Holley v. State

• Decision Date: 09 March 2022
• Docket Number: A21A1380
• Citation: 363 Ga.App. 107,871 S.E.2d 13
• Parties: HOLLEY v. The STATE.
• Court: Georgia Court of Appeals

363 Ga.App. 107

871 S.E.2d 13

HOLLEY

v.The STATE.

A21A1380

Court of Appeals of Georgia.

March 9, 2022

Margaret Rentz Smith, for Appellant.

Gregory W. Edwards, Albany, Harold Ronald Moroz, for Appellee.

Phipps, Senior Appellate Judge.

A jury convicted Kmesha Latesh Holley of two counts of homicide by vehicle in the first degree and one count each of reckless driving, failure to exercise due care, and failure to stop at a stop sign.¹ Holley filed a motion for a new trial, which she subsequently amended. The trial court denied Holley's motion, and Holley appeals. She argues that (1) the evidence was insufficient to support her convictions, (2) the trial court erroneously admitted video-recorded evidence, (3) the court erred by failing to give a jury instruction on "accident," and (4) she received ineffective assistance of counsel. For the following reasons, we affirm Holley's convictions.

1. Holley first asserts that the evidence was insufficient to support her convictions. We disagree.

On appeal from a criminal conviction, the appellate court views the evidence in the light most favorable to the verdict and an appellant no longer enjoys the presumption of innocence. The appellate court determines whether the evidence is sufficient under the standard of Jackson v. Virginia , and does not weigh the evidence or determine witness credibility. Any conflicts or inconsistencies in the evidence are for the jury to resolve. As long as there is some competent evidence, even though contradicted, to support each fact necessary to make out the State's case, the reviewing court must uphold the jury's verdict.

Harris v. State , 360 Ga. App. 695, 697, 859 S.E.2d 587 (2021) (citations and punctuation omitted); see Jackson v. Virginia , 443 U. S. 307, 319 (III) (B), 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979).

Viewed in that light, the evidence shows that Holley was driving with her three children when they were involved in a collision with another vehicle driven by Steve Davis and occupied by his wife. Davis and Holley's nine-year-old daughter were killed in the collision. Holley, her other two children, and Davis's wife were severely injured.

The collision occurred at the intersection of Spring Flats and County Line Road in Dougherty County, and a map of the collision site was introduced as an exhibit during Holley's trial. Keith Butterworth, a Georgia State Patrol officer who specializes in collision reconstruction and was qualified as an expert at trial, testified that he had investigated more than a thousand accidents. During the accident reconstruction in this case, Butterworth walked through the scene, marked roadway evidence (including gouges, tire marks, and final resting place of the vehicles and victims), noted damage to vehicles and road structures (including a stop sign and guy wire pole), photographed the scene, took measurements at the scene, spoke with family members, inspected the vehicles at the scene and at the wrecker yard, and created a diagram of the evidence. Following his investigation, Butterworth concluded that Holley was driving on Spring Flats, which has stop signs at the intersection, and Davis was driving on County Line Road, which does not have a stop sign at the intersection. He further concluded based on his investigation that the front of Holley's car struck the driver's side of Davis's vehicle. Police and paramedics were dispatched to the scene at approximately 4:30 p.m., at which time it was daylight, and there were no weather conditions or anything else that would have obstructed one's vision at the scene.

Daniel Joiner, another Georgia State Patrol officer also specializing in collision reconstruction and qualified as an expert at trial, testified that he used a crash data retrieval program to recover black box data from both vehicles involved in the collision. Joiner, who had worked on approximately 1,500 crashes, was certified to analyze the data and, at the time of the trial, had analyzed data from 30-40 black boxes since receiving specialized certification in black box data recovery. Vehicle black box data can include information such as when or if brakes were applied, whether cruise control was on, the speed of the vehicle, and any vehicle acceleration. According to Joiner, his data interpretation revealed that both vehicles were traveling in excess of 60 miles per hour immediately prior to the collision. Joiner visited the site and reviewed the accident reconstruction diagram, and he opined based on his investigation that Davis's truck had the right of way and that Holley failed to stop her vehicle at the stop sign. In addition, an officer who responded to the scene testified that based on his observations and evidence he recorded at the crash site, he issued citations to Holley.

