Hood v. State

• Decision Date: 28 November 1989
• Docket Number: No. A89A1098,A89A1098
• Citation: Hood v. State, 389 S.E.2d 264, 193 Ga.App. 701 (Ga. App. 1989)
• Parties: HOOD v. The STATE.
• Court: Georgia Court of Appeals

Page 264

389 S.E.2d 264

193 Ga.App. 701

HOOD v.The STATE.

No. A89A1098.

Court of Appeals of Georgia.

Nov. 28, 1989.

Hyatt Legal Services, Steven Harrell, for appellant.

Ralph T. Bowden, Sol., Judith C. Emken, N. Jackson Cotney, Jr., Asst. Sols., for appellee.

BEASLEY, Judge.

Hood appeals his conviction for vehicular homicide in the second degree (OCGA § 40-6-393(b)), for failure to drive in accordance with OCGA § 40-6-48(1).

The victim's station wagon ran out of gas at the I-85 and I-285 junction.He parked it in a neutral zone, a triangle defined by solid white lines at the point where the entrance ramp from I-285 merged with I-85.He was standing at the left rear of his station wagon, with emergency lights flashing, when Hood, driving a pickup, came off the I-285 ramp attempting to merge onto I-85.He struck the left rear of the station wagon with the right front of his truck, crushing the victim between them.The victim then fell and was run over by a Mustang following Hood.The Mustang did not stop, travelling over 400 feet before the victim's body caused the car to stop.

Hood testified that a van in front of him swerved and revealed the station wagon, which Hood said was partially in the lane, and the victim.Hood said he locked his brakes, then regained control and attempted to go by the station wagon to the left, through the neutral zone.He said he may have clipped the victim but when he last saw him, he was running.

Eason, a former DeKalb police officer and at trial time a private accident reconstruction specialist, gave his opinion that the victim was compressed between the two vehicles and was horizontal when the Mustang ran over him.Photos taken at the scene reveal blood and body tissue on the hood and windshield of the truck and extensive damage to its right front quarter-panel.Shredded clothing from the victim was embedded in the crushed left quarter-panel of the station wagon.

1.Defendant moved for directed verdict at the close of the State's case, based on the failure of the State to show that defendant"caused the death."At the close of all evidence, defendant renewed his motion, contending that he could not be held "responsible for the superseding intervening acts of third parties in the operation of his motor vehicle."

A directed verdict is appropriate only where there is no evidence to support a verdict to the contrary.OCGA § 17-9-1;Conger v. State, 250 Ga. 867, 870, 301 S.E.2d 878(1983);Bradley v. State, 180 Ga.App. 386, 349 S.E.2d 263(1986).

Because the State did not timely serve defendant with a copy of the medical examiner's report, the doctor was unable to testify from his specific knowledge of the case and instead answered only hypothetical questions, some of which were premised on the photos of the wrecked vehicles.The doctor's opinion was that it was "quite likely that this person within reasonable probability sustained injuries that could have resulted in death."He was unable to say for certain that the injuries definitely did result in death.

This did not, however, mean that the question should be taken from the jury.Causation is a required element of vehicular homicide.It must be shown that the defendant's illegal act, here crossing the neutral zone when it was unsafe to do so, was the cause of death.Davis v. State, 187 Ga.App. 517, 520(3), 370 S.E.2d 779(1988);Collins v. State, 172 Ga.App. 100, 102(1), 321 S.E.2d 823(1984).

The doctor's answers to the hypothetical, the photographs, and Eason's opinion as to how the accident occurred formed a sufficient basis upon which the jury could find, beyond a reasonable doubt, that defendant's act caused the death.OCGA §§ 24-4-5; 16-1-5;Davis, supra187 Ga.App. at 521, 370 S.E.2d 779.The jury was not compelled by the evidence to accept defendant's theory that the victim was still alive and not dying after he hit him and was killed instead by the Mustang.Denial of the directed verdict was not error.Davis, supra at 522, 370 S.E.2d 779.

Defendant's argument that the fact that the Mustang hit the decedent required the trial court to hold as a matter of law that an intervening superseding criminal act was the proximate cause of the death is not supportable.Proximate cause has been used in vehicular homicide cases for many years.Davis, supra at 521, 370 S.E.2d 779;Johnson v. State, 170 Ga.App. 433, 434(1), 317 S.E.2d 213(1984).The concept of independent intervening causes which will break the chain of causation is one of the yardsticks used to measure proximate cause.Western Stone, etc., Corp. v. Jones, 180 Ga.App. 79, 80, 348 S.E.2d 478(1986);Brandvain v. Ridgeview Institute, 188 Ga.App. 106, 115(2b), 372 S.E.2d 265(1988), aff'd259 Ga. 376, 382 S.E.2d 597(1989).In cases of conflicting evidence, this question is one for the jury.Western, supra;Brandvain, supra.

2.Defendant contends that the court erred in allowing Eason to give his opinion concerning the "ultimate issue" in the trial, the cause of death.

Eason was a former police officer who had been trained in accident analysis and reconstruction and had worked numerous accidents both as patrolman and detective.He gave his background, experience and qualifications in this area and was tendered to the court as an expert.The court declined to rule, reserving such until a challenge was made.Thereafter, Eason was asked if he had an "opinion or final conclusion as to what was the cause of the accident."He gave his factual findings concerning the chronology of the accident based on his examination of the scene and vehicles and concluded that defendant crossed the neutral zone, "collided with the stopped [station wagon] and death resulted."

At this point defendant objected, on the basis that, as to the testimony concerning the death, "I don't think that is a conclusion he is qualified to draw."The court overruled that objection.

During cross-examination, Eason was asked if he knew the victim was dead when he was struck by the Mustang.He responded that he had an opinion based on his experience, but that he had no personal knowledge.On redirect, ...