Nash v. State

• Decision Date: 27 June 1986
• Docket Number: No. 71816,71816
• Parties: NASH v. The STATE.
• Court: Georgia Court of Appeals

Page 651

347 S.E.2d 651

179 Ga.App. 702

NASH v. The STATE.

No. 71816.

Court of Appeals of Georgia.

June 27, 1986.

Rehearing Denied July 9, 1986.

Allen R. Hirons, Marietta, for appellant.

Thomas J. Charron, Dist. Atty., Debra H. Bernes, Asst. Dist. Atty., for appellee.

BENHAM, Judge.

A jury convicted appellant of vehicular homicide in the first degree, reckless driving, improper passing, and failure to maintain no-fault insurance. On appeal, he contests the entry of judgment against him in several of the charges; takes issue with several evidentiary rulings made by the trial court; and challenges the content of the jury charge.

The charges against appellant arose from a fatal collision which occurred when appellant attempted to pass a slower vehicle on a two-lane road in Cobb County. Eyewitnesses testified appellant crossed over a double-yellow line on a "very curvy and very hilly" road into the path of an oncoming vehicle. Although appellant attempted to stop, the two cars collided, killing the driver of the other car and injuring the two small children who were passengers in the victim's car. An accident reconstruction expert testified appellant was traveling at a speed of at least 60 miles per hour in the 35-mile-per-hour zone at the time of the collision. An eyewitness opined that appellant was driving unsafely.

1. Appellant contends his convictions for improper passing and reckless driving should have merged into the vehicular homicide conviction under OCGA § 16-1-7 and asks that the convictions for the lesser offenses be vacated. The State is in agreement and "anticipates presenting the trial court with an amended order and supplementing the record on appeal with said order prior to the disposition of this case." Inasmuch as the record has not been so supplemented, we reverse appellant's convictions for improper passing and reckless driving since they are "lesser included offenses" of vehicular homicide. Rank v. State, 179 Ga.App. 28, 345 S.E.2d 75 (1986).

2. Appellant claims error in the content of the instructions to the jury. "In order to avoid waiver, if the trial court inquires if there are objections to the charge, counsel must state his objections or follow the procedure ... of reserving his right to object on motion for new trial or appeal. Here defense counsel neither objected nor reserved the right to later object, and under such circumstances, the defendant has waived the right to raise the issue on appeal. [Cits.]" Scott v. State, 250 Ga. 195 (1c), 297 S.E.2d 18 (1982). "While it is true that this court shall consider and review erroneous charges where there has been a substantial error in the charge which was harmful as a matter of law, regardless of whether or not objection was made (OCGA § 5-5-24(c)), appellant has not shown that the allegedly erroneous charge was blatantly apparent and prejudicial to the extent that it raises a question whether he has been deprived, to some extent, of a fair trial. [Cits.]" Maynard v. State, 171 Ga.App. 605 (2), 320 S.E.2d 806 (1984).

3. Appellant offered to plead guilty to misdemeanor vehicular homicide and make monetary restitution to the victim's family. Appellant contends the State's refusal to recommend acceptance of the plea bargain because he could not make the agreed-upon initial restitution payment of $5,000, and the trial court's refusal to accept the plea, denied him equal protection and violated OCGA § 17-14-15(b).

"This appeal was filed with the Georgia Supreme Court and was transferred to this court by order, without comment. That court's refusal to review [appellant's] constitutional challenges mandates the finding that the contentions on constitutional grounds are without merit ... McCann v. State, 167 Ga.App. 368 (1), 306 S.E.2d 681 [1983]." George v. State, 175 Ga.App. 229 (1), 333 S.E.2d 141 (1985).

OCGA § 17-14-15(b) states: "No offender shall be denied any benefit, relief, or privilege to which he might otherwise be entitled or eligible solely because he is financially unable and cannot become financially able to make restitution." Contrary to his assertion, appellant does not fall within the protection of the statute inasmuch as the term "offender" is statutorily defined as "any natural person who has been placed on probation ... or sentenced for any crime...." OCGA § 17-14-2(4).

