King v. State, No. A03A0422
| Decision Date | 27 June 2003 |
| Docket Number | No. A03A0422, No. A03A0423. |
| Citation | 262 Ga. App. 37,584 S.E.2d 652 |
| Parties | KING v. The STATE. Massey v. The State. |
| Court | Georgia Court of Appeals |
OPINION TEXT STARTS HERE
Browning & Tanksley, George T. Smith, Dupree, Poole & King, Hylton B. Dupree, Jr., Patrick N. Millsaps, Marietta, for appellant (case no. A03A0422).
Debra H. Berns, Nancy I. Jordan, Marietta, for appellants (case no. A03A0423).
Patrick N. Head, Dist. Atty., Patricia G. Hull, Dana J. Norman, Timothy B. Lumpkin, Amelia G. Pray, Asst. Dist. Attys., for appellee. JOHNSON, Presiding Judge.
After a jury trial, Jacob King was found guilty of first degree vehicular homicide, reckless driving, serious injury by vehicle, and racing. His friend and co-defendant, Michael Massey, was found guilty of first degree vehicular homicide, reckless driving, serious injury by vehicle, racing, and driving under the influence of marijuana to the extent he was a less safe driver. The jury found Massey not guilty of possession of marijuana. The trial court entered judgments of conviction on the verdicts. In Case No. A03A0422, King appeals from the judgments of conviction entered against him. In Case No. A03A0423, Massey appeals from the judgments of conviction entered against him.
Viewed in a light most favorable to the verdict, the evidence shows that King and Massey were each driving their own pickup trucks on Barrett Parkway in Cobb County at 11:00 p.m. They were driving side by side, passing each other, weaving in and out of traffic, and speeding. King entered a curve in the roadway, with Massey driving even with or just behind him. King lost control of his truck and struck a tree, and the truck reentered the roadway in the path of oncoming traffic. Edward Holcombe saw King's truck coming toward his car in a spinning motion. The ensuing collision left Holcombe's daughter dead and Holcombe injured. Massey's truck did not make contact with either of the vehicles.
1. King's argument that the evidence was insufficient to support his conviction for serious injury by vehicle is without merit. Although there was no medical testimony as to Holcombe's injuries, Holcombe testified that after the collision he was trapped and had to be cut out of the car, that he suffered a concussion and had to be transported by ambulance to the hospital, that he had to get stitches in his head, that he injured his hand and wore a brace on it for several weeks, that he had to have knee surgery to repair torn cartilage, and that his wrist and thumb still did not function properly more than two years after the collision. Taking the evidence in the light most favorable to the jury's verdict of guilty, we conclude that there was sufficient evidence from which a rational trier of fact could have found King guilty of causing serious injury by vehicle.1
2. King contends the trial court gave an incomplete jury instruction on the crime of speeding. Specifically, he states that the trial court committed reversible error by failing to charge the jury with OCGA § 40-6-181(b), which sets forth the maximum speed limits for certain types of locations.
The trial court included in its charge an instruction on OCGA § 40-6-180, which sets out the prohibition against driving too fast for conditions. As part of that instruction, the court listed several examples, such as traveling at an unreasonable or imprudent speed when approaching and going around a curve. The court also charged the jury that no one is to exceed the maximum posted speed limits.
Citing Bilbrey v. State,2 King argues that these instructions were not sufficient to instruct the jury as to what specific act was unlawful. He urges that when OCGA § 40-6-180 is charged to the jury, so should OCGA § 40-6-181(b), which specifies the maximum speed limits for particular types of areas. King's argument presents no basis for reversal in this case.
King was charged with reckless driving by repeatedly changing lanes and exceeding the speed limit, not with driving at an unreasonable rate of speed given then-existing conditions.3 Although it is undisputed that the collision occurred just after King's truck entered a curve, the evidence overwhelmingly involved King's and Massey's acts of exceeding the speed limit and changing lanes just before the collision occurred. In fact, the testimony of various witnesses shows that King was driving between 53 and 90 mph in a 45-mph zone, and that he was still speeding when he approached the curve.
