SMITH v. STATE No. A12A1471.
735 S.E.2d 153 (2012)
SMITH v. The STATE.
Court of Appeals of Georgia.
November 30, 2012.
Kenneth Wayne Sheppard , for Appellant.
Robert D. James Jr. , Daniel James Quinn , for Appellee.
After a jury trial, Nicole Smith was convicted of two counts of first degree homicide by vehicle,
1. The evidence was sufficient to support the guilty verdict as to all charges. When reviewing a criminal conviction,
So construed, the evidence shows that on April 9, 2006, Smith had been spending the night with her sister, Falisha Scott, in Lithonia. While Scott was sleeping, Smith borrowed Scott's Ford Trailblazer SUV without her knowledge or permission.
At approximately 3:00 a.m., Smith was driving the Trailblazer northbound on I-285 at a high rate of speed when she struck the rear of a slower moving Nissan Sentra occupied by Constance Daniel and Charisma Sanders. Smith never applied her brakes before the collision and, in fact, had been accelerating at the time of impact. The impact sent the victims' Sentra into the median wall, where it rebounded and spun back out into oncoming traffic. A Lexus SUV then hit the Sentra head on, killing Daniel and critically injuring Sanders. Sanders was taken to a hospital immediately after the crash, but she died from her injuries 20 days later.
Jimmy Lottie, who had been driving alongside the Sentra at the time of the accident, testified that he was driving northbound in the far right lane of I-285 when he looked in his rear-view mirror and saw a vehicle approaching at a high rate of speed. He observed the speeding vehicle crash into the rear of the Sentra, sending it into the median wall and back out into traffic. Lottie testified that the Sentra's headlights, which had been functioning normally prior to the accident, were knocked out when the Sentra collided with the median wall. The Sentra came to a rest facing oncoming traffic with its headlights out. Lottie pulled over and ran across the interstate to the median wall to render assistance, but another car struck the Sentra head on before he could reach it.
Jason Ouimette was driving northbound on I-285 in the second lane from the median wall when he observed smoke, debris, and what he believed to be a "chunk of metal" just ahead in the lane closest to the median wall. The chunk of metal was the Sentra. Darius Vaughn was driving a Lexus SUV in the left lane beside Ouimette. Both Ouimette and Vaughn slammed on the brakes, but only Ouimette managed to avoid hitting the Sentra. Vaughn testified that he did not see the Sentra until he was right up on it. Vaughn further testified that he could not avoid hitting the Sentra because it was blocking the two left lanes of the interstate and Ouimette's car was to his right.
Officer C.E. Flood, a DeKalb County police officer, was the first to respond to the accident scene. Officer Flood talked to the witnesses present and ascertained that the Trailblazer driven by Smith had initiated the accident by hitting the rear of the Sentra. When Smith was questioned by law enforcement at the scene, she admitted that she was the driver of the Trailblazer but identified herself as "Falisha Scott." When Smith was taken to the police station to be questioned further about the accident, she was given a Miranda form and advised of her rights. Smith signed her name as "Falisha Scott" on the Miranda form, as well as on her written statement.
During the subsequent investigation of the accident, Donald Shaver, an accident reconstruction expert, retrieved crash data from the Trailblazer's sensing diagnostic module (SDM). The SDM records the change in the velocity of the vehicle resulting from the initial impact of the crash. The SDM also provides the speed of the vehicle during the
Detective Charles Thomas, the DeKalb County police officer who investigated the accident, testified that he received a phone call from Scott the day after the accident. It was at that time that he discovered that Smith had taken Scott's Trailblazer without her permission and had used Scott's name.
Smith did not testify at trial, but relied on her own accident reconstruction expert who testified that the accident could not have occurred in the manner described by the witnesses, police officers, and the State's accident reconstruction experts.
This evidence was sufficient for the jury to reject Smith's claims that her expert's testimony proved that she was not driving recklessly and that most of the damage to the victims' car was caused when it struck the median wall,
2. Smith contends that the trial court erred in refusing to allow her to impeach the State's witness, Jimmy Lottie, with his 1995 and 1998 drug convictions.
Pursuant to OCGA § 24-9-84.1(a)(1),
However, evidence of such a conviction is not admissible
Finding that Lottie's 1995 drug conviction occurred more than ten years ago and that its probative value did not substantially outweigh its prejudicial effect, the trial court
With regard to Lottie's 1998 drug conviction, the trial court initially applied the wrong standard for determining the admissibility of this conviction. Applying the analysis set forth in OCGA § 24-9-84.1(b), the trial court stated that the probative value of the 1998 conviction did not "substantially" outweigh its prejudicial effect. However, the 1998 conviction was not outside the ten-year time limitation because Lottie had been released from prison seven years before Smith's trial.
3. Smith argues, and the State concedes, that the trial court erred in refusing to allow Smith to cross-examine Lottie about his pending drug charge in Indiana. However, because we find that the error did not harm Smith's defense, we affirm.
Smith was permitted to cross-examine Lottie outside the presence of the jury regarding his pending charge of possession of cocaine in Indiana. Smith attempted to elicit testimony that Lottie may have been testifying favorably towards the State because he hoped that it may have some beneficial effect on the disposition of the pending drug charge. However, Lottie stated unequivocally that he had no hope of benefitting from providing testimony in this case. The trial court ruled that Smith would not be allowed to cross-examine Lottie regarding the subject in front of the jury, and Smith objected.
