Corbett v. State

• Decision Date: 31 January 2006
• Docket Number: No. A05A1635.,A05A1635.
• Citation: 627 S.E.2d 365,277 Ga. App. 715
• Parties: CORBETT v. The STATE.
• Court: Georgia Court of Appeals

277 Ga. App. 715

627 S.E.2d 365

CORBETT v. The STATE.

No. A05A1635.

Court of Appeals of Georgia.

January 31, 2006.

Reconsideration Denied February 23, 2006.

COPYRIGHT MATERIAL OMITTED

James Walker, Tifton, for Appellant.

Clifford Bowden, District Attorney, Kevin Hutto, Bradford Rigby, Assistant District Attorneys, for Appellee.

ANDREWS, Presiding Judge.

James Carroll Corbett, convicted by a jury of vehicular homicide by driving under the influence of alcohol to the extent that it was less safe for him to drive (OCGA § 40-6-391(a)(1)),¹ appeals following denial of his motion for new trial, contending that the evidence was legally insufficient and that he received inadequate assistance of counsel.

1. Corbett, in his second and third enumerations of error, argues that the trial court erred in denying his motion for directed verdict on Counts 2 and 4 and that the evidence was legally insufficient to support the jury's verdict on all counts.

On appeal from a criminal conviction, the evidence is viewed in the light most favorable to the verdict. Paul v. State, 231 Ga.App. 528, 499 S.E.2d 914 (1998). We do not weigh the evidence or determine witness credibility but only determine whether the evidence is sufficient under Jackson v. Virginia, 443 U.S. 307, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979). The standard for reviewing both a challenge to the sufficiency of the evidence and the denial of a motion for a directed verdict is that the verdict must be upheld if any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt. Id.; Williams v. State, 233 Ga.App. 217(1), 504 S.E.2d 53 (1998).

So viewed, the evidence was that, on September 28, 2002, Tifton Police Officer Story and Lieutenant Tyson responded to a one-vehicle wreck on Third Street around 9:15 p.m. and found a 1996 Ford F-150 pickup truck had hit two utility poles which were laying over the truck. Nearby, the officers found the body of Jesus Urbina Hernandez on the ground with a Spanish New Testament nearby. Corbett was outside the truck and, when he was approached, both officers smelled alcohol and noticed his eyes were glassy and bloodshot. Corbett was unsteady on his feet and appeared to the officers to be under the influence of alcohol. When Lieutenant Tyson examined the truck, he saw a liquid all over the floorboard of the truck which he determined to be beer. He also saw darker spots of the liquid on the seat and dash. Just outside the passenger door, Tyson found an open can of Natural Light beer and a bottle of Lord Calvert whiskey. Tyson also noted a large fractured area in the windshield directly in front of the driver's seat, indicating contact straight into the windshield. Corbett was placed under arrest for DUI and read the implied consent notice. He consented to the test and was tested on the Intoxilyzer 5000 approximately 40 minutes to an hour after the wreck. He registered 0.104 blood alcohol concentration.

Dr. Clark, the medical examiner, performed the autopsy of Hernandez and found a broken neck, a lacerated spinal cord, and fractured vertebrae. In his opinion, these injuries indicated a "tremendous impact to the back right side of his head ... causing the fracturing of the neck." The autopsy also revealed a large bruise to the back of Hernandez's head where his head impacted some solid surface; injuries to the abdomen, colon, spleen and kidney; fractured right pelvic bone; and brain hemorrhaging. From his examination, Dr. Clark opined that Hernandez was struck from behind by a vehicle coming directly toward him. Based on bruising, Dr. Clark concluded that the height of the initial impact to Hernandez was 21 to 22 inches above his heel. Hernandez tested negative for the presence of alcohol or drugs.

Lieutenant Tyson, a certified accident reconstructionist, found no skid marks prior to Corbett's impact with the telephone poles that would indicate evasive action. His measurements taken at the scene were consistent with Hernandez having been in the middle of the street when he was hit. He also described the location of the accident as very dark.

