Duggan v. State

• Decision Date: 07 March 1997
• Docket Number: A96A2272,Nos. A96A2271,s. A96A2271
• Citation: 483 S.E.2d 373,225 Ga.App. 291
• Parties: , 97 FCDR 1321 DUGGAN v. The STATE. MATHESON v. The STATE.
• Court: Georgia Court of Appeals

Page 373

483 S.E.2d 373

225 Ga.App. 291, 97 FCDR 1321

DUGGAN v. The STATE.

MATHESON v. The STATE.

Nos. A96A2271, A96A2272.

Court of Appeals of Georgia.

March 7, 1997.

Wolfe & Steel, Brian Steel, Atlanta, for appellant in No. A96A2271.

B. Thomas Cook, Jr., Atlanta, for appellant in No A96A2272.

J. Tom Morgan, District Attorney, Robert M. Coker, Benjamin M. First, Assistant District Attorneys, for appellee.

SMITH, Judge.

Appellants Peter Martin Duggan and Robb T. Matheson were involved in a two-car collision that resulted in the death of the victim, a passenger in Matheson's vehicle. Duggan was indicted for homicide by vehicle in the first degree by reckless driving, homicide by vehicle in the first degree by driving under the influence, leaving the scene of an accident, driving under the influence (less safe), and reckless driving. Matheson was indicted for two counts of homicide by vehicle (reckless driving and driving under the influence), driving under the influence (less safe), and reckless driving.

At trial, the jury found Duggan guilty of vehicular homicide based on reckless conduct, failure to remain at the scene of an accident, driving under the influence of alcohol, and reckless driving. He was acquitted of vehicular homicide based on DUI. Matheson was likewise acquitted of vehicular homicide/DUI; he was found guilty of vehicular homicide/reckless conduct, driving under the influence of alcohol, and reckless driving. Appellants' motions for new trial were denied, and they appeal.

1. Matheson raises the general grounds as to his convictions for driving under the influence and homicide by vehicle based on reckless driving. Construed to support the jury's verdict, the evidence shows that Duggan, Matheson, the victim, and a fourth individual, Anderson, embarked after work on an evening of drinking to celebrate Anderson's birthday. After drinking beer at the home of two participants, they traveled in two cars to a local bar where the drinking continued. Conflicting accounts were presented concerning how much they had to drink. Matheson insisted in a statement to police and a statement to the victim's attorney that he was the "designated driver" and was drinking "lightly," but testimony from other witnesses and Matheson's admissions authorized the jury to conclude that he had five or six beers and drank at least one shot of Jagermeister, a liqueur. The other participants were also drinking heavily as well as smoking marijuana. When Anderson left the bar some time after midnight, in his opinion all the men were "high."

The remaining three men "closed the place down" at approximately 4:30 a.m., according to Matheson, and decided to drive to another bar which remained open around the clock. Duggan drove one car while Matheson drove the other with the victim "passed out" in the front seat. They drove side by side along the downhill curving ramp from I-285 east to I-85 south at speeds between 70 and 80 mph, although the speed limit was 55. Duggan claimed that Matheson attempted to pass him on the ramp, lost control, and hit his car. Matheson, on the other hand, claimed that Duggan attempted to pass him and "bumped" his car, causing him to lose control. Matheson's car rolled repeatedly, ejecting the victim and crushing him to death.

Duggan fled the scene, although he insisted at trial that he left to get help. The investigating officer testified that Matheson was very talkative, red-eyed, very nervous, and smelled of alcohol. At approximately 9:00 the same morning, Matheson was treated at the hospital by a nurse who noted that he still smelled of alcohol. Matheson at first told police that he "just lost control," then told the victim's attorney that he was struck by a mysterious "big white car." Ultimately he "came clean" to the attorney and revealed Duggan's involvement.

On appeal, Matheson seeks to impeach Anderson and discredit his testimony regarding the events of the evening, pointing to inconsistencies and conflicts in Anderson's testimony and that of other witnesses. This court, however, cannot weigh the evidence or determine witness credibility. OCGA § 24-9-80; Powell v. State, 218 Ga.App. 556, 557, 462 S.E.2d 447 (1995). With respect to his conviction for DUI, Matheson admitted that he was drinking on the night in question, and the only question was whether he had consumed alcohol to the extent that he was a less safe driver. ¹

Driving under the influence of alcohol may be shown by circumstantial evidence, if the evidence excludes any reasonable alternative hypothesis except that of guilt. Posey v. State, 215 Ga.App. 565, 566(2), 451 S.E.2d 463 (1994). Matheson offered no alternative explanation for his condition at the scene or at the hospital several hours later, or for the testimony that he had consumed a substantial quantity of alcohol. "Evidence as to the manner of driving, including excessive speed, may be taken into account where there is evidence that the defendant has been drinking, for the purpose of determining whether or not his manner of driving shows him to have been affected by the intoxicant to the extent that he drives less safely and carefully than he might otherwise have done, and for this purpose evidence of travel in excess of the legal rate of speed may be considered." (Citation and punctuation omitted.) Collins v. State, 177 Ga.App. 758, 759(2), 341 S.E.2d 288 (1986).

