE DEFENDANT'S MOTION TO SUPPRESS PRIOR TO RECEIVING ANY EVIDENCE AT HEARING, CLEARLY TO THE PREJUDICE OF THE DEFENDANT. Appellant argues that several exchanges between defense counsel, Mr. Kokor, and the trial court at the motion hearing demonstrate a bias by the trial court in favor of prejudging the motion in favor of the prosecution. The first example provides: MR. KOKOR: I believe in our motion, Your Honor, we raise the fact that the machine and testing solutions were not calibrated to the Ohio Department of Health standards. THE COURT: Contrary to all the rigamarole and hoopla that went on previously when they came before absolutely and all fell flat on their faces as far as calibration and alcohol reference. Would you like to go forward with what we have here? MR. KOKOR: Yes, Your Honor. (R. 5.) This limited response by the trial court, which is somewhat confusing, does not demonstrate a bias by the trial court. Instead, the trial court is merely expressing its understanding of current case law which have dealt with similarly raised suppression issues of calibration and testing of the breathalyzer machine. The court understood that case law to be adverse to the arguments presented by defense counsel herein, and gave counsel the opportunity to reconsider that portion of his suppression argument.3Defense counsel wished to go forward with his argument 3Appellant argues that the trial court made a rolling motion with his hand during the court's response, allegedly indicating displeasure with the defense decision to proceed on that basis. -8- and the trial court acquiesced in that desire, allowing counsel great leeway in the cross examination of the prosecution witnesses. The second example, during the direct examination of Officer Kosek, provides: [PROSECUTOR] Q. Approximately how many weaves did you observe in that distance of an eighth of a mile? A. Between Stadium and Highland I saw three, three different course corrections. Q. When you say course corrections, are you saying the weave? MR. KOKOR: Objection to the term weave. THE COURT: You're trying this as the bench. The court is going to give latitude. The fewer objections, the quicker we get done. (R. 12-13.)[Explanation added.] Despite the leading nature of the second question, and the proper objection to leading the witness, the court did not exhibit a bias in its response to defense counsel. The court was simply expressing its justified authority over the conduct of the examination of witnesses at the hearing in an effort to keep the testimony moving along without reliance by the parties on hyper technical displays of procedural and evidentiary prowess which, although correct, add little to the resolution of the merits of the motion to suppress. The third example of alleged bias occurred during the defense cross examination of Officer Kosek, in which counsel, after the officer had stated that no vehicles of any significance had passed The record does not contain any indication of hand movements. -9- by the scene during the administration of the field sobriety tests, sought to raise doubts in the defendant's field sobriety test results due to the possibility of nearby vehicular traffic interfering with defendant's performance: [MR. KOKOR] Q. Could vehicles passing by effect some performance of the field sobriety tests? A. I guess if a semitruck was heavy and shook the road, it's possible. Q. There's no displacement of any vehicle that would be of any significance to anybody standing by the side of the road? A. It's possible. THE COURT: Another description of - - these tests are roadside tests. These tests have been given since the beginning of automobiles. MR. KOKOR: Yes, Your Honor. THE COURT: So you're not making any headline. Get to something else. MR. KOKOR: Just for the record, I object to any curtailment of the defense line of questioning. (R. 35-36.)[Explanation added.] Given the duplicative responses of the witness to a non- existent problem with significant vehicles passing the scene, the court acted within its discretion in curtailing the line of questioning. Certainly, no resulting prejudice can be demonstrated by the court's action because the possible effect of heavy truck traffic aside, the witness stated that there was no significant vehicle traffic at the time. The first assignment of error is overruled. II -10- THE TRIAL COURT ERRED IN OVERRULING THE DEFENDANT'S MOTION TO SUPPRESS BY FINDING THAT THE ARRESTING OFFICER HAD A REASONABLE AND ARTICULABLE SUSPICION SUFFICIENT TO JUSTIFY THE STOP OF A MOTORIST. The standard of review with respect to whether the officer had adequate grounds to conduct an investigatory stop of the defendant's vehicle without a warrant was stated in City of Brecksville v. Bayless (April 3, 1997), Cuyahoga App. No. 70973, unreported, at 5-6, citing State v. Velez (May 4, 1995), Cuyahoga App. No. 67595, unreported, at 3-5: The scope of our review on a motion to suppress was recently set forth by this Court in State v. Curry (1994), 95 Ohio App.3d 93, 96, 641 N.E.2d 1172: In a motion to suppress, the trial court assumes the role of trier of fact and is in the best position to resolve questions of fact and evaluate witness credibility. State v. Clay(1973), 34 Ohio St.2d 250, 63 O.O.2d 391, 298 N.E.2d 137. A reviewing court is bound to accept those findings of fact if supported by competent, credible evidence. See State v. Schiebel (1990), 55 Ohio St.3d 71, 564 N.E.2d 54. However, without deference to the trial court's conclusion, it must be determined independentlywhether, as a matter of law, the facts meet the appropriate legal standard. State v. Claytor (1993), 85 Ohio App.3d 623, 627, 620 N.E.2d 906, 908. In Terry v. Ohio (1968), 392 U.S. 1, 20 L.Ed.2d 889, 88 S.Ct. 1868, the United States Supreme Court held that a police officer may stop and investigate unusual behavior, even without probable cause