Klaub v. State
| Decision Date | 12 April 2002 |
| Docket Number | No. A01A2520.,A01A2520. |
| Citation | 564 S.E.2d 471,255 Ga. App. 40 |
| Parties | KLAUB v. The STATE. |
| Court | Georgia Court of Appeals |
OPINION TEXT STARTS HERE
Anthony C. Procacci, John R. Mayer, Atlanta, for appellant.
Paul L. Howard, Jr., Dist. Atty., Rhonda B. Rusnak, Amira S. AbuBakr, Asst. Dist. Attys., for appellee.
Ronald Klaub was convicted by a jury of two counts of vehicular homicide, hit and run, and driving with a suspended license. He appeals his convictions, raising several arguments, including that the trial court erred by (1) failing to grant a directed verdict of acquittal as to the charge of homicide by vehicle through the commission of reckless driving; (2) failing to grant a directed verdict of acquittal as to the charge of homicide by vehicle through the violation of OCGA § 40-6-270, the hit and run statute; and (3) failing to strike a juror for cause. We reverse Klaub's conviction for vehicular homicide through the commission of reckless driving. We affirm the remainder of the judgment. In light of our holding in this case, we remand this case to the trial court for resentencing consistent with this opinion.
Viewed in the light most favorable to the verdict, the evidence presented at trial showed that on the night of December 9, 1998, between 7:00 and 8:00 p.m., Klaub told his wife, Charlene Ward, that he was going out and taking her car, a 1986 Mercury Topaz. When he returned around 11:00 p.m., Klaub informed Ward that he had hit a dog and damaged her car. Ward went to the garage and saw that the headlight had been broken and that the windshield was cracked.
On the morning of December 10, 1998, the body of Joeann Edwards Swift was found lying facedown in some leaves just off the roadway near the intersection of Moreland Drive and Hazelrig Drive. The night before, she had walked to a pay phone to call her son in New York; that conversation was the last she had with anyone. The victim's body was surrounded by automobile pieces; some of these pieces, found in the victim's clothing and examined by the crime lab, were identified as coming from Klaub's wife's car. On the basis of an autopsy, it was surmised that the victim probably died between 12:45 a.m. and 6:45 a.m. on December 10, though the time of death could have been earlier. The victim's injuries were typical of those of a person who has hit a windshield. The cause of death was injury to the brain, and because there was very little swelling of the brain, it was estimated that the victim had died within minutes of being struck. There were no witnesses to the accident.
On December 20, 1998, Officer Britman of the Atlanta Police Department met with a black female whom he had never met. The woman, who would not give her real name and who was accompanied by a co-worker from the Home Depot across the street from the Zone 2 precinct office, told Britman that she knew who had driven the car that struck the victim on Moreland Drive, that the driver's name was Ron, and that the car had front-end damage and a broken windshield. She said that she had gotten her information from Ron's wife, Cathy, a co-worker with whom she had been drinking and smoking marijuana in a shed behind Ron's house the day before. Based on the informant's description, Britman located the house; he did a computer check on the address but found that the house belonged to a Florence Lange.
On December 23, 1998, Britman received a call from Officer Stephens of the Clayton County Police. Stephens told him that he had spoken to one of his informants, a black female, who had told him that a man named Ronald Klaub had been the driver of the vehicle which killed the victim. Britman and Stephens, along with some other officers, went to Klaub's house, where they introduced themselves to Klaub's mother, Mrs. Lange, and asked for Klaub. Informed that Klaub was not at home, the officers were then invited in by Lange and told that they could search the house. In the garage they found a 1986 Mercury Topaz with a cracked windshield and broken headlight. When asked about the damage to the car, Lange said that Klaub had told her that he had hit a dog and then had added, "That's all you need to know." He also told her that no one was to touch the car.
