Hamby v. State, A02A1596.

• Decision Date: 07 August 2002
• Docket Number: No. A02A1596.,A02A1596.
• Citation: Hamby v. State, 256 Ga.App. 886, 570 S.E.2d 77 (Ga. App. 2002)
• Parties: HAMBY v. The STATE.
• Court: Georgia Court of Appeals

570 S.E.2d 77

256 Ga. App. 886

HAMBY v.The STATE.

No. A02A1596.

Court of Appeals of Georgia.

August 7, 2002.

LaMalva, Read & Oeland, David A. LaMalva, Paul J. Oeland IV, Columbus, for appellant.

W. Kendall Wynne, Jr., Dist. Atty., for appellee.

JOHNSON, Presiding Judge.

Following a bench trial, Timothy Hamby was found guilty of three counts of homicide by vehicle in the second degree, and one count each of speeding, driving too fast for conditions, and failing to exercise due care for pedestrians in the roadway.Hamby appeals, arguing the evidence is insufficient to support his convictions, he was denied effective assistance of counsel, and the trial court erred in sentencing him.We find no merit in Hamby's contentions and affirm his convictions.

1.Viewed in a light most favorable to support the factfinder's verdict, the evidence shows that a witness observed Hamby's vehicle strike a 13-year-old victim, who was riding his bike on the road.The witness saw Hamby's vehicle for a distance of 50-75 yards prior to impact and estimated that Hamby was traveling 50-55 mph in the 45-mph speed zone.According to the witness, Hamby took no action to avoid the collision and did not brake, slow down, or sound his horn.Hamby stipulated that the victim died as a result of the collision.

The officer who responded to the scene testified that Hamby told the officer he had seen the victim in the roadway when Hamby left his home to go to the store and on his way back from the store.Hamby also told the officer he was driving 60 mph and he knew the speed limit was 45 mph.According to the officer's testimony, Hamby told the officer that he thought the victim was going to go to the left, so he steered his car to the right to go around him and at the last moment the victim cut back to the right into his path.

An accident reconstruction expert testified that Hamby would have had 350 feet of sight distance in which to see the victim and take appropriate action to avoid a collision.He conservatively estimated Hamby's speed at 55-57 mph immediately before the collision.

Hamby contends the evidence was insufficient to support his convictions because the only evidence presented against him was that the vehicle he was driving struck the victim and the victim died as a result of being struck.We disagree.The evidence in the record clearly shows that Hamby was speeding, that he had 350 feet of sight distance in which to see the victim, and that he did not brake, slow down, or sound his horn prior to striking the victim.

OCGA § 40-6-180 mandates that "[n]o person shall drive a vehicle at a speed greater than is reasonable and prudent under the conditions and having regard for the actual and potential hazards then existing."These hazards include pedestrians or other traffic in the roadway.¹Based on the evidence in the record, the trial judge, as factfinder, was authorized to conclude that Hamby was speeding, driving too fast for conditions, and failed to exercise due care for pedestrians in the roadway.Since these three charges formed the bases of Hamby's three vehicular homicide counts, the trial court was also authorized to conclude that Hamby was guilty of these three counts of vehicular homicide.

2.Hamby contends he was denied effective assistance of counsel because his trial attorney failed to hire a defense expert in collision reconstruction.However, Hamby has failed to provide this Court with a reasonable probability that the result of his trial would have been different had his attorney hired a reconstruction expert.

To establish the prejudicial effect of his trial counsel's failure to present a reconstruction expert, Hamby is required to make an affirmative showing that specifically demonstrates how counsel's failure would have affected the outcome of his case.²At the hearing on Hamby's motion for...