*1 (b) Appeals is denied. pursuant to Court of Rule appeal Johnson and affirmed. Firm, Donald Johnson Law W. J. Caleb Clarke III, Love, Green, Willingham, Daryll
Love & Traci Margie L. Hames, Woodland, Kimberly appellees. L.
A93A0817. REYNOLDS v. THE STATE. Presiding Judge.
Birdsong, Reynolds was tried and of driving convicted under the influence alcohol, fleeing attempting police officer, obstruction officer, driving road, of an the wrong on side of the open appeal solely container of alcohol. His concerned with the conviction for fleeing a police elude
Viewing verdict, the evidence most favorable to the it showed that on City December Officer Baker of Ara- gon Department complaint Police received that a was shoot- ing a firearm large pickup out the window of a Ford truck. Baker be- gan driving to the reported location in his patrol car to investigate. way, vehicle, On his Reynolds’ he encountered which was partially on the side of the road and traveling was at a speed. rate of pulled
Baker off the road order turn his vehicle around and Reynolds follow and he patrol lights activated the blue of his vehicle. response action, Reynolds speed. increased his began Baker Reynolds, to chase again on was the wrong side of the road. Baker Reynolds estimated that traveling was mph between 45-60 an area for which the posted speed limit mph. was 30 Although Baker operating lights the blue vehicle, his he was not able acti- vate the siren since the control switch was on located the floor of the vehicle and Baker was concerned that he lose control of vehicle if he reached for the switch. bright Baker did turn on headlights and the lights, “take down” pa- the clear spotlights on the chase, trol car. During Reynolds .44 magnum threw a out revolver the window.
Reynolds pulled then driveway over into the of a residence. stopped Baker also Reynolds and commanded to exit his vehicle. approached Baker drawn, with his yelled be- Reynolds repeatedly could not touch to Baker eventually pulled private property. Baker he was on cause out of the ground him. handcuffed vehicle to the lights although the blue he saw testified patrol headlights vehicle, realize Baker was lights glare him to veer caused from Baker’s him. He claimed *2 threw also claimed of the road. side onto having know whether his vehicle because testimony regarding legal. There was in the vehicle was evening. Held: vehicles on the road error, contends 1. In his first enumeration regard- overruling for directed verdict in his motion court erred trial charge § 40-6-395 that OCGA an officer. He claims the requires signal (a) officer that an perti- is statute before a conviction for nently provides: a vehicle will- driver of “It shall be unlawful for stop bring fully to flee to a or otherwise to his vehicle to fail or refuse police pursuing police attempt or officer or given stop. bring the vehicle to a to a visual emergency by by police signal given hand, voice, prom- giving light, in shall be uniform or siren. The officer appro- inently displaying priately supplied.) badge office, his vehicle shall be (Emphasis police showing official vehicle.” it to be an diligently interpretations statutes, shall look the courts “In all kéeping Assembly, all view at the intention of the General remedy.” § Un- law, evil, times the old purpose, alia, drivers § 40-6-6, inter is to authorize whose like OCGA op- disregard emergency rules of the road when vehicles to certain emergency erating visual audible and their vehicle with both present, public danger OCGA 40-6- so as to alert the statutory purpose. OCGA 40-6- 395 395 has a different and distinct unequivocal legislative intent to render its an reflects on of a vehicle deter instances where a driver unlawful and fails or those bring flee or or otherwise to refuses to his vehicle to a pursuing This is vehicle or actually pro- proscribed is and that criminal conduct intended to be sought en- However, “to also scribed sure the offense of this statute. the evi- is found unless to elude’ doubt a reasonable a rational dence allows po- person fleeing mistake the could not that the lice car for 877, 878 v. else.” Cook language remaining a stat- creates the statute safeguard provide utory signalling system designed added against of less than criminal conviction borne an ultimate part offending signal system required
duct on the
driver. The
is
and is not
the criminal
be initiated
statutorily proscribed.
is
signal,
require
just
To
both
visual and
rather
recognizable
type,
meaningful legislative
one
purpose
of either
serves no
itself,
in fact lends
as is evidenced
facts
recognizable
legally
given by
case, to
If one
results
absurd.
visually
audibly,
giving
of a
either
second does not
per
provide any greater
recognition during
se
assurance of actual
hot
pursuit.
many recognizable signals
guarantee
How
are
needed
—
fifty?