Evidence of a similar transaction was also introduced. On May 31, 2003, Anthony Gray was sitting in a mall parking lot when he observed an extended cab Ford truck, driven by Corbett, driving over curbs, through the grass, and over the curb by the road. This conduct continued for approximately 30 minutes and Gray decided to leave because the truck was riding real close to vehicles, including Gray's truck. Gray backed out and, before he could get his truck in drive, Corbett's truck had turned around and run into the rear of Gray's truck. Officer Hogan responded and found Corbett unsteady on his feet, with red bloodshot eyes, and smelling of alcohol. When tested on the Intoxilyzer 5000, Corbett's blood alcohol concentration registered 0.166.

Corbett testified and acknowledged that, on September 28, 2002, he had been moving his family to another apartment and he "drank a few beers that afternoon in the course of the move." Around 8:00 p.m., he went to get food and, on the way, he went into Berrien County to pick up a bottle of Lord Calvert. As he was driving down Third Street and coming into a curve, Corbett saw a man standing in the middle of his lane. He did not brake, but started to swerve about the time he struck Hernandez. Having been a paramedic for 20 years, Corbett had been through training and taught not to lock up the brakes, but to do graduated braking. Corbett acknowledged that according to the law, "I was not supposed to be on the road; but somewhere in there has to be considered the fact that Jesus was standing ... in the middle of the road." He believed that he "had full faculties to be able to avoid that if he wouldn't have [been standing in the middle of the road]."

Although contending that he was not physically impaired when he struck Hernandez, Corbett also acknowledged that he "was obviously under the influence of the alcohol." He further acknowledged that he had drunk four or five beers that afternoon and that he had an open can of beer in the truck which he was drinking while he drove.

(a) Corbett contends that the trial court erred in denying his motion for directed verdict on Counts 2 (vehicular homicide by DUI with more than 0.08 grams of blood alcohol concentration) and 4 (DUI with more than 0.08 grams of blood alcohol concentration) because there was insufficient proof of the blood alcohol concentration.

Officer Story was asked what the results of the Intoxilyzer testing were and he responded ".104." Officer Hogan testified regarding the 2003 similar act that the results of the test "were .166." Corbett's argument is that these statements are insufficient to prove that his blood alcohol concentration was 0.08 grams or more. This argument, however, is premised on these two statements being the only evidence considered regarding this issue. The record and transcript also show that Corbett stipulated that the Intoxilyzers used for the charged incident and the similar act were "used to measure the blood alcohol content" of his body. Further the two officers testified that to use the Intoxilyzer, one blows into the mouthpiece and two breath samples are taken that register "blood alcohol content" based on the breath sample. Both officers also read into evidence their implied consent cards which include the language ".08 grams." Also, the trial court fully charged the jury on the statutory definitions of alcohol concentration and the requirements for conviction.

Considering the totality of the evidence, we find that any rational trier of fact could find Corbett guilty of these two counts. Goddard v. State, 242 Ga.App. 154, 155(2), 529 S.E.2d 184 (2000); Banks v. State, 235 Ga. App. 701, 703(2), 509 S.E.2d 63 (1998); Burks v. State, 195 Ga.App. 516, 518(5), 394 S.E.2d 136 (1990).

(b) Corbett also argues that the evidence was legally insufficient to support his conviction of vehicular homicide, less safe, because there was no evidence that he was driving recklessly or driving badly.

The vehicular homicide statute requires the State to establish a causal connection between the defendant's violation of the DUI statute and the victim's death. It is not required that the defendant actually commit an unsafe act. Miller v. State, 236 Ga.App. 825, 828(1), 513 S.E.2d 27 (1999); Shelton v. State, 214 Ga.App. 166, 168(2), 447 S.E.2d 115 (1994).

Here, Corbett's defense was accident pursuant to OCGA § 16-2-2 based on Hernandez's standing in the middle of the road, the dark conditions, and his inability to avoid Hernandez. The jury was charged on and considered this defense. See King v. State, 262 Ga.App. 37, 40(4), 584 S.E.2d 652 (2003).

The issue of proximate cause is at issue when considering the conduct of Hernandez and the resulting accident.

If the injury did not flow naturally and directly from the defendant's wrongful act, or could not reasonably have been expected to result from his wrongful act, or would not have resulted but for the interposition of an independent and unforeseen...