McMullen v. State
| Decision Date | 09 July 2012 |
| Docket Number | No. A12A0296.,A12A0296. |
| Citation | 12 FCDR 2446,316 Ga.App. 684,730 S.E.2d 151 |
| Parties | McMULLEN v. The STATE. |
| Court | Georgia Court of Appeals |
OPINION TEXT STARTS HERE
Milton F. Gardner Jr., Milledgeville, for Appellant.
Fredric Daniel Bright, DeLeigh Pearce Shelton, Reginald L. Bellury, for Appellee.
Following a jury trial, Tammi Lynn McMullen was convicted on two counts of homicide by vehicle in the first degree stemming from a motor-vehicle accident in which it was determined that McMullen was driving under the influence of a combination of drugs to the extent that it was less safe for her to do so. Among her ten enumerations of error, McMullen challenges the sufficiency of the evidence to support her conviction, argues that the trial court erred in admitting similar-transaction evidence, and further asserts that the trial court erred for various reasons in denying her motion to suppress blood evidence and in admitting testimony regarding the analysis of that evidence. Although we find that the evidence was sufficient to support her convictions, we are constrained to hold that the admission of similar-transaction evidence was erroneous. We therefore reverse McMullen's convictions. We note, however, that because the evidence of McMullen's guilt was otherwise sufficient, the State is authorized to retry her without violating the constitutional bar against Double Jeopardy.1
Viewed in the light most favorable to the jury's verdict,2 the evidence presented at trial shows that just before 11:11 a.m. on July 21, 2009, McMullen was driving northbound in the left-hand lane on a roadway which consisted of two northbound lanes, two southbound lanes, and a center-turn lane. Also in the left-hand northbound lane was a stationary truck which had been pulling a two-axle trailer loaded with pine straw. Sometime prior to McMullen's arrival, the trailer became unhitched from the truck, and the victims—the truck's driver and passenger—were attempting to reattach it. Although the flashing lights on the truck were activated, they were not visible from a distance due to the trailer and its contents. McMullen failed to see the truck in front of her and collided with the rear of the trailer. When she did so, the victims, who had been between the truck and the trailer at the time of the collision, were fatally injured.
A police officer who was in a nearby retail establishment heard the accident and went directly to the scene. He first saw McMullen, who was “shook up” but declined emergency-medical services. Upon discovering the victims and the severity of their injuries, however, the officer immediately called for emergency-response personnel.
The Georgia State Patrol responded to and assumed control of the accident investigation. The first trooper to arrive testified that he spoke to McMullen briefly and inquired into the cause of the accident. McMullen reported to him that she had looked down to set her cruise control and when she looked back up it was too late to avoid striking the trailer. She wanted to seek medical treatment for what was later determined to be a broken collar bone, however, and the trooper offered her an ambulance, which she declined. McMullen instead indicated that she was going to have her husband take her to the hospital, and the trooper allowed her to leave the scene without delay. As McMullen departed in her husband's vehicle, the police officer who had heard the accident and initially responded was instructed by his supervisor to follow the McMullens to the hospital.3
The trooper testified that McMullen was somewhat slow to respond to his questions, which he considered normal for a person involved in a serious accident, but he otherwise noticed no external signs of impairment. He was nonetheless “curious” as to why McMullen failed to see the stationary truck and trailer which, given the circumstances, he found “suspicious.” He therefore requested that a State Patrol sergeant meet her at the hospital to obtain additional information about the accident and to request a voluntary blood sample.
When the sergeant arrived at the hospital, McMullen was sitting in a wheelchair in the lobby of the emergency room waiting to be seen. The sergeant first inquired about the accident. McMullen stated that she could not remember much about what happened, but she did recall seeing the truck in front of her and, believing it to be moving forward, “tun[ing] it out,” then being unable to avoid the collision once she realized that it was not moving. The sergeant then asked McMullen if she would voluntarily consent to giving a blood sample, and she agreed to do so.4 McMullen's consent was witnessed by the police officer who had followed her to the hospital. Her blood was then drawn at 12:40 p.m., and afterwards the sergeant and the police officer left the hospital and had no additional contact with McMullen.
