Kirkland v. State

• Decision Date: 28 October 1992
• Docket Number: No. A92A1622,A92A1622
• Parties: KIRKLAND v. The STATE.
• Court: Georgia Court of Appeals

Page 638

424 S.E.2d 638

206 Ga.App. 27

KIRKLAND v. The STATE.

No. A92A1622.

Court of Appeals of Georgia.

Oct. 28, 1992.

William T. Hankins III, Statesboro, for appellant.

David McDade, Dist. Atty., Aaron S. Weinstein, William H. McClain, Asst. Dist. Attys., for appellee.

CARLEY, Presiding Judge.

After a jury trial, appellant was found guilty of possession of a controlled substance, driving after having been declared an habitual violator, driving under the influence, driving without insurance, and two counts of causing serious injury by vehicle. He appeals from the judgments of conviction and sentences entered by the trial court on the jury's guilty verdicts.

1. Appellant moved to dismiss the indictment on the ground that it "was based solely on hearsay evidence...." This motion to dismiss the indictment was properly denied. Felker v. State, 252 Ga. 351, 366 (2a), 314 S.E.2d 621 (1984). "It is not contended that there was no evidence introduced before the grand jury.... It has never been the practice in this State to go into an investigation to test the sufficiency of the evidence before the grand jury." Powers v. State, 172 Ga. 1 (3), 157 S.E. 195 (1931). "A motion to quash an indictment because of insufficient evidence will not be entertained by the court, the question being one of fact for the [grand] jury." Cox v. State, 3 Ga.App. 609, 610 (3), 60 S.E. 283 (1908).

2. In one of the two counts charging appellant with causing serious injury by vehicle, it was alleged that appellant's act of driving under the influence had rendered the victim's left foot useless. In the other count, it was alleged that appellant's act of driving under the influence had rendered useless the right foot of the same victim.

Although appellant could be prosecuted on both of these counts, he could not be convicted and sentenced on both. The single instance of appellant's conduct in driving under the influence was "used up" in proving one of the counts and could not be used again as the predicate for a conviction and sentence on the other. See Mitchell v. State, 187 Ga.App. 40, 44 (4), 369 S.E.2d 487 (1988); Davis v. State, 186 Ga.App. 491, 492 (2), 367 S.E.2d 884 (1988). Compare Knight v. State, 190 Ga.App. 87, 88 (2), 378 S.E.2d 373 (1989); Talley v. State, 164 Ga.App. 150, 153 (7), 296 S.E.2d 173 (1982), aff'd 251 Ga. 42, 302 S.E.2d 355 (1983). "There being error, this case must be remanded to the trial court for expunction from the record of the conviction and sentence on either [the] [c]ount [alleging the victim's left foot had been rendered useless by appellant's conduct in driving under the influence] or [the] [c]ount [alleging the victim's right foot had been rendered useless by that same conduct]." Davis v. State, supra at 493 (2), 367 S.E.2d 884.

3. In one of his enumerations of error, appellant urges that "[a] substantive hearing on the facts of each incident was required before similar transaction evidence could be admitted." However, the record shows that a hearing was held in the instant case. At that hearing, counsel for the State informed the court of the existence of appellant's prior convictions in neighboring counties for driving after having been declared an habitual violator and for driving under the influence. See Houston v. State, 187 Ga.App. 335, 337 (2), 370 S.E.2d 178 (1988); Hall v. State, 181 Ga.App. 92, 93 (1c), 351 S.E.2d 236 (1986).

At trial, appellant did not object to the admission of the evidence on the ground that the State had failed to demonstrate sufficient similarity. Hunter v. State, 202 Ga.App. 195, 196 (3), 413 S.E.2d 526 (1991). Compare Stephens v. State, 261 Ga. 467 (6), 405 S.E.2d 483 (1991). Moreover, it appears that, standing alone, the face of the prior indictments would be sufficient to demonstrate similarity to those crimes for which appellant was being tried. See Moore v. State, 202 Ga.App. 476, 479 (2b), 414 S.E.2d 705 (1992); Banks v. State, 201 Ga.App. 266, 267 (1), 410 S.E.2d 818 (1991). Unlike assault or robbery or other crimes against the person or property of a victim and which can be committed under varying factual circumstances, the crimes of driving after having been declared an habitual violator and driving under the influence are essentially committed under the same factual circumstances. The type of vehicle driven or the degree or source of intoxication may vary, but it is the simple act of driving while having the status of an habitual violator or while under the influence that establishes the commission of those crimes. A prior act of driving while having that status or while in that condition would, regardless of any slight variance of circumstances, be relevant to prove bent of mind or course of conduct. See Blane v. State, 195 Ga.App. 504 (1), 393 S.E.2d 759 (1990); Simon v. State, 182 Ga.App. 210 (1), 355 S.E.2d 120 (1987).