The cases relied on by Matheson are distinguishable. In Groom v. State, 187 Ga.App. 398, 400, 370 S.E.2d 643 (1988), no one testified to the time span over which the accused consumed alcohol or the quantity he consumed. There was no testimony that the defendant was under the influence of alcohol at any time, and no one observed him at the scene because he fled before the accident was discovered. In Davis v. State, 206 Ga.App. 647, 426 S.E.2d 267 (1992), the accused denied drinking and presented a negative blood alcohol test. In Clay v. State, 193 Ga.App. 377, 387 S.E.2d 644 (1989), the accused denied drinking other than the night before the incident and presented witnesses who testified that he had not consumed alcohol or shown any signs of intoxication on the morning of his arrest and that his eyes were normally red.

In this case, testimony was presented that Matheson had been drinking, was driving well in excess of the speed limit, and attempted to pass another vehicle on what he knew to be a sharp curve, causing the collision. This provided evidence, albeit circumstantial, that Matheson was a less safe driver at the time of the collision. Gilbert v. State, 262 Ga. 840, 841(1), 426 S.E.2d 155 (1993).

With respect to Matheson's conviction for vehicular homicide based on reckless driving, evidence was presented that, after consuming alcohol, he drove at speeds of 20 to 25 miles over the speed limit and attempted to pass another vehicle on a sharp downhill curve but was unable to stay in his lane. Viewed in the light most favorable to the verdict, sufficient evidence was presented to enable a rational trier of fact to find that Matheson was guilty of the offenses charged beyond a reasonable doubt. Mote v. State 212 Ga.App. 551(1), 442 S.E.2d 799 (1994); McNabb v. State, 180 Ga.App. 723, 725(4), 350 S.E.2d 314 (1986).

2. Matheson also contends the trial court mischaracterized evidence and overemphasized the importance of testimony of witnesses for the State in its pre-evidentiary statement to the jury. In its precharge, the trial court stated that "legal evidence consists of two things and only two things. One of those will be sworn testimony under oath from the witness stand by those witnesses subpoenaed by the State, because the State has the burden of subpoenaing witnesses, bringing them into court and having them testify. But anyone who is called as a witness, takes the stand and testifies under oath is giving evidence that you may consider during the trial of this case." Because of the uncertainty as to whether a defendant will present evidence, it is probably unwise to refer to the source of evidence in a pre-evidentiary instruction. We note, however, that the statement complained of was given as the trial court instructed the jury of the State's burden to prove its case. The trial court also referred to "anyone who is called as a witness" and reiterated in its main charge that "[e]vidence includes all of the testimony of the witnesses and the exhibits admitted during the trial of the case." Any verbal slip in the preliminary charge was thus corrected. See Malone v. State, 219 Ga.App. 728, 730(2), 466 S.E.2d 645 (1995). Moreover, Matheson deprived the trial court of any opportunity to correct the asserted error because he failed to make a contemporaneous objection. Id. at 729(2), 466 S.E.2d 645.

Matheson also contends the trial court's main charge was inadequate to correct the complained-of error in its pre-evidentiary statement, in effect asserting that a curative instruction should have been given. Matheson, however, never requested a curative instruction or a mistrial. Once again, he failed to give the trial court the opportunity to correct the asserted error. Id.

3. Both Matheson and Duggan enumerate as error the trial court's charge that "the law does not permit jurors in arriving at your verdicts to be governed by sympathy or prejudice. You may not, therefore, render a verdict in this case based upon sympathy for any party or prejudice against any party. Any verdict that you return must be supported by the evidence produced at trial without in any way being affected by either sympathy or prejudice."

If circumstances exist that may unduly arouse the jury's emotions of prejudice, hostility, or sympathy, the trial court may in its discretion deliver an appropriate charge. Emory Univ. v. Lee, 97 Ga.App. 680, 698, 104 S.E.2d 234 (1958) (citing Johnson v. State, 128 Ga. 102(2), 57 S.E. 353 (1907), and Powers v. State, 138 Ga. 624(5), 75 S.E. 651 (1912)). See also Dill v. State, 254...