Merritt v. State

• Decision Date: 26 October 2007
• Docket Number: No. A07A0947.,A07A0947.
• Citation: Merritt v. State, 653 S.E.2d 368, 288 Ga.App. 89 (Ga. App. 2007)
• Parties: MERRITT v. The STATE.
• Court: Georgia Court of Appeals

288 Ga. App. 89

653 S.E.2d 368

MERRITT v.The STATE.

No. A07A0947.

Court of Appeals of Georgia.

October 26, 2007.

Nicki Noel Vaughan, H. Bradford Morris Jr., Gainesville, Brett Michael Willis, for Appellant.

Lee Darragh, District Attorney, Gregory Edward Radics, Assistant District Attorney, for Appellee.

MIKELL, Judge.

On June 3, 2002, at approximately 6:30 p.m., William Richard Merritt, Jr., was speeding and weaving across lanes and a grassy median as he was driving southbound on Interstate 985 in Hall County when he struck an SUV driven by Bonnie Reynolds.The violence of the collision caused Mrs. Reynolds's vehicle to flip over multiple times, ejecting her 14-year-old son, Matthew, onto the pavement, where he sustained severe brain injuries.Matthew died the next day.According to eyewitnesses at the scene, and as Merritt himself testified, he exited his vehicle after the wreck, walked toward Matthew, who was unresponsive and bleeding profusely, and promptly turned and fled.As he was walking quickly away from the scene, he passed an eyewitness who had stopped to help and told her that everyone was all right.

As a result of the incident, Merritt was charged with three counts of first degree vehicular homicide:¹ Count 1 was predicated on driving under the influence of alcohol to the extent that it was less safe for him to drive ("DUI less safe"),² Count 2 was predicated on driving with an unlawful alcohol concentration ("DUI per se"),³ and Count 3 was predicated on felony hit and run.⁴In addition, Merritt was charged with felony hit and run (Count 4), DUI less safe (Count 5), DUI per se (Count 6), failure to maintain lane (Count 7), and driving across a grassy median (Count 8).⁵A Hall County jury found Merritt guilty on all counts.The trial court merged Counts 2 through 6 into Count 1 for sentencing purposes and imposed the maximum sentence of 15 years to serve on Count 1.⁶On the two misdemeanors (Counts 7 and 8), the trial court sentenced Merritt to a total of twenty-four months on probation, to be served consecutively to the sentence on Count 1.On appeal, Merritt argues that (1) the evidence is insufficient to support his convictions on Counts 1, 2, 5, and 6; (2) his convictions as to Counts 2 and 6 are void due to defects in the indictment; (3)the trial court erred in admitting a custodial statement made by Merritt during the booking process; (4)the trial court abused its discretion by admitting photographs taken of Merritt while he was in custody; and(5)the trial court erred in dismissing his motion for new trial on the ground that it was untimely.While the fifth assertion has merit, the error does not require relief; indeed, none has been requested in that enumeration of error.Accordingly, we affirm Merritt's conviction.

1.We consider the first two enumerated errors together.Merritt claims that the evidence was insufficient to support his conviction on Counts 1, 2, 5, and 6 and that his convictions on Counts 2 and 6 are void due to defects in the indictment.As noted above, however, the trial court ruled at the sentencing hearing that Counts 2, 5, and 6 merged into Count 1, either as a matter of fact or of law.A conviction which is merged into another as a matter of fact or law is void.⁷It follows that error, if any, in convicting Merritt on Counts 2, 5, and 6 is harmless.⁸Thus, Merritt's contention that his convictions as to Counts 2 and 6 are void is moot, and we consider the sufficiency of the evidence only as to Count 1.

On appeal from a criminal conviction, we view the evidence in the light most favorable to the verdict, and the defendant no longer enjoys the presumption of innocence.⁹We neither weigh the evidence nor judge the credibility of witnesses, but determine only whether the evidence was sufficient under the standard set forth in Jackson v. Virginia.¹⁰"The jury's verdict must be upheld if any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt."¹¹

As pertains to Merritt's appeal, the essential elements of vehicular homicide in the first degree are: (1) causing the death of another, (2) without malice aforethought, (3) by driving a vehicle while under the influence of alcohol to the extent that it was less safe for him to drive.¹²Here, Merritt does not dispute that, without malice aforethought, he caused the collision resulting in Matthew's death.His sole contention is that the state presented insufficient circumstantial evidence to prove that he had been drinking before the fatal collision.We disagree.