4. Appellant enumerates as error the trial court's failure to sustain objections to several questions propounded by counsel for the State to prospective jurors on voir dire.

" 'The single purpose for voir dire is the ascertainment of the impartiality of jurors, their ability to treat the cause on the merits with objectivity and freedom from bias and prior inclination. The control of the pursuit of such determination is within the sound legal discretion of the trial court, and only in the event of manifest abuse will it be upset upon review.' [Cit.]" Frazier v. State, 138 Ga.App. 640, 643 (2c), 227 S.E.2d 284 (1976). The questions propounded in the instant case were calculated to determine whether the prospective jurors might harbor some prejudice against the State, and those questions could in no way have harmed appellant. See Griffeth v. State, 154 Ga.App. 643 (1), 269 S.E.2d 501 (1980).

5. The trial court did not err in allowing the investigating officer to remain in the courtroom after the rule of sequestration had been invoked. Edwards v. State, 171 Ga.App. 264, 265, 319 S.E.2d 101 (1984). Likewise, the trial court did not err in allowing the victim, who had been sequestered, to remain in the courtroom after she had given her testimony. Watts v. State, 200 Ga.App. 54, 56 (6), 406 S.E.2d 562 (1991).

6. Over appellant's objection, the trial court admitted photographs taken of the victim while she was hospitalized.

The seriousness of the victim's injuries was a relevant inquiry. There is no merit in appellant's contention that the photographs were inadmissible as being merely cumulative of the oral testimony regarding the extent of the victim's injuries. "[D]emonstrative evidence in the form of [photographs] can scarcely be deemed to be only cumulative of [witnesses'] merely oral testimony. [Cit.]" Brinson v. State, 201 Ga.App. 80, 81 (1), 410 S.E.2d 50 (1991).

The photographs do not evince any "further mutilation" of the victim, but merely the non-intrusive medical response, such as the placement of casts and bandages, to such mutilation as had been inflicted by appellant. Compare Heard v. State, 257 Ga. 1, 2 (2a), 354 S.E.2d 115 (1987). In any event, there is no contention that the photographs could easily have been cropped to mask all but the injuries sustained in the collision, and appellant did not so move. Compare Heard v. State, supra at (2a). Instead, appellant moved to exclude the photographs in their entirety. There was no error in admitting the photographs over this broad objection. "Upon the tender of demonstrative or documentary evidence, ' "part of which is admissible and part inadmissible, and the objection is to the evidence as a whole, it is not error to admit it all." (Cits.)' [Cit.] Accordingly, even assuming that certain items in the photographs may not have been shown to be directly relevant to appellant's instant prosecution, it was not error to fail to sustain the objection to the admission of the photographs in their entirety." Castellon v. State, 200 Ga.App. 478, 479 (1), 408 S.E.2d 493 (1991).

7. The trial court did not err in allowing a physician to testify that, in his opinion, the victim faced the increased likelihood of developing arthritis as the result of the trauma suffered in the collision. Central Truckaway System v. Harrigan, 79 Ga.App. 117, 126 (5), 53 S.E.2d 186 (1949).

8. At the time of the collision, appellant was driving an automobile which had been leased to his mother. At trial, the trial court correctly overruled appellant's objection to testimony by the lessor regarding the terms and conditions upon which the automobile had been leased to appellant's mother. This testimony was relevant to establish whether appellant was an authorized driver of the leased automobile so as to have insurance coverage under the lessor's policy. Whether appellant had insurance coverage under the lessor's policy was obviously relevant to that count of the indictment charging him with having no insurance. "Admissibility of evidence is a matter which rests largely within the sound discretion of the trial court, and if an item of evidence has a tendency to help establish a fact in issue, that is sufficient to make it relevant and admissible. [Cit.] Evidence of doubtful relevancy or competency should be admitted and its weight left to the jurors. [Cit.]" Lewis v. State, 158 Ga.App. 586, 587 (1), 281 S.E.2d 331 (1981).

9. Over appellant's hearsay objection, a witness was properly allowed to testify as to statements made by the victim's five-year-old child at the scene immediately after the collision. The words spoken by the child were admissible as part of the res gestae and were not inadmissible simply because of his young age. Grant v. State, 124 Ga. 757, 759 (4), 53 S.E. 334 (1906).

10. During its direct examination of a nurse, the State sought admission of a record which had been made by the nurse herself. Appellant objected to the admission of the record, on the ground "that the best and highest evidence would be [the nurse's] testimony on this subject.... [S]he can testify to the record...