Harris v. State

Decision Date22 March 2005
Docket NumberNo. A04A2124.,A04A2124.
PartiesHARRIS v. The STATE.
CourtGeorgia Court of Appeals

Bernard Brody, Atlanta, for Appellant.

Patrick Head, District Attorney, Amy McChesney, Henry Thompson, Assistant District Attorneys, for Appellee.

PHIPPS, Judge.

After a jury trial, Jason Ian Harris was convicted and sentenced for driving under the influence of alcohol, reckless driving, vehicular homicide and five counts of serious injury by vehicle. On appeal, Harris claims that the trial court erred by (1) denying his motion to dismiss, (2) denying his general demurrer, (3) allowing the state to introduce evidence of his refusal to submit to chemical testing, (4) allowing the state to introduce similar transaction evidence of a prior DUI offense, (5) denying his motion to strike a prospective juror, (6) failing to merge the convictions for serious injury by vehicle and homicide by vehicle and (7) failing to grant a new trial based on newly discovered evidence. For reasons that follow, we affirm Harris's convictions and sentences for vehicular homicide and serious injury by vehicle and vacate his convictions and sentences for driving under the influence of alcohol and reckless driving.

The evidence showed that on January 19, 2003, Harris, his fiancée and his children moved from the Washington, D.C. area to a house in Marietta. After driving 600 miles, being awake for more than 30 hours and spending the day unloading moving trucks, Harris decided to pick up dinner for his family. Harris drove to the restaurant and drank a margarita while waiting for his food. On his way home, Harris got lost and decided to call his fiancée. He turned on the interior light in his truck and looked down at his cellular phone to try to find her number. While making the call, he drove straight through an intersection in a left-turn-only lane and struck two vans, killing a woman and injuring five children. A police officer and a paramedic who came to the scene testified that Harris said that, prior to the collision, he had been at a bowling alley where he had been drinking. Another police officer and a fireman at the scene smelled alcohol on Harris's breath. Three drivers who had observed Harris's driving shortly before the collision testified that he was swerving back and forth across the road and that he had narrowly missed two other cars.

After the collision, Harris was transported to North Fulton Regional Hospital, where he was advised of his implied consent rights. Harris refused to submit to a chemical test of his blood. A Cobb County magistrate issued a search warrant to obtain Harris's bodily fluids for chemical testing. Two samples obtained pursuant to the warrant tested positive for methamphetamine and cocaine.

The state also obtained results of a medical test of Harris's blood plasma which revealed that his blood alcohol level one and one-half hours after the collision was 0.057 grams. An expert for the state opined that if Harris had an empty stomach, his blood alcohol level at the time of the collision could have been as high as 0.0795 grams.

Harris was indicted for driving under the influence of alcohol, cocaine and methamphetamine (Count 1), reckless driving (Count 2), vehicular homicide (Counts 3 and 4) and serious injury by vehicle (Counts 5 through 14). Counts 3 through 14 were alternative counts, predicated on the underlying offenses of driving under the influence of alcohol and drugs and reckless driving.

Harris filed a motion to suppress the results of any tests performed on the bodily fluids seized from him while in the hospital. The motion was granted because the warrant was signed by a Cobb County magistrate and was executed in Fulton County. After that motion was granted, Harris filed a motion to dismiss Counts 1, 3, 5, 7, 9, 11 and 13 of the indictment, which were all based on the offense of driving under the influence of alcohol and drugs. With the drugs now suppressed, Harris argued that he could not be convicted on those counts. The trial court denied the motion, but the trial proceeded with an amended indictment that excluded any mention of drugs.

Harris also filed a motion in limine to exclude evidence of his refusal to take a state-administered blood test. He argued that by disregarding his refusal and subjecting him to an involuntary test, the officer violated the implied consent law. The court denied Harris's motion.

1. Harris claims that the trial court erred by denying his motion to dismiss Counts 1, 3, 5, 7, 9, 11 and 13.
(a) Count 1 charged Harris with a violation of OCGA § 40-6-391(a), which provides that

A person shall not drive or be in actual physical control of any moving vehicle while: (1) Under the influence of alcohol to the extent that it is less safe for the person to drive; (2) Under the influence of any drug to the extent that it is less safe for the person to drive; (3) Under the intentional influence of any glue, aerosol, or other toxic vapor to the extent that it is less safe for the person to drive; (4) Under the combined influence of any two or more of the substances specified in paragraphs (1) through (3) of this subsection to the extent that it is less safe for the person to drive....

Harris argues that the indictment, which charged him with driving under the influence of alcohol and drugs, charged a violation of OCGA § 40-6-391(a)(4). With the suppression of the drug test results, the state was able to present evidence at trial only of a violation of subsection (a)(1). Harris claims that he was therefore entitled to have Counts 1, 3, 5, 7, 9, 11 and 13 of the indictment dismissed.

The trial court determined that Harris had been charged with violations of subsections (a)(1) and (a)(2), not (a)(4). As a result, the court denied Harris's motion.