On appeal, Smith contends that this limitation on her cross-examination of Lottie prevented her from showing that Lottie had a reason to be biased against her, thereby impeaching his credibility. "[T]he constitutionally improper denial of a defendant's opportunity to impeach a witness for bias, like other Confrontation Clause errors, is subject to [a] harmless-error analysis."
At trial, Lottie's testimony regarding his observation of the speed of Smith's vehicle and its collision with the victims' car was corroborated by the police officers' analysis of the accident scene, the physical evidence on the vehicles involved, the data retrieved from the Trailblazer's SDM, and investigations of the State's accident reconstruction experts. Thus, there was evidence independent of Lottie's testimony that was sufficient to support the jury's conviction of Smith on the charges arising out of the collision. Moreover, the trial court allowed Smith's counsel to cross-examine Lottie for the purposes of impeachment with respect to an unrelated conviction in Indiana for giving false information.
4. Smith contends that the trial court erred by allowing Marva Peters, the mother of victim Charisma Sanders, to testify about the extent of her daughter's injury and the length of her hospital stay and to introduce a photograph that Peters took of her daughter as she lay injured in the hospital shortly after the accident. Smith contends that the testimony and photograph were irrelevant and prejudicial.
Generally, photographs of the extent and nature of a victim's wounds are material and relevant, regardless of whether the cause of death is disputed.
Here, because no autopsy was performed and because the defense refused to stipulate to the causation of Sanders' death, both Peters' testimony and the photograph were relevant to establish that Sanders died as a result of the injuries she sustained in the collision. The State was required to prove that Smith caused the death through her reckless driving,
5. Smith contends that the trial court erred in allowing the State to introduce the testimony of Smith's sister, Falisha Scott, who testified that Smith had driven the Trailblazer without permission on the night of the accident. Smith contends that such testimony was irrelevant and prejudicial. Because we find that the trial court did not abuse its discretion, we disagree.
The "[a]dmission of evidence is a matter committed to the sound discretion of the trial court, and the trial court's evidentiary decisions will not be disturbed on appeal
Prior to Scott taking the witness stand, the trial court conducted a conference with counsel outside the presence of the jury regarding the substance and admissibility of Scott's testimony. Smith contended that Scott's testimony regarding Smith's unauthorized use of Scott's car and name would be irrelevant and overly prejudicial. The State argued, and the trial court agreed, that Scott's testimony regarding Smith's unauthorized use of her name was relevant to prove the State's case regarding the offenses of forgery and giving a false name, and that her testimony regarding Smith's unauthorized use of her car was relevant to show the possible motive for Smith's reckless manner of driving because it was possible that, since Smith did not have permission to use the car, she was "trying to get where she's going, and get back before Falisha would realize that the car was gone." We find that the trial court did not abuse its discretion in finding that the testimony was relevant and admissible.
6. Smith contends that the trial court erred in denying her motion for mistrial after the State's witness, Detective Thomas, improperly put Smith's character into evidence. We disagree.
As a threshold matter, we note that
During the trial, the prosecutor questioned Detective Thomas about the circumstances surrounding his discovery that Smith was not Falisha Scott, contrary to what Smith had told officers at the time of her arrest. The prosecutor asked Detective Thomas whether Scott seemed surprised when she was informed that he'd spoken to another woman who was impersonating her. Detective Thomas responded that Scott "wasn't surprised that her sister used her name. She stated she'd done that before." Defense counsel objected, and the trial court immediately instructed the jury to disregard the statement, stating that the response was outside the scope of the question. The jury was then excused from the courtroom, defense counsel moved for a mistrial, and the trial court conducted a conference with counsel to address the impropriety. After hearing from both parties, the trial court denied the motion for mistrial, finding that the inappropriate response was not elicited by the prosecutor, that the witness' answer was not responsive to the question, and that the curative instruction given to the jury immediately after the response was adequate. The trial court also noted that the statement that Smith had used her sister's name before did not necessarily mean that such use constituted a crime. Furthermore, the trial court offered to give an additional curative instruction to the jury. Defense counsel acknowledged that a curative instruction had already been given to the jury and ultimately decided that an additional curative instruction would just highlight the response at issue.
It is well settled that evidence of the character of the defendant, "including evidence which in any manner shows or tends to
Furthermore, "a mistrial is not always required when testimony improperly touches upon the character of the accused, especially when the testimony is not purposefully elicited by the State."
7. In her last enumeration of error, Smith contends that the trial court improperly charged the jury by giving the State's requested charge regarding "strict liability" and refusing to give Smith's requested charge regarding "accident" with regard to the moving traffic offenses of homicide by vehicle and reckless driving. We disagree.
(a) Smith first asserts that the trial court erred in charging the jury on strict liability, arguing that the evidence presented at trial did not support such a charge.
At trial, the trial court instructed the jury that "[t]he moving traffic violations defined in the Official Code of Georgia Title 40, Chapter 6 are strict liability offenses," and that the State is therefore not required to prove mental fault. The trial court further instructed the jury that, in the context of the offense of reckless driving, "the State will have met its burden of proof as to the Defendant's criminal intent if you find beyond a reasonable doubt that the defendant operated her motor vehicle in a reckless disregard for the safety of persons or property."
"[V]iolations of the offenses set forth in Title 40, Chapter 6, unless otherwise indicated, are strict liability offenses. As such, the [S]tate is not required to prove mental fault."
MILLER, P.J., and BRANCH, J., concur.
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