Chanda Boyd, the aunt of two of Holley's children, testified that after the collision, her mother showed her a video posted on Holley's Facebook account. Boyd used her cell phone to record the Facebook video from her mother's phone. The recording made by Boyd was admitted by the trial court and played for the jury. The seven-and-a-half-minute video memorialized the events immediately prior to, during, and following the collision. During the video, Holley and her three children are seen in the car while Holley is driving and presumably holding the phone. The phone captures video of Holley from both sides. The group wishes everyone a happy Thanksgiving as the phone pans the car, and Holley twice comments that the group is "on the road." The group continues talking while music is playing, and the phone continues to pan the car, then a scream is heard, and the phone begins filming the interior roof of the car while the occupants are silent. The phone twice records someone asking about injuries. Later, one of the boys begins crying and asking for his mom, and finally someone leans in the car and asks if everyone is okay before the video stops.

Based on these facts, the jury found Holley guilty of two counts of homicide by vehicle in the first degree and one count each of reckless driving, failure to exercise due care, and failure to stop at a stop sign. Holley argues that the State "failed to prove beyond a reasonable doubt that [she] drove her vehicle in reckless disregard for the safety of persons or property, failing to yield the right of way and causing the deaths of Davis or [her daughter]." According to Holley, Butterworth offered "purely conclusory" testimony regarding her fault, and no evidence supported the expert's opinion. This assertion, however, fails to recognize Butterworth's testimony that he had investigated more than a thousand accidents and, during the course of the accident reconstruction in this case, he (i) personally inspected the vehicles, (ii) observed and measured gouges and tire marks in the roadway, as well as the placement of the vehicles and victims, (iii) noted damage to a stop sign and guy wire pole, and (iv) requested data analysis of the vehicles’ black boxes, which revealed that both vehicles were traveling in excess of 60 miles per hour at the time of the collision. This evidence was sufficient to support Butterworth's conclusion that Holley was driving on Spring Flats and failed to stop her vehicle at the designated stop sign, striking the driver's side of Davis's vehicle. Accordingly, contrary to Holley's assertion, the evidence was sufficient for a rational trier of fact to find that Holley failed to stop at a stop sign, thus failing to yield the right of way. See OCGA § 40-6-72 (failure to stop or yield).

Furthermore, all of the charges brought against Holley were based on Holley's operation of her motor vehicle while failing to yield the right of way and using a mobile device to the point that she was distracted. Not only did the evidence detailed above authorize the jury to find Holley guilty of the charged offenses based on her failure to yield the right of way, but the video recording introduced into evidence and played for the jury permitted the jury to infer that Holley failed to exercise due care and recklessly disregarded the safety of her passengers and others on the road by using a mobile device and not paying attention to the road in front of her while traveling in excess of 60 miles per hour. See OCGA §§ 40-6-241 (failure to exercise due care), 40-6-390 (reckless driving), 40-6-393 (homicide by vehicle). Accordingly, her convictions are supported by the evidence, and the trial court did not err in denying her motion for a new trial on this ground.

2. Holley next asserts that the trial court erred in admitting, over her objection, the Facebook video recorded by Boyd and purportedly posted by Holley. According to Holley, the video shown to the jury was "a video (on Boyd's phone) ... of a video (on Boyd's mother's phone) ... of a video (on a Facebook page)," and it should have been excluded because the State failed to authenticate it.² This enumeration of error lacks merit.

"Under Georgia's Evidence Code, authentication of evidence may be achieved through any of a variety of means so long as there is evidence sufficient to support a finding that the matter in question is what its proponent claims." Intemann v. State , 358 Ga. App. 488, 494 (1), 855 S.E.2d 666 (2021) (citation and punctuation omitted). See OCGA § 24-9-901 (a), (b). Authentication may be achieved through "[t]estimony of a witness with knowledge that a matter is what it is claimed to be." OCGA § 24-9-901 (b) (1). "Documents from electronic sources such as the printouts from a website like Facebook are subject to the same rules of authentication as other more traditional documentary evidence and may be authenticated through circumstantial evidence." Hawkins v. State , 304 Ga. 299, 304 (4) (a), 818 S.E.2d 513 (2018) (citation and punctuation omitted). "Once the party seeking to authenticate evidence presents a prima facie case that the evidence is what it purports to be, the evidence is properly admitted, leaving...