Given the evidence, a charge that a driver must drive at a speed which is lower than the maximum speed limit when a special hazard requires a lower speed was not warranted.4 A trial judge does not err in excluding a charge that is not adequately adjusted to the case or reasonably raised by the evidence.5 Inasmuch as a charge on OCGA § 40-6-180 was not required by the evidence, a charge on OCGA § 40-6-181(b) was not required to be given in conjunction with it. We note that the trial court properly charged the jury that no one shall drive in excess of the maximum posted speed limit. The court's charge on speeding was sufficient.
3. King contends the trial court erred in denying his motion to sever parties when drug charges filed against Massey prejudiced his case and severance would have allowed Massey to give testimony which could have exculpated King of the charges brought against him.
Whether to sever parties is a matter for the trial court's sound discretion and will not be set aside absent a showing of clear abuse.6 In exercising that discretion, a court is to consider whether the number of defendants will create confusion, whether there is a danger that evidence admissible against one defendant will be considered against the other despite the court's instruction, and whether the defendants' defenses are antagonistic to each other.7 Here, the trial court did not abuse its discretion in finding these criteria absent. That there were only two defendants makes it unlikely that the jury was confused. The court instructed the jurors that they were to determine the guilt or innocence of each defendant separately. The defenses were not antagonistic, inasmuch as both men claimed their driving activities were not the proximate cause of the fatal collision.
The fact that Massey faced two drug charges did not require severance, as the additional offenses arose from the same transaction.8 Since King and Massey were being tried as parties to several jointly charged offenses, and since there is overwhelming proof that the men were parties to the crimes, joinder was authorized and severance was not mandatory.9 We note that King has not shown how Massey's testimony could have exculpated him of the charges. There was no abuse of discretion.
4. According to King, the trial court erred by failing to properly charge the jury on causation or proximate cause. He complains that the court should have charged the jury that it was obligated to acquit him if he did not cause the victim's death, and that a definition of proximate cause should have been given because there was evidence that Holcombe was speeding. Based on the evidence, the instructions given on causation were sufficient.
Tracking the language of the vehicular homicide statute,10 the trial court charged the jury that a person commits homicide by vehicle when, without malice aforethought, that person causes the death of another, that causation is a material element of the offense, and that the state is required to prove causation beyond a reasonable doubt. The court also instructed the jury on misfortune and accident. Taken as a whole, there was no error.11
Our holding in Baysinger v. State12 does not require a different result. Baysinger did not involve the failure to give a jury charge. Even more importantly, we stated in that case that, "[u]nlike the civil context, in the criminal context it simply is not relevant that the victim was negligent unless the defendant's conduct did not substantially contribute to the cause of the injury."13 There is no question that King's conduct substantially contributed to the collision. No further instruction was required on causation.
5. King and Massey contend the trial court erred in failing to grant and rule upon their demurrers to the first two indictments, in denying their plea in bar to the third indictment, and in consenting to a nolle prosequi on the first two indictments.
Contrary to King's and Massey's position, OCGA § 17-7-53.1, which bars prosecuting a defendant under a third indictment for the same offense, does not work to bar future prosecutions based upon the state's entry of two nolle prosequi orders. This is because the earlier indictments were not quashed as a result of action by the defense or the court on its own motion.14
6. Massey contends the evidence was insufficient to support any of his convictions. He urges that, as to the reckless driving charge (which formed the basis for the vehicular homicide charge), there was insufficient evidence that his driving was the cause of the death of Holcombe's daughter, since he had slowed down by the time King's truck collided with Holcombe's car. He adds that he and King had only changed lanes two to three times and had kept several car lengths between them and other cars. Regarding the serious injury by vehicle charge, he maintains that the state did not prove Holcombe's injuries were serious. As for racing, he urges that there was evidence that he was only trying to catch up with, not pass, King's truck. And as for the driving under the influence of marijuana charge, he says no witnesses testified that he appeared to be under the influence close to the time of the accident, and there was no evidence that the amount of marijuana he ingested rendered him a less safe driver. The evidence was sufficient.
Eyewitnesses testified that they saw King and Massey driving recklessly all the way to the scene of the collision, that...
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