OCGA § 40-6-391(a) establishes a single crime of driving under the influence and subsections (a)(1) through (a)(4) merely define different methods of committing that one crime.1 It is permissible to allege alternative methods of violating OCGA § 40-6-391(a) in a single count.2 And "[i]t is sufficient for the State to show that a crime was committed in any one of the separate ways listed in the indictment, even if the indictment uses the conjunctive rather than disjunctive form."3

Although the indictment could have been more artfully drafted, the trial court did not abuse its discretion by denying Harris's motion to dismiss based on its determination that he had been charged with driving under the influence of alcohol and driving under the influence of drugs, violations of OCGA § 40-6-391(a)(1) and (a)(2).4

(b) Harris claims that the trial court erred by allowing the state to redact the indictment.

Prior to trial, Harris was given the option of proceeding with the original indictment which contained references to cocaine and methamphetamine or waiving his right to be reindicted and agreeing to an amended indictment that removed all references to those drugs. His counsel responded as follows:

We do feel as if we are being put into an awkward position, a position where we are being forced to waive Mr. Harris' right to indictment. However, we feel as if—we object to being put in that position, but we feel as if we have no choice but to waive—to allow this redacted indictment to serve as the indictment in this case. So we will for purposes of the trial choose this indictment over the original indictment.

By allowing the case to proceed on the redacted indictment, Harris acquiesced in the court's ruling. "No matter how erroneous a ruling of a trial court might be, a litigant cannot submit to a ruling or acquiesce in the holding, and then complain of the same on appeal. He must stand his ground. Acquiescence deprives him of the right to complain further."5

2. Harris claims that the trial court erred by denying his general demurrer to the charges of serious injury by vehicle included in Counts 5 through 14.

A general demurrer challenges the validity of the indictment.6 An indictment is subject to a general demurrer only if the defendant can admit the charge as made and still be innocent.7

To be guilty of the offense of serious injury by vehicle, a person

shall cause bodily harm to another by depriving him of a member of his body, by rendering a member of his body useless, by seriously disfiguring his body or a member thereof, or by causing organic brain damage which renders the body or any member thereof useless through the violation of Code Section 40-6-390 [reckless driving] or 40-6-391 [driving under the influence of alcohol, drugs or other intoxicating substances].8

Counts 5 through 14 charged Harris with causing bodily harm to five victims by seriously disfiguring their bodies through violations of OCGA §§ 40-6-390 and 40-6-391. The injuries are described as fractured bones in the head, legs and/or arms of the victims.

Harris claims that he can admit those charges and still be innocent because fractured bones do not constitute serious disfigurement. We cannot agree. Whether fractured bones constitute serious disfigurement will depend on the specific facts of the case,9 and the state is not required to allege all of those facts in the indictment.10 Counts 5 through 14 all track the language of the statute and sufficiently contain and inform Harris of the elements of the offenses charged.11 The trial court did not err in overruling Harris's general demurrer.

3. Harris claims that the trial court erred by allowing the state to introduce evidence of his refusal to submit to chemical testing.

(a) Harris first argues that the refusal was not admissible because the officers violated the Georgia implied consent law when they sought a search warrant to obtain his bodily fluids after he had refused to submit to chemical testing. Harris is correct that the officers did not have the right, after his refusal, to obtain a search warrant and forcibly conduct the tests.12 But...

To continue reading

Request your trial
14 cases
  • Weaver v. State
    • United States
    • Georgia Court of Appeals
    • June 28, 2019
    ..."[w]hether fractured bones constitute serious disfigurement will depend on the specific facts of the case." Harris v. State , 272 Ga. App. 366, 369 (2), 612 S.E.2d 557 (2005).Here, the State presented evidence from a child abuse pediatrician who testified that, upon reviewing the infant's x......
  • Bray v. State
    • United States
    • Georgia Court of Appeals
    • February 4, 2015
    ...whether fractured bones rise to the level of serious disfigurement turns on the specific facts of the case. See Harris v. State, 272 Ga.App. 366, 369(2), 612 S.E.2d 557 (2005). And evidence that the victim fractured a bone, combined with photographs showing bruising or other visible injurie......
  • Garrett v. State
    • United States
    • Georgia Court of Appeals
    • October 13, 2010
    ...on improper passing). See also Dixon, 509 U.S. at 700, 113 S.Ct. 2849; Harris, 433 U.S. at 682, 97 S.Ct. 2912; Harris v. State, 272 Ga.App. 366, 373(6), 612 S.E.2d 557 (2005) (where DUI constituted a lesser included offense of vehicular homicide, the former merged with the latter); Himmel v......
  • Semo v. State
    • United States
    • Georgia Court of Appeals
    • February 8, 2021
    ...unlawfully possess and have under his control [a certain] Schedule I controlled substance."5 See generally Harris v. State , 272 Ga. App. 366, 373-374 (6), 612 S.E.2d 557 (2005) (determining that, as a lesser included offense, the reckless driving count merged into the vehicular homicide co......
  • Request a trial to view additional results

VLEX uses login cookies to provide you with a better browsing experience. If you click on 'Accept' or continue browsing this site we consider that you accept our cookie policy. ACCEPT