Ogilvie v. State
313 Ga. App. 305
| Ga. Ct. App. | 2011Background
- Ogilvie struck a seven-year-old pedestrian in a crosswalk; the child died.
- The accident occurred as the crosswalk spanned three lanes; it was dusk/dawn lighting conditions.
- A crossing guard testified he signaled traffic to stop but Ogilvie failed to yield; another car stopped after Ogilvie.
- Eyewitnesses provided conflicting narratives about the crossing guard's signals and the child's entry into the crosswalk.
- Ogilvie admitted she failed to yield and caused the death, claiming the child ran into the street; she sought an accident defense.
- Ogivlie was convicted of vehicular homicide in the second degree and failing to stop for a pedestrian in a crosswalk; she moved to quash and requested an accident instruction.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether the accusation was fatally defective | Ogilvie | Ogilvie | Accusation sufficient; adequate notice of elements |
| Whether the trial court erred by refusing an accident instruction | Ogilvie entitled to accident charge as defense to strict liability offenses | State; accident not applicable to strict liability offenses | Trial court erred; accident defense available and should have been charged |
| Whether error was harmless or required reversal | Ogilvie's sole defense of accident not fairly presented; jury prejudice | Charge already framed defendant's theory; harmless | Error not harmless; reversal warranted |
Key Cases Cited
- Broski v. State, 196 Ga.App. 116 (1990) (indictment must inform the defendant of charges)
- State v. King, 296 Ga.App. 353 (2009) (statutory recitation suffices to notify charges)
- Hoffer v. State, 192 Ga.App. 378 (1989) (accident defense in traffic offenses)
- Morris v. State, 210 Ga.App. 617 (1993) (accident instruction proper where circumstances beyond control)
- Moore v. State, 258 Ga.App. 293 (2002) (trial court error on accident in vehicular offenses)
- Wilson v. State, 279 Ga. 104 (2005) (accident as affirmative defense requires absence of intent and negligence)
- Coates v. State, 216 Ga.App. 93 (1994) (strict liability and accident defense considerations)
- Sears v. State, 290 Ga. 1 (2011) (accident charge in felony murder; considerations for harmless error)
- Mitchell v. State, 255 Ga.App. 585 (2002) (proximate cause considerations in accident analysis)
- Smith v. State, 200 Ga. 188 (1945) (accident principles in vehicular context)