While Clayton County police officers remained at Klaub's house, Atlanta officers obtained a warrant. When Klaub returned, he encountered Stephens in front of his house. Klaub was read his Miranda rights but waived those rights and gave a statement to Stephens. Klaub said that he had loaned his wife's car to a woman named Cathy on the night of December 9, 1998. When Cathy returned the car, she was in tears; she explained that she had hit a dog and done damage to the car. Klaub stated further that because he had not wanted his wife to find out that he had loaned her car to a female friend, he had told her that he had been the one who had been driving, hit the dog, and damaged the car. Cathy Puckett testified that she had never driven Klaub's car and that, on the night of the incident, she had been home with her family. She admitted that she knew a black female who worked at Home Depot but said that she had not spoken with her during the period of time surrounding the incident.
1. In his first enumeration of error, Klaub maintains that the trial court erred in failing to direct a verdict of acquittal as to the charge of vehicular homicide through the commission of reckless driving.
The standard of review for the denial of a motion for directed verdict of acquittal is the same as that for reviewing the sufficiency of the evidence to support a conviction. Under that standard we view the evidence in the light most favorable to the jury's verdict and determine whether any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt. Moreover, an appellate court does not weigh the evidence or determine witness credibility but only determines whether the evidence is sufficient under the standard of Jackson v. Virginia, 443 U.S. 307, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979).
(Footnote omitted.) Washington v. State, 251 Ga.App. 206(1), 553 S.E.2d 855 (2001).
OCGA § 40-6-390(a) provides that "Any person who drives any vehicle in reckless disregard for the safety of persons or property commits the offense of reckless driving." Klaub argues that the record in this case is devoid of any evidence as to the manner in which the car was driven and that, in the absence of such evidence, the State has failed to prove that the car was driven in reckless disregard for the safety of persons or property. We agree.
It is clear that the offense of reckless driving may be committed in a variety of ways; thus, in order to establish a violation of OCGA § 40-6-390, the State needed only to present evidence showing that Klaub drove his car in a manner exhibiting reckless disregard for the safety of persons or property. In its brief, the State argues that there was sufficient evidence produced at trial from which the jury could conclude that Klaub drove in a reckless manner. This argument ignores the fact that the trial court granted Klaub a directed verdict as to Count 3 of the indictment, which charged Klaub with unlawfully driving "a motor vehicle in reckless disregard for the safety of the deceased, Joeann Edwards Swift, for said accused did drive his vehicle off of the roadway and into Joeann Edwards Swift." (Emphasis supplied.)
As a basis for directing a verdict in favor of Klaub on Count 3, the trial court observed:
[T]he only evidence there of committing an offense in that manner, of driving off the roadway, was contained in one photograph which had been admitted into evidence, which was State's Exhibit 4, which shows a tire track or tire tracks appearing to come back into the roadway after being somewhat on the shoulder and going through some kind of muddy area and then tracking back up onto the asphalt and in an area that leads directly to other items that were marked by the police, that is, either items of clothing or personal effects or car parts. But there is no testimony about that at all, and there is no evidence at all to indicate that this actually was the car in question.... [T]here were no tire tread comparisons or an analysis or anything like that. This could have been a car that had pulled off, parked on the shoulder and pulled off, and at sometime either that morning or in the middle of the night or sometime earlier or later—I mean, there's just no indication at all.
On the basis of this reasoning, the trial court concluded that there was insufficient evidence to sustain a finding of reckless driving by driving off the roadway and striking the victim and directed a verdict for Klaub on Count 3. Our examination of the trial transcript convinces us that the trial judge did not err in granting Klaub a directed verdict on this basis.
We recognize that reckless driving may be established by proving that a defendant was driving at an excessive rate of speed given the posted speed limit and the driving conditions existing at the time. See, e.g., Carroll v. State, 222 Ga.App. 560, 561, 474 S.E.2d 737 (1996). In this case, the forensic pathologist testified that the minimum speed of Klaub's vehicle when it struck the victim was 40 mph. Driving at this speed could amount to reckless driving under certain conditions, but the State presented no competent evidence of the driving conditions that night or of the posted speed limit. Accordingly, there is no evidence that Klaub committed reckless driving by driving at an excessive speed. Thomas v. Baxter, 234 Ga.App. 663, 667, 507 S.E.2d 766 (1998).
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