4. Following the collision, appellant was informed of the provisions of the implied consent law and agreed to submit samples of blood and urine for testing. The forensic toxicologist who evaluated the blood and urine specimens for the presence of drugs was permitted to testify that appellant's blood and urine samples contained metabolite of tetrahydrocannabinol, an ingredient of marijuana, the presence of which indicated marijuana usage within the last 24 to 36 hours. Appellant objected to the admission of the testimony, contending it was irrelevant since appellant had not been charged with driving under the influence of drugs. However, the witness went on to state that delayed motor responses and distortion of space and time were observed reactions linked with marijuana usage. Another expert witness testified that a low dosage of marijuana could cause alterations in the user's sight, smell, and hearing sensory perceptions. Since appellant's blood and urine samples contained a substance that could have affected appellant's perceptions while driving, since appellant had stated that he had made the attempt to pass based upon his perceptions of the situation, and since appellant was charged with reckless driving, a violation which could have been precipitated by appellant's marijuana usage, the test results were admissible.

5. While conducting an inventory search of appellant's automobile, the searching officer found a hard hat, work gloves, a can, a screwdriver, a hairbrush, a Narcotics Anonymous booklet, and a white paper sack containing ten disposable syringes and a receipt therefor. Only the booklet and syringes were offered and admitted into evidence. When questioned by police, appellant admitted ownership of the pamphlet and syringes and, after giving an incriminating statement, told officers he had used cocaine approximately 24 hours before the collision. Appellant contends his statement regarding cocaine usage, the booklet, and the syringes should not have been admitted into evidence because they were irrelevant to the issues on trial. The State maintains the statement was admissible to show appellant's state of mind, and the syringes and pamphlet were admissible because "they served to place the defendant at the specific location of the crime" and "were circumstantial evidence of the route that the appellant took immediately prior to the collision."

"It is no valid ground of objection to the admission in evidence of an incriminatory statement or confession made by the accused in a criminal case that the language indicated that the accused had committed also another and separate offense. [Cit.]" Stephens v. State, 164 Ga.App. 398 (4), 297 S.E.2d 90 (1982). Thus, appellant's admission he had used cocaine the night before the collision was admissible. See Miller v. State, 155 Ga.App. 587 (2), 271 S.E.2d 719 (1980). However, the syringes and Narcotics Anonymous booklet are another matter. These items had no probative value insofar as the charges leveled against appellant were concerned. Instead, they could serve only to instill in the jury's mind that appellant was a user of hard drugs. The inflammatory nature of these items of evidence is further enhanced by the fact that the non-drug related items found in appellant's car were not introduced into evidence. To suggest that these items were necessary to place at the scene a defendant who was taken into custody at the scene, who never contested his presence at the scene, and who never denied his involvement in the collision is to stretch credulity to its limits.

The State maintains that admission of the bag of syringes, complete with store receipt, was necessary to establish appellant's pre-collision route. The necessity of such evidence in light of the testimony of witnesses who were followed by appellant for several miles before the collision (who in fact were in the car appellant was attempting to pass at the time of the collision), and the admission of appellant's statement to the police in which he recounted his pre-collision route, is questionable. Even if such a facet of the case were necessary to support a conviction, the bag and receipt were sufficient evidence to establish the identity of the store where appellant had made his purchase. The articles actually purchased were irrelevant to the case and should not have been admitted.

Oftentimes, prosecutorial overkill places appellate courts on the horns of a dilemma--do we reverse a conviction in which no reasonable doubt of guilt exists in order to make prosecutors aware that such indiscretions will not be tolerated? Or are we constrained, due to the sheer amount of evidence presented against the defendant, to uphold the conviction and condemn as "harmless error" the excesses of the prosecutor? Were the evidence before us not as clear and convincing of guilt, we would reverse the convictions due to prosecutorial overzealousness. However, eyewitnesses stated appellant drove a vehicle on the wrong side of a hilly and curvy road at an excessive speed, causing a woman's death; in his own statement, appellant acknowledged his role in the collision. We, therefore, are constrained to uphold the conviction of vehicular homicide despite the prosecutorial excesses.

6. Appellant contends the evidence was insufficient to support the jury's guilty verdict on the charge appellant had failed to maintain no-fault...