Conyers v. State

• Decision Date: 07 November 1990
• Docket Number: No. S90A0629,S90A0629
• Parties: CONYERS v. The STATE.
• Court: Georgia Supreme Court

Page 423

397 S.E.2d 423

260 Ga. 506

CONYERS v. The STATE.

No. S90A0629.

Supreme Court of Georgia.

Nov. 7, 1990.

Paul L. Howard, Thomas, Kennedy, Sampson, Edwards & Patterson, Atlanta, for Conyers.

Patrick H. Head, Sol., Marietta, Philip M. Goldstein, Sr. Asst. Sol., Beverly M. Hartung, Asst. Sol., Marietta, for the State.

BENHAM, Justice.

Appellant was convicted of and sentenced for prohibited stopping on a controlled-access highway (OCGA § 40-6-203(a)(1)(I)), and for homicide by vehicle in the second degree (OCGA § 40-6-393(b)), the underlying traffic offense being backing a vehicle on a controlled-access highway (OCGA § 40-6-240(b)). ¹

Appellant and a passenger were driving east in the center lane of the northwest quadrant of I-285 when appellant believed he had missed his exit. The State presented evidence that appellant attempted to remedy his driving error by momentarily stopping while still on the interstate highway, putting his car into reverse, and backing up. Another vehicle struck appellant's car from behind, and appellant's passenger died from injuries sustained in the collision.

1. Appellant maintains that OCGA § 40-6-203, which prohibits stopping a vehicle in specified places is unconstitutional because two of its terms, "stop," and "to avoid conflict with other traffic," are defectively vague.

OCGA § 40-6-203 provides

Except when necessary to avoid conflict with other traffic, or in compliance with law or the directions of a police officer or official traffic-control device, no person shall: (1) Stop, stand, or park a vehicle: ... (I) On any controlled-access highway....

"Due process mandates that criminal laws give adequate warning of what conduct will constitute a crime." Price v. State, 253 Ga. 250(1), 319 S.E.2d 849 (1984). A penal statute is not void for vagueness if, "in a manner that does not encourage arbitrary and discriminatory enforcement," it "define[s] the criminal offense with sufficient definiteness that ordinary people can understand what conduct is prohibited. [Cit.]" Brinkley v. State, 253 Ga. 541(1), 322 S.E.2d 49 (1984). Webster's Third New International Dictionary defines "avoid" as "to keep away from; stay clear of," and "conflict" as "a striking or clashing together of material bodies or substances." "Stop" is statutorily defined in OCGA § 40-1-1(57)(B) as meaning

any halting, even momentarily, of a vehicle, whether occupied or not, except when necessary to avoid conflict with other traffic or in compliance with the directions of a police officer or traffic-control sign or signal.

Thus, OCGA § 40-6-203 prohibits any halting, even if momentary, of a vehicle on a controlled-access highway except when necessary to keep clear from striking other traffic or to comply with the directions of a police officer or traffic-control signal or sign. The statute is "definite and certain in its meaning. Men of common intelligence would not differ as to the application of its provisions. [Cit.]" McCord v. State, 248 Ga. 765, 766, 285 S.E.2d 724 (1982).

2. Appellant contends that the five-count accusation filed against him failed to apprise him sufficiently of the charges against him, thereby abrogating his right to due process. The accusation charged appellant with improper backing and improper stopping, and the remaining three paragraphs charged him with second degree vehicular homicide committed in three alternative ways. "[W]here one [crime] is set out in various ways in the different counts to meet diversities in the proofs, no election of counts will ordinarily be required, but all will be left open for the jury to pass upon in their verdict." Sutton v. State, 124 Ga. 815, 816-17, 53 S.E. 381 (1905). Appellant was sufficiently apprised of the charges against him.

3. Appellant argues that the evidence was insufficient to support the jury's verdict and that he was entitled to a directed verdict of acquittal. By establishing that appellant's car was in a driving gear when appellant missed his exit; that the car was in reverse when it was struck by the second car; and that to change from "Drive" to "Reverse" necessitated stopping the car at least momentarily, the State presented evidence from which it could be deduced that appellant had stopped his car on the highway. The State also presented evidence that I-285 was a controlled-access highway. Using gouges in the road surface and skid marks, an accident investigator calculated that appellant could have been backing up on the interstate highway at 3-5 mph at the time of the collision. The investigator also deduced from the post-collision condition of the filament of the back-up lights on appellant's car that they were illuminated at the time of impact. The emergency room physician who treated appellant testified that appellant told him that he had "been backing up his car on the highway when the car was struck from behind." This evidence, coupled with expert medical testimony that appellant's passenger died from injuries sustained in the resulting collision, was sufficient to uphold the verdicts on which the trial court entered judgment, prohibited stopping and second degree vehicular homicide while backing. Jackson v. Virginia 443 U.S. 307, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979).

4. During the testimony of the emergency room treating physician, appellant sought a mistrial on the ground that the portion of the emergency room record containing the physician's notes of appellant's inculpatory statement had not been provided appellant despite his request under OCGA § 17-7-211 for copies of all scientific reports to be introduced into evidence.

The "written scientific reports" discoverable under OCGA § 17-7-211 are reports "that would be used as scientific evidence by the prosecution in its case-in-chief or in rebuttal against the defendant." OCGA § 17-7-211(a). While there are instances in which an emergency room record may include test reports used as scientific evidence by the prosecution (see e.g., Paggett v. State, 188 Ga.App. 174, 372 S.E.2d 504 (1988) and Worth v. State, 183 Ga.App. 68(2a), 358 S.E.2d 251 (1987) which involve emergency room examinations of victims of alleged sexual abuse), that is not to say that every emergency room record is a scientific report subject to discovery under OCGA § 17-7-211. Appellant's inculpatory statement to the emergency room physician was not scientific evidence used by the prosecution; for that reason, the emergency room record containing the notation of appellant's statement did not constitute a scientific report subject to discovery under OCGA § 17-7-211. Since the physician's testimony was properly admitted, the trial court did not err in denying appellant's motion for mistrial after the State referred to the testimony in closing argument.

5. Appellant sought suppression of statements he made to law enforcement officers after the collision. The transcript of the hearing is not included...