Following the blood draw, McMullen freely left the hospital without receiving treatment. Thereafter, a Georgia State Patrol senior trooper went to McMullen's home at approximately 3:00 p.m. to take a formal recorded statement regarding the accident. The senior trooper left McMullen's home without taking any further action. McMullen later returned to and was treated by the hospital staff for her injuries.
Some months later, law-enforcement officials learned the results of McMullen's blood tests, which indicated the presence of methamphetamine,5morphine,6 and phentermine.7 McMullen was subsequently arrested and charged with two counts of homicide by vehicle in the first degree for driving under the influence of drugs to the extent that it was less safe for her to do so 8 and one count of driving while under the influence of drugs such that she was a less safe driver.9
During the ensuing trial, the State presented evidence that the accident occurred on a clear day—free of rain, fog or other visual impairments—and that the immobile truck and trailer were visible from the “straightaway” road for approximately five to seven tenths of a mile prior to the point of impact. The only known eyewitness to the accident testified that she was headed southbound on the same road and observed as McMullen's vehicle approached and then struck the trailer without appearing to brake, slow down, or swerve to avoid the accident in any way. The witness further stated that there were no other vehicles on the road that would have impeded McMullen's view or prevented her from changing lanes prior to the collision.
The State also presented expert-witness testimony from a clinical neuropsychopharmacologist,who acknowledged that individuals respond differently to different drugs, but nonetheless discussed in general the anticipated effects on the average human body of the drugs discovered in McMullen's blood at the identified concentration levels.10 He opined that, although the drugs may to some extent offset each other in that the morphine may counter the agitation and excitement caused by the methamphetamine and, to a lesser extent, the phentermine, the combined effect of those drugs would likely negatively impact McMullen's alerting responses, heighten her level of distractibility, and “certainly increase [ ] the probability of impairment” while driving.
Finally, over McMullen's objection, the State admitted similar-transaction evidence of a 1998 conviction, in which McMullen pleaded guilty to possession of methamphetamine with the intent to distribute.
McMullen testified in her own defense and presented evidence that the source of the morphine in her blood was Avinza, a pain killer that her doctor prescribed for injuries stemming from a prior motor-vehicular accident. She further demonstrated that she was prescribed phentermine for weight control pursuant to a diet program in which she participated. She denied, however, using methamphetamine prior to the accident and suggested that the positive blood reading resulted from her use of a Vick's inhaler the week before.
McMullen also elicited testimony from several witnesses in support of her defense—including her employer (who had worked with her on the morning of the accident), three law-enforcement officials, and another witness who saw her immediately after the accident. Each of these witnesses testified that she exhibited no visible signs of impairment. She called another individual who testified that he had also been driving northbound on the roadway when he came upon the truck and had to swerve to avoid colliding with the trailer after failing to immediately recognize that it was stationary. And finally, McMullen presented an expert witness who called into question the techniques used by the drug laboratory and challenged the test results of McMullen's blood sample.
The jury convicted McMullen on all three counts charged by the State, although the trial court merged the DUI conviction for sentencing purposes. McMullen filed a motion for new trial, which the trial court denied. This appeal follows.
1. McMullen first argues that the evidence was insufficient to sustain her convictions. In support of her position, she points to the conflicts between the results of her blood test and the testimony of several witnesses who stated that she exhibited no physical signs of impairment before or after the time of the accident.
Significantly, however, on appeal from a criminal conviction, we do not engage in a reweighing of the evidence nor do we assess the credibility of the witnesses.11 Rather, the resolution of conflicts or inconsistencies is a function that falls squarely within the province of the jury.12 Instead, we determine only whether there is some competent evidence, even if contradicted, to support each fact necessary to prove the crimes charged. 13 As succinctly stated by the Supreme Court of the United States, the relevant question is whether, after viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime...
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