to act, when he reasonably concludes that the individual is engaged in criminal activity. In justifying that conclusion, the officer must be able to point to specific and articulable facts which, taken together with rational inferences from those facts, reasonably warrant the intrusion. Id. at 21. -11- The circumstances are to be viewed through the eyes of the reasonable and prudent police officer on the scene who must react to events as they unfold. State v. Freeman (1980), 64 Ohio St.2d 291, 295, 414 N.E.2d 1044. As the Supreme Court stated in State v. Williams (1990), 51 Ohio St.3d 58, 60-61, 554 N.E.2d 108: The standard for reviewing such police conduct is an objective one: would the facts available to the officer at the moment of the seizure or the search `warrant a man of reasonable caution in the belief' that the action taken was appropriate? Terry, supra at 21-22; United States v. Wright (C.A.8, 1977), 565 F.2d 486, 489. That is, `an investigatory stop must be justified by some objective manifestation that the person stopped is, or is about to be, engaged in criminal activity.' United States v. Cortez (1981), 449 U.S. 411, 417, 66 L.Ed.2d 621, 101 S.Ct. 690. City of Brecksville v. Bayless, supra at 6, also stated: The United States Supreme Court confirmed these principles in Whren v. United States (1996), 116 S.Ct. 1769 at 1772, where it stated: As a general matter, the decision to stop an automobile is reasonable where police have probable cause to believe that a traffic violation has occurred. The Supreme Court of Ohio has also recently held that stops based on minor traffic violations do not violate the Fourth Amendment. In Dayton v. Erickson (1996), 76 Ohio St.3d 3, the syllabus held: Where a police officer stops a vehicle based on probable cause that a traffic violation has occurred or was occurring, the stop is not unreasonable under the Fourth Amendment to the United States Constitution even if the officer has some ulterior motive for making the stop, such as a suspicion that the -12- violator was engaging in more nefarious criminal activity. In the case at bar, the police had a tip from the Shell Oil service station concerning the Pennsylvania licensed Honda and its five occupants and an allegation that the driver was intoxicated. The police responded, noticed the suspect vehicle with the overly loud exhaust (which itself is a local traffic offense), followed the suspect vehicle and observed repeated erratic driving measures for some distance. Based on the tip, the loud exhaust, and the observable erratic operation of the suspect vehicle, which themselves corroborated the tip, the police had probable cause to conduct an investigatory stop of the vehicle. The second assignment of error is overruled. III THE TRIAL COURT ERRED IN ADMITTING INTO EVIDENCE THE ODH SENIOR OPERATOR CERTIFICATE OF PATROLMAN LEIGH OVER THE OBJECTION OF DEFENSE COUNSEL. Prior to the commencement of witness testimony at the motion hearing, defense counsel sought to prohibit the introduction of Officer Leigh's Ohio Department of Health certification during the hearing because his certificate was not provided counsel until the day of the motion hearing on July 7, 1997. It is agreed by the parties that defendant filed his notice of discovery seeking the certificate in question on June 3, 1997, and that the prosecution mailed a response to the defendant's discovery request on July 1, 1997. The trial court overruled the evidentiary objection noting: -13- Overruled. They were handed to you today. I don't see any problem that this is going to be had. (R. 7.) While the defense is arguably upset by the action of the trial court in not prohibiting the introduction of the contested evidence pursuant to the harshest sanction available under Crim.R. 16(E)(3), the trial court action was still within its discretion pursuant to Crim.R. 16(E)(3) as such other order as it deems just under the circumstances. Since no prejudice was demonstrated by the defense in receiving the certificate on the day of the hearing, and the record does not disclose a willful attempt by the prosecution to evade providing the evidence (it was mailed to the defense counsel on July 1, but had not been received as of the date of the hearing six days later), we cannot say that the trial court abused its discretion in allowing the introduction of the officer's certificate under the circumstances. See State v. Heinish (1990), 50 Ohio St.3d 231, 553 N.E.2d 1026; State v. Adkins (1992), 80 Ohio App.3d 211, 608 N.E.2d 1152 (Crim.R. 16[E][3] grants the court discretion to impose whatever sanction it deems just under the circumstances). The third assignment of error is overruled. Judgment affirmed. -14- It is ordered that appellee recover of appellant its costs herein taxed. The Court finds there were reasonable grounds for this appeal. It is ordered that a special mandate issue out of this Court directing the Garfield Heights Municipal Court to carry this judgment into execution. The defendant's conviction having been affirmed, any bail pending appeal is terminated. Case remanded to the trial court for execution of sentence. A certified copy of this entry shall constitute the mandate pursuant to Rule 27 of the Rules of Appellate Procedure. PATRICIA A. BLACKMON, A.J., and JOHN T. PATTON, J., CONCUR. ______________________________ JAMES D. SWEENEY JUDGE N.B. This entry is an announcement of the court's decision. See App.R. 22(B), 22(D) and 26(A); Loc.App.R. 27. This decision will be journalized and will become the judgment and order of the court pursuant to App.R. 22(E) unless a motion for reconsideration with supporting brief, per App.R. 26(A), is filed within ten (10) days of the announcement of the court's decision. The time period for review by the Supreme Court of Ohio shall begin to run upon the journalization of this court's announcement of decision by the .