Construed most favorably to the state, the evidence shows that the SUV was in the right-hand land proceeding southbound on I-985 when Merritt's car, which was also going southbound, left the roadway, continued onto the left shoulder almost to the guard rail, lost control, slid back across the road, and clipped the SUV's rear left quarter panel.Georgia State Patrol TrooperKenneth Kitchens, who arrived upon the scene at 6:44 p.m. and investigated the fatal crash, testified that it did not appear that Merritt applied his brakes before striking the SUV.

At 9:30 p.m., approximately three hours after fleeing the scene of the Hall County collision, Merritt was involved in a second collision he ran into a cement median at the intersection of Old Norcross Road and Cruse Road in Gwinnett County.Gwinnett County Police OfficerJared Bradley testified that he discovered Merritt sitting on the edge of the curb, and Merritt's car, which had a flat tire and minor front-end damage, was sitting in the middle of the intersection.When Bradley asked Merritt what happened, Merritt was "really unclear"; his eyes were glassy, his face was pale, and his gait was abnormal.Bradley asked Merritt whether he had been drinking that day, and Merritt responded affirmatively.He refused to perform field sobriety tests.Bradley formed the opinion that Merritt was under the influence of alcohol to the extent that he was a less safe driver and placed him under arrest.Bradley impounded Merritt's vehicle and conducted an inventory search, finding an open bottle of vodka inside a paper bag in the car.Two breath tests were performed on Merritt on an Intoxilyzer 5000 beginning at 10:01 p.m., and the results were 0.195 and 0.193.Merritt failed to inform Bradley about the earlier collision in Hall County.Merritt called his wife after the second collision but also neglected to mention the Hall County wreck.Merritt's excuse for failing to disclose that wreck was that he"was thinking of no one except myself."

Apparently, Merritt's car was released from impound, because Georgia State Patrol TrooperMark Cox testified that he located the vehicle at approximately 4:00 a.m. on the next day, June 4, 2002, at a residence in Gwinnett County.Cox searched the car and found another open bottle of liquor in the floorboard of the front passenger seat.The bottle was three-fourths empty.

Merritt remained in the custody of Gwinnett County from June 3 until June 6, when he was transferred to Hall County.Officer Brian Provost, who was the booking officer for the Hall County Detention Center, testified that during the booking process, he asks every inmate certain questions to determine whether the inmate has any medical conditions that would require treatment while in custody.One such question, which was posed to Merritt, relates to the last time the person consumed alcohol.Merritt responded that he had consumed one-half gallon of vodka on June 3, 2002.

Merritt's two prior DUI convictions, one in 1994 and another in 1996, were introduced into evidence as similar transactions.Merritt's blood-alcohol level in these two cases was 0.19 and 0.149/0.152, respectively.

Merritt testified at trial that he had not had anything to drink before the fatal Hall County wreck.He claimed that he ran away because he"panicked" when he"saw a little boy in the middle of the expressway laying face up."Then, Merritt testified, "I walked back to my car pretty rapidly, I've had back surgery, it's difficult to run, I walked pretty rapidly back to my car and I got in and I left the scene."¹³On cross-examination, Merritt testified that he would have run if he could have, stating: "I believe that everybody has a fight or flight instinct and at that moment I chose to fly."Merritt drove across the median to head in the other direction and claimed that he went to a QuikTrip in Gwinnett County, where he bought sodas and mixed them with the vodka he already had in the car.Merritt claimed that he sat there drinking for an hour to an hour and a half.Afterward, he started driving and ran into a cement median at the intersection where Officer Bradley found him.

On cross-examination, Merritt admitted that he had two open bottles of liquor in his car before he caused the fatal wreck.He further admitted that one bottle was "pretty full," while the other was three-fourths empty.He claimed that, although the bottles were open before the wreck, he did not actually consume any liquor from either bottle until after he arrived at the QuikTrip.Merritt admitted that he was unable to tell the jury the route he took after fleeing the scene because he was not "clearheaded."Later, he claimed he was "just numb."In an exchange with the prosecutor, Merritt admitted his "alcohol problem."

Q.And at some point that day you made the conscious decision to drink enough alcohol to get your blood alcohol content up to .193, correct?

A.That's correct.That's what people that have an occasional alcohol problem do.

Q.And you think that this incident and the Gwinnett County incident and the two prior DUIs are something that you consider an occasional alcohol problem?

A.No, sir ... it's an alcohol problem.

Q.Okay.So you would agree that you were having an alcohol problem on June 3, 2002?

A.I do believe that, yes, sir.

Contrary to Merritt's assertion, the state's evidence, both...