531 S.E.2d 752 | Ga. Ct. App. | 2000
Angela Michele Griffin was tried before a jury and found guilty of first degree vehicular homicide (Counts 1 and 2), serious injury by vehicle (Count 3), driving under the influence (Count 4), driving without insurance (Count 5) and failure to use child safety restraints (Count 6). The DUI count was merged with the vehicular homicide counts at sentencing, and this direct appeal followed. Griffin enumerates the sufficiency of the evidence for first degree vehicular homicide. She also contends she was denied due process because the State failed to preserve potentially exculpatory evidence and the trial court would not allow her to independently test the blood sample taken from her. We affirm.
Viewed in the light most favorable to the jury’s verdicts, the evidence adduced at trial showed that a Vidalia police officer was dispatched to the scene of a two-car accident that was a head-on collision. The vehicle driven by defendant Griffin was clearly in the oncoming traffic lane, still engaged to the other car. On the floorboard of Griffin’s vehicle, the officer found a small child, deceased.
An officer with the Georgia State Patrol observed tire marks in the southbound lane leading up to Griffin’s vehicle. From this, he deduced that defendant’s car did not suddenly veer into the southbound lane but had been in the wrong lane some time before impact. On the floorboard of defendant’s car was a six-pack of beer, with some bottles still full with the cap on while others were unbroken with the cap off The unbroken bottles with the cap on were still cool to the touch, with condensation. There was no child safety restraint device in Griffin’s car.
After Griffin was informed of her implied consent rights, she consented to a blood test, and a hospital nurse drew that blood sample. Griffin was alert and oriented as to her location, what day it was, and her name, whereas someone in shock would be unable to give all that information. Griffin’s blood sample tested positive for alcohol at 0.16 grams percent, while Eaght’s blood was negative for alcohol. Eight was unable to recall any of the details of the collision.
1. Any person who, without malice aforethought, causes the death of another person through the violation of OCGA § 40-6-391 (DUI) commits the offense of homicide by vehicle in the first degree.
Questions as to the reasonableness of hypotheses are generally decided by the jury which heard the evidence, and where the jury is authorized to find the evidence, although circumstantial, was sufficient to exclude every reasonable hypothesis save the guilt of the accused, that finding will not be disturbed on appeal unless the ver
Griffin drove while her blood alcohol level exceeded the lawful limit. This evidence not only established the predicate violation of OCGA § 40-6-391 (a) (5), but it also raised the permissive inference that Griffin was intoxicated to the extent she was a less safe driver.
2. Nine months before trial, defendant moved for an order “expediting] discovery” pursuant to OCGA § 17-16-4 and directing the State to “make available” certain evidence including the “vehicles which were involved in the accident” and defendant’s blood sample that was tested for alcohol content. At the hearing on defendant’s motion, the State’s attorney stated he would make available to counsel “everything I’ve got today,” but denied any knowledge of the whereabouts of the vehicles. At the court’s suggestion, the prosecutor offered to telephone the police department, whereupon proceedings in the hearing were concluded without any ruling on the motion. At trial, defendant adduced evidence showing that, five or six weeks after the police conducted their inquiries, the vehicle driven by defendant was sold by the wrecker service that towed it from the scene. No motion for new trial was filed in this case.
Although defendant contends on appeal that she was denied due process because the police failed to preserve arguably exculpatory physical evidence and she was denied an independent test of her blood sample, for aught that appears of record there is no ruling on either question by the trial court. This Court is for the correction of errors of law committed by the trial court where proper exception is taken.
Judgment affirmed.
OCGA § 40-6-393 (a).
Robbins v. State, 269 Ga. 500, 501 (1) (499 SE2d 323) (1998). See also Smith v. State, 56 Ga. App. 384, 387-388 (192 SE 647) (1937) (where there appears from the evidence (or the lack of evidence) some hypothesis pointing to the innocence of the accused, and which tested by all human experience is a reasonable one, this Court may declare it so as a matter of law).
OCGA § 40-6-392 (b) (3). See also Ellerbee v. State, 215 Ga. App. 102, 104 (5) (449 SE2d 874) (1994).
443 U. S. 307 (99 SC 2781, 61 LE2d 560) (1979).
Dobson v. State, 222 Ga. App. 331, 332 (474 SE2d 630) (1996).
Sparks v. State, 232 Ga. App. 179, 182 (3) (a) (501 SE2d 562) (1998).
(Citations and punctuation omitted.) Gee v. State, 210 Ga. App. 60, 61 (3) (435 SE2d 275) (1993).