Hill v. State
| Decision Date | 11 January 1993 |
| Docket Number | No. A92A2097,A92A2097 |
| Parties | HILL v. The STATE. |
| Court | Georgia Court of Appeals |
Donald C. Turner, Walter M. Henritze, Jr., for appellant.
Cheryl F. Custer, Dist. Atty., for appellee.
Hill was indicted and tried in six counts for (1) vehicular homicide in the first degree by driving a vehicle in reckless disregard for the safety of persons and property (guilty); (2) vehicular homicide in the first degree by causing death through driving and being in actual physical control of a moving vehicle while under the influence of cocaine and marijuana to a degree which rendered him incapable of safely driving (not guilty); (3) reckless driving in disregard of persons and property (merged with Count 1); (4) driving under the influence of drugs while in actual physical control of a moving vehicle to the extent that it was less safe to drive (guilty); (5) homicide by vehicle in the second degree for unlawfully driving a vehicle so as to cause the death of another person by improperly passing another vehicle in a no-passing zone (merged with Count 4); and (6) improper passing (guilty). He appeals from the denial of his motion for new trial.
The evidence presented at trial showed that Hill was driving a refrigerated truck west on Highway 138 between Athens and Atlanta near Conyers. The driver of a county dump truck in front of Hill testified that he was driving at about 45 or 50 miles per hour starting up a hill on a two-lane road with a left-turn-only lane in the middle. He thought he saw Hill's truck pulling up to come around him in the left turn lane. When the truck got to the rear tires of the dump truck, he "heard brakes and the flash of a car go by" from the opposite direction, and then heard a collision directly behind him. In his rear view mirror he saw Hill's truck slide sideways and turn over, and he radioed the police before he went back to check on the collision. Hill was sitting on the ground and shook his head when asked if he was okay.
Another witness testified that he was driving east on Highway 138 when he saw a white truck with a refrigerated compartment come over the centerline from the turning lane about two feet into his lane. The witness thought the truck was going to hit his vehicle, but it missed and he heard it hit the car right behind him. He stopped when he saw Hill's truck overturn and was the first person to get to the victim's car, where he discovered she was dead. The victim's car left about 46 feet of skid marks prior to impact; the entire driver's side was damaged and the roof was crushed in with the victim trapped inside. Hill's truck had lost a front axle and left front tire and was damaged along the side where the gas tank and refrigerated unit protruded. The truck left no skid marks prior to impact but traveled 162 feet after impact before it overturned.
Hill was taken by ambulance to the hospital complaining of pain. His eyes were not dilated and his speech was not slurred. After he was read the implied consent rights and signed a form agreeing to such tests, blood and urine samples were taken. A blood analysis was performed by the State Crime Lab which revealed the presence of marijuana metabolites indicating that Hill had either used marijuana within the past several hours or was a chronic abuser. The urinalysis disclosed a minute amount of cocaine in Hill's system. The officer who acquired Hill's consent to administer the tests testified that Hill told him at the hospital that "he should not have taken no street drugs." Hill admitted at trial that he had ingested both cocaine and marijuana but swore he had not used any drugs in the 72 hours prior to the collision. He claimed he was not attempting to pass the county dump truck but was driving down the road when he heard a bump, and the next thing he knew he was lying on the side of the road.
1. Appellant contends that since he was acquitted of the Count 2 charge of driving while under the influence of drugs, the evidence was insufficient to convict him of vehicular homicide by reckless driving under Count 1 of the indictment because there could be no evidence of drug use to prove any reckless driving.
This court has previously held that where an accused is charged with reckless driving, test results showing his use of drugs are admissible because the reckless driving violation could have been precipitated by the drug usage. Nash v. State, 179 Ga.App. 702(4), 347 S.E.2d 651 (1986). Daras v. State, 201 Ga.App. 512(1), 411 S.E.2d 367 (1991). Shadix v. State, 179 Ga.App. 644, 645(3), 347 S.E.2d 298 (1986).
2. Appellant complains that the trial court erred in failing to charge in regard to the standard of proof by circumstantial evidence under OCGA § 24-4-6. He concedes that the court did define circumstantial evidence in the charge, and that he neither requested an instruction containing the statutory language nor objected to the charge as given. Objections not made at trial are deemed waived and cannot be raised for the first time on appeal. Jacobson v. State, 201 Ga.App. 749, 751(2), 412 S.E.2d 859 (1991). Even where proper request is made, the failure to give the requested instruction is not ground for a new trial where the charge given substantially covers the same principles. Burris v. State, 204 Ga.App. 806, 811(3), 420 S.E.2d 582 (1992). This enumeration is without merit.
3. Appellant contends that the trial court's charge on criminal negligence was in error as criminal negligence has no part in the prosecution of the crime of vehicular homicide. To the contrary, Conyers v. State, 260 Ga. 506, 509(6d), 397 S.E.2d 423 (1990). Compare Abernathy v. State, 191 Ga.App. 350(2), 381 S.E.2d 537 (1989).
This issue was not preserved for appellate review. When the trial court asked if there were any exceptions to the charge as given, defense counsel responded "no." A party cannot acquiesce to a charge and then complain of it on appeal and, as there was no error in the charge or harm as a matter of law, there is no merit in this enumeration. Pressley v. State, 197 Ga.App. 270(4), 398 S.E.2d 268 (1990).
4. Appellant complains that the trial court erred in its recharge to the jury on the issue of driving under the influence of drugs by repeating one sentence at the request of the...
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Stevenson v. State
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