Gentry v. State
| Decision Date | 08 March 1999 |
| Docket Number | No. A99A0536.,A99A0536. |
| Citation | 513 S.E.2d 528,236 Ga. App. 820 |
| Parties | GENTRY v. The STATE. |
| Court | Georgia Court of Appeals |
OPINION TEXT STARTS HERE
Billington & Associates, Donna L. Bearden, for appellant.
T. Joseph Campbell, District Attorney, for appellee. ANDREWS, Judge.
Mitchell Neal Gentry appeals from the judgment of conviction and sentence entered on jury verdicts finding him guilty of: two counts of homicide by vehicle in the first degree, serious injury by vehicle, driving under the combined influence of alcohol and cocaine, reckless driving, no proof of insurance, and the use of a license plate for the purpose of concealing or misrepresenting the identity of a vehicle.
1. Gentry claims the evidence was insufficient to support his conviction on the two counts of homicide by vehicle and on the counts for serious injury by vehicle and reckless driving.
In support of the two counts of first degree homicide by vehicle, the State produced evidence that Gentry operated his vehicle in violation of OCGA § 40-6-391(a)(4) while under the combined influence of alcohol and cocaine to the extent that it was less safe for him to drive, and that his operation of the vehicle caused a collision with another vehicle in which two passengers in Gentry's vehicle died. Evidence showed that, while Gentry operated his vehicle under the influence of alcohol and cocaine, he lost control of the vehicle as he was speeding and attempting to pass a vehicle in a no-pass zone. Gentry's out of control vehicle spun across the center line and collided with another vehicle in the oncoming lane of traffic. Both passengers in Gentry's vehicle, Sandra Fair and Anthony Shropshire, were killed in the collision. The driver of the other vehicle in the collision, Emerson Bennett, suffered multiple fractures of the pelvis, ribs and leg. His injuries required two surgical procedures and will probably require additional hip replacement surgery.
Tests conducted at the State Crime Lab on blood and urine samples given by Gentry shortly after the collision showed a blood alcohol concentration of .11 grams from the urine sample and .12 grams from the blood sample. Additional testing showed that Gentry's blood sample tested positive for the presence of a metabolite of cocaine, and his urine sample tested positive for cocaine and a cocaine metabolite. A forensic toxicologist from the State Crime Lab testified that the tests showed Gentry had ingested cocaine from one and a half to six hours prior to when the samples were drawn after the collision. An emergency medical technician who arrived at the accident scene shortly after the collision testified that an odor of alcohol was on Gentry's breath, that Gentry's pupils and slowness of verbal response showed possible signs of intoxication, and that Gentry said he had consumed "several vodkas."
An accident reconstructionist testified for the State that, based on evidence gathered from the collision scene, Gentry's vehicle was traveling between 74 and 81 mph when it spun out of control, and that the high rate of speed was a factor in Gentry's loss of control over the vehicle. The posted speed limit at that location was 55 mph. Gentry testified and admitted that he had been drinking alcohol and had ingested cocaine prior to the collision, although he denied that either substance affected his driving. Gentry also admitted he was speeding and attempting to pass in a no-pass zone when he lost control of the vehicle, but he claimed that he lost control solely because the brakes malfunctioned by locking when he attempted to slow down.
Evidence that Gentry was driving under the influence of alcohol and cocaine, along with evidence that the fatal collision occurred when he lost control of the vehicle while traveling at a high rate of speed in excess of the posted speed limit, was sufficient to allow the jury to conclude that Gentry was a less safe driver as a result of the influence of the alcohol and cocaine. "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." (Citations and punctuation omitted.) Duggan v. State, 225 Ga.App. 291, 293-294, 483 S.E.2d 373 (1997). The evidence was also sufficient to support the jury's conclusion that, without malice aforethought, Gentry caused the collision and the resulting death of his two passengers through violation of OCGA § 40-6-391(a)(4) by driving his vehicle under the combined influence of alcohol and cocaine to the extent that it was less safe for him to drive. OCGA § 40-6-393; Mote v. State, 212 Ga.App. 551, 552-553, 442 S.E.2d 799 (1994).
Although Gentry testified that a brake malfunction caused the fatal collision, the evidence presented in support of the theory that the brakes improperly locked and caused the collision was purely speculative. The State, on the other hand, produced evidence that inspection of the brakes after the collision showed no mechanical defects. The evidence as to the cause of the collision, though circumstantial, was sufficient to exclude every reasonable hypothesis except that of guilt, and was sufficient to support the jury's conclusion that Gentry was guilty beyond a reasonable doubt of both counts of vehicular homicide in the first degree. Dobson v. State, 222 Ga.App. 331, 332, 474 S.E.2d 630 (1996); Jackson v. Virginia, 443 U.S. 307, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979).
The evidence was also clearly sufficient for the jury to conclude beyond a reasonable doubt that Gentry was guilty of: reckless driving (OCGA § 40-6-390), causing serious bodily injury to the driver of the other vehicle in the collision through the violation of § 40-6-391 (OCGA § 40-6-394), and driving under the combined influence of alcohol and cocaine to the extent that he was a less safe driver (OCGA § 40-6-391(a)(4)).
2. Gentry claims that he was prejudiced by the court's failure to redact a dismissed...
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