Ferguson v. The State, A03A0824 (Ct. App. Ga. Sept. 3, 2003)

Factual and Procedural Background

Harvey Ferguson was charged in Atlanta City Court with driving 50 miles per hour in a 35 mile per hour zone. He pled not guilty and represented himself at a bench trial before Judge Gaines. The arresting City of Atlanta police officer testified he was stationed at an approved location for operating stationary speed detection devices, was visible at a distance of more than 500 feet, and that the street had a grade of less than seven percent. The officer said he visually estimated Ferguson's speed at approximately 50 miles per hour before activating a ProLaser II speed detection device and that the road was level at the point where the radar was used. Ferguson testified that he measured the street angle at the stopping area with a bubble protractor and obtained a 10 degree inclination (stated in the record as a 17.6 percent grade). Ferguson was found guilty of speeding; he appealed to the Court of Appeals of Georgia, which affirmed the conviction.

Legal Issues Presented

1. Whether the trial court erred in finding the grade of the road at the location where the speed detection device was employed to be below seven percent, in light of OCGA § 40-14-9.
2. Whether the trial court erred in admitting an uncertified copy of a municipal ordinance listing locations approved for the use of speed detection devices.
3. Whether there was evidence that the public was put on notice by signage that speed detection devices were in use near the location, in light of OCGA § 40-14-6(a).
4. Whether there was evidence that Officer Jackson (the testifying officer) was the officer who observed Ferguson speeding.

Arguments of the Parties

Appellant's Arguments (Ferguson)

• The court erred by finding the roadway grade to be below seven percent; Ferguson testified his bubble protractor measured a 10 degree (17.6 percent) grade at the area where he was stopped.
• The court erred in admitting an uncertified copy of a municipal ordinance listing approved locations for speed detection devices.
• There was no evidence that the public was given the notice required (signage) that speed detection devices were being employed near that location.
• There was no evidence that Officer Jackson was the officer who observed him speeding.

Appellee's Arguments (The State)

• The State presented the officer's unrebutted testimony that the area where the radar was used was level and that the officer visually estimated Ferguson's speed at about 50 mph before activating the ProLaser II.
• The uncertified municipal ordinance was not objected to at trial, so the issue was unpreserved for appellate review.
• Even if OCGA § 40-14-6(a) were incompletely complied with, precedent holds that incomplete compliance does not require exclusion of evidence obtained by speed detection devices; furthermore, the officer's visual estimation alone or cumulatively with radar readings suffices to support a conviction.
• The officer testified he both saw Ferguson speeding and clocked him with the speed detection device; the trial court reasonably credited that testimony.

Table of Precedents Cited

Court's Reasoning and Analysis

The court addressed each enumeration in turn:

1. On the roadway-grade challenge (OCGA § 40-14-9), the court acknowledged the statute prohibiting use of speed detection devices on grades in excess of seven percent and recognized that the burden of proof on the grade issue is on the State (Carver). The court noted Ferguson's testimony that a bubble protractor measurement at the stopping area showed a 10 degree (17.6%) grade. The court concluded, however, that the officer's unrebutted testimony that the area where he used the radar was level permitted the trial court to find the grade was below seven percent. The court further stated that even if Ferguson's contentions about the device's use had merit, the radar reading was cumulative of the officer's visual speed estimate and therefore sufficient to support the conviction (Salazar), and that an officer's visual estimate alone may support a speeding conviction (Stone). On this basis the court concluded the State had proven beyond a reasonable doubt that Ferguson was speeding.
2. On the uncertified municipal ordinance, the court observed Ferguson did not object to its admission at trial. Because the objection was not raised below, the court found the issue unpreserved and "provides nothing for our review," citing Salazar as an example of the preservation rule.
3. On the signage/notice argument under OCGA § 40-14-6(a), the court quoted the statute's requirement that jurisdictions using speed detection devices erect warning signs at specified locations. The court held that incomplete compliance with that statutory notice provision does not require exclusion of evidence obtained by speed detection devices, relying on Hardaway, Royston, and Ferguson. The court also noted that the reasons discussed in Division 1 (officer testimony and visual estimate) independently undercut this enumeration.
4. On the identity-of-observer claim, the court rejected Ferguson's contention as speculative. The officer testified he saw Ferguson speeding and clocked him with the speed detection device. The court emphasized the trial court's broad discretion to accept or reject testimony and found nothing in the record to show the trial court's decision to credit the officer was clearly erroneous (citing Salazar).

Holding and Implications

Judgment affirmed.

Implications: The Court of Appeals affirmed the conviction for speeding. The direct effect is that Ferguson's conviction and sentence (as imposed by the city court) stand. The opinion applies existing precedent on burden of proof for grade issues, admissibility when statutory signage may be incomplete, and the sufficiency of an officer's visual speed estimation; it does not announce a new legal rule or broader precedent beyond applying those authorities to the facts of this case.