recognition
one, two,
driver
they
strictly construed,
criminal statutes must be
genuine legislative
first be
manner which avoids absurd and
construed consistent
intent and in a
contradictory
(compare
results
the evil the and thereafter meaningful interpretation. accord the statute a more and realistic Did legislature wilfully speed away the police intend that a driver could after the lights (thereby creating necessity activated their blue for a dangerous pursuit), fleeing, throw a out the car window while overwhelming and, evidence of criminal conduct notwithstand ing, unlawfully merely po be deemed not to have acted because the (in safety considerations) lice officer this case due to failed to activate statutory interpretation view, In our too? dangerous would lead to a result. particular judgment defendant,
As however, of convic- (due tion a As fair risk cannot be excluded unexplained ambiguity appearing in the the statute at the offense) appellant time of the taken belief that could have under a mis- labored merely given because a second he was not police pursuit free sanction, without fear criminal his conviction for this offense must be set aside. Cf. OCGA 16-1-2 “ (3). process give adequate ‘Due mandates that criminal laws warn- ” ing Conyers of what will constitute a crime.’ (1) (397 423). appellant’s Ga. 506 At the time of offense neither public provided judiciary had nor the warning. requisite will practicable, politically
Hopefully, as soon reasonable to strike a re-examine OCGA § interests here competing societal between the meaningful balance activity: for the dangerous dangerous is a Eluding at issue. driver, dangerous to particularly dangerous for the seriously injured be killed or bystanders who can third-party innocent major or their heirs frequently leaving them under circumstances See, obtaining compensation. means of and no realistic indebtedness 40- Patton, App. 168 Banks v. e.g., deter intentional proscribe and re-promulgated to should be 6-395 statutory system accompanying police; acts of sense, reasonabil- the tests of common capable satisfying should be real-world, law enforcement employed ity, and effectiveness situations. above, need not in Division we disposition
2. In view of our of error. appellant’s remaining enumeration address conviction judgment flee- affirmed J., J., McMurray, P. Pope, to elude reversed. J., Andrews and Beasley, Cooper J., Smith, JJ., participating. specially. concur concurring specially. Judge, Andrews, reversed, I I conviction should agree that disagree majority’s with the that an officer requires
The statute eluding an officer is before a conviction for in- can be second sentences of the statute Although the first and interpre- valid contradictory, equally is also an terpreted to be there apparent there is an presents ambiguity. which “Where tation duty of a of the same flict between different sections them, consistent possible, so as to make them court is to reconcile Christy, Board Trustees &c. v. and harmonious with one another.” (1980). instance, un- In this *4 sentence ambiguous interpretation of the statute is that the second and audi- simply defines the alternative methods which the visual words, may In be may the visual signals given. ble and voice emergency light hand or the audible siren.
Furthermore, to create even the two sentences are read so as the am- ambiguity, Reynolds’ conviction construed statutes must be we are mindful that biguity, “[c]riminal Palmer the accused.” the State and favor of strictly against 251) (1990). OCGA 330, purpose State, 260 Ga. 331 SE2d elude’ “is to ensure the offense of is not a jury found unless the evidence allows rational person not fleeing reasonable doubt that the could mistake State, Cook for else.” car 847) (1986). 877, inclusion word “and” in the first sentence of the statute indicates necessary that both were effect purpose. See Reed v. (1) 15) generally (fact that the indictment alleging violation of 40-6-395 con tained “and” not “or” fatal because the indictment was trial). at Prior to amended revision of the effective January the first sentence of the statute contained the word “or” change, instead of the current “and.” The requiring even more unambiguous certain and notification required
had change, been before the at was made the same time that category escalated the of this crime from a misde meanor to misdemeanor of a aggravated nature. Ga. L. 1990, 2048, pp. 2321, 5. change was deliberate.
Accordingly, I conclude that conviction for should be reversed because of the signal. absence of
I am authorized to state Presiding Judge Beasley and Judge join Smith special concurrence.
Johnny R. Turner, Jr.,
George Attorney, Ballew, District Jeffrey L. As- Attorney, sistant District appellee.
A93A0839. JOHNSON v. THE STATE.
Smith, Judge. Kenneth Johnson was tried before a guilty and found robbery, armed imprisonment, false aof sawed-off shotgun. appeals He judgments of conviction and sentences entered jury’s trial court on the verdict.
1. Johnson enumerates as error the grounds. Viewed in the light most jury’s verdict, favorable to the the evidence showed the following: Johnson was identified the young wielding man a sawed- off shotgun who demanded keys the victim’s gun- house car at point car, forced trunk locking into the it. The sawed-off shotgun possessed Johnson subsequent at the time of his