Fowler v. State
| Decision Date | 24 June 1986 |
| Docket Number | No. 72505,72505 |
| Citation | 347 S.E.2d 322,179 Ga.App. 492 |
| Parties | FOWLER v. The STATE. |
| Court | Georgia Court of Appeals |
Thomas E. Fortenberry, Marietta, for appellant.
Thomas J. Charron, Dist. Atty., Debra H. Bernes and W. Thomas Weathers III, Asst. Dist. Attys., for appellee.
Fowler appeals his conviction of vehicular homicide in the first degree, based on driving under the influence of alcohol.
At approximately 1:15 a.m. on the alleged date of the offense, two witnesses traveling in an automobile at the posted speed limit observed a Chevelle automobile following very closely behind them. After twice swerving into the passing lane in unsuccessful attempts to pass, the Chevelle finally passed them at a high rate of speed and disappeared into the distance. Seconds later, their vehicle approached the scene of an accident wherein the Chevelle had struck a tree.
There were three occupants of the Chevelle. The passenger in the right front seat died shortly after the impact. Appellant, who was in the driver's seat, and the other occupant, who was in the back seat, were both severely injured but survived the collision.
A police officer summoned to the scene smelled the odor of alcohol on appellant's breath and followed the ambulance to the hospital, where he read the appellant his implied consent rights, although appellant was incoherent at the time. See Strong v. State, 231 Ga. 514, 202 S.E.2d 428 (1973); Long v. State, 176 Ga.App. 89(1), 335 S.E.2d 587 (1985). A blood sample drawn from appellant 1 1/2 hours after the accident occurred showed his blood-alcohol content to be .10 percent. Held:
1. Because the blood sample was not drawn until 1 1/2 hours after the impact, appellant claims that it was not proven that he was intoxicated at the time of impact.
The evidence demonstrated that appellant was driving at an excessive rate of speed, that he had consumed five or six beers on the night of the accident, and that he had the odor of alcohol on his breath immediately after the accident. There is no evidence to indicate that he had any opportunity to consume additional alcohol between the time of the collision and the time the blood sample was drawn. Viewing the evidence as a whole in the light most favorable to the verdict, we hold that a rational trier of fact could reasonably have found the appellant guilty of the offense charged beyond a reasonable doubt. See generally Jackson v. Virginia, 443 U.S. 307, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979); Stewart v. State, 165 Ga.App. 62(1), 299 S.E.2d 134 (1983).
2. Appellant contends that the trial court erroneously exempted the chief investigating police officer in the case from the rule of sequestration in violation of OCGA § 24-9-61. Appellant had sought either to exclude this witness' testimony altogether or to require the state to call him as its first witness. However, the state's attorney maintained that he needed the officer at counsel table to assist in the prosecution and that to require him to testify first would interfere with an orderly presentation of the evidence. Blalock v. State, 250 Ga. 441(1), 298 S.E.2d 477 (1983). See also Ryles v. State, 177 Ga.App. 537, 339 S.E.2d 792 (1986).
3. Appellant contends that a mistrial should have been granted based on the action of the state's attorney in removing an item of evidence from the courtroom and discussing it with two sequestered witness who had not yet testified. The exhibit in question was an enlargement of a "blood alcohol request" form which had been filled out in the name of "John Doe." It was appellant's intention to use this exhibit to impeach the testimony of certain state's witnesses. During a recess in the trial, the assistant district attorney removed the exhibit from the courtroom and took it into the witness room, where he admittedly discussed it with two of the state's witnesses who had not yet testified.
While the conduct of the state's attorney may have had the appearance of impropriety, the record does not indicate that either of the sequestered witnesses was interviewed with respect to the exhibit in the presence of the other, nor that it was revealed to them what the prior testimony had been with respect to any issue. See generally General Oglethorpe Hotel Co. v. Lanier, 99 Ga.App. 401(2), 108 S.E.2d 769 (1959); Bennett v. State, 107 Ga.App. 284(3), 129 S.E.2d 820 (1963). The trial court has the discretion to permit counsel to converse with a witness during a trial, and that discretion will not be interfered with unless abused. Smith v. State, 244 Ga. 814, 818, ...
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Howse v. State, A05A0256.
...a witness to be excepted from the rule of sequestration lies within the sound discretion of the trial court. Fowler v. State, 179 Ga.App. 492, 493(2), 347 S.E.2d 322 (1986). And the trial court does not abuse its discretion where, as here, the State advises the trial court that permitting t......
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Smith v. City of East Point
...about the identity or purity of the sample went to its weight, not its admissibility. Mutcherson v. State, supra; Fowler v. State, 179 Ga.App. 492, 494(4), 347 S.E.2d 322. The contention is also made that the urinalysis results were inadmissible because the person who conducted the tests di......
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Mullen v. State
... ... This court previously has held that in similar circumstances, the exception of a witness from the rule of sequestration does not constitute an abuse of the trial court's discretion, e.g., Mathews v. State, 183 Ga.App. 224(1), 358 S.E.2d 639 (1987); Fowler v. State, 179 Ga.App. 492, 493(2), 347 S.E.2d ... 322 (1986), particularly where, as here, the unsequestered witness testified about post-arrest events. Mathews, supra ... 3. In two enumerations appellant contends the trial court erred by allowing into evidence testimony ... ...
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Buffington v. State
...speculation of tampering, it is proper to admit the evidence and let any doubt go to its weight. [Cit.]' [Cit.]" Fowler v. State, 179 Ga.App. 492, 494(4), 347 S.E.2d 322 (1986). In the present case, there was, at most, "only a bare speculation of tampering." Accordingly, the evidence was pr......