*1 725 up Muscogee Realty Corp. Id.; set a meritorious defense. Dev. v. Compliance Co., 400, 252 Ga. SE2d Jefferson (b) § mandatory, with the conditions of OCGA 9-11-55 and in its open absence, the trial has no discretion to default. Jesson v. court 645) Assocs., GCH & SE2d open
Here,
default,
did
the court to
Cavender
not move
right
judgment
final
based on
either as a matter
or before
providential
neglect,
he
met the four
cause
excusable
has not
§
precedent,
paid
and he has
9-11-55
conditions
not
costs. See OCGA
(a)
(1) (277
500) (1981)
(b); Copeland Carter,
The default been material including allegations complaint admitted, in the were deemed those establishing Taylors’ possession property adverse of the under years, hold color of title for seven and it was not error for the court to Taylors acquired simple property that the a fee interest §§ possession. 44-5-161; 44-5-164; adverse See OCGA 44-5-172.
Judgment All the Justices concur. affirmed. — Decided June July 28,
Reconsideration denied 2009. pro Cavender,
David A. se. Rogers, appellees. Chambers, for
Coleman & James C. THE
S09A0224. SMITH v. STATE.
Melton, Justice.
Following appeals trial, Ronald Dale Smith his convic- a bench contending homicide tion for first support insufficient to the conviction and that evidence was (OCGA (a)) statute is unconstitu- tional. We affirm. light verdict, in the most favorable to the the evidence
1. Viewed escaped prisoner that, 8, 2005, Smith, on March an from reveals driving Dodge pick-up Florida, a white truck with a North was (“be lookout”) tag through County. A BOLO on the Carolina pick-up truck, for the white and Carroll had been issued Deputy spotted Jamie K. Godbee the vehicle as Smith drove Sheriffs *2 Highway County. 27 in Officer Godbee activated
down emergency
lights
pursued
into
Smith from Carroll
County.
sped through
light
a red
at the intersection
Haralson
Smith
Highway
Highway
A
78, with Officer Godbee close behind.
of
27 and
stopped
light
by
Partain was
at the red
at the
car driven
Rebecca
Godbee,
see Ms. Partain’s vehicle due
intersection. Officer
unable to
truck, collided with Ms. Partain’s
to his close
to Smith’s
killing
Ms. Partain.1
enable a rational trier of fact to
The evidence was sufficient to
degree
by
guilty
homicide
vehicle. Jackson v.
find Smith
Virginia,
of first
(99
560) (1979);
§
2781, 61 LE2d
OCGA
vehicle. See id. Smith’s to the is without merit. Judgment Carley, Thompson J., Benham, Hines, P. affirmed. JJ., Hunstein, J., concur. C. dissents. dissenting. Justice, Chief
HUNSTEIN, *3 prosecution against In its criminal Ronald Dale Smith for first degree prove guilt beyond homicide, vehicular the State chose to his by presenting against a reasonable doubt its evidence him in the stipulated form of alleged escaped prisoner facts. Those facts reflected that Smith was an alleged
from Florida wanted for an theft taking in North Carolina. Officer Godbee of the Carroll Department matching Sheriff s was on a look-out for a vehicle description of Smith’s truck when he encountered Smith. Officer lights proceeded Godbee activated his siren and and after Smith’s heading Highway officer, but Smith fled the north on 27. appeal, stipulated Pertinent to this the State that: pursue [Smith]
6. Officer Godbee continued to North on Highway approximately traveling 27 for three to four miles speeds approximately per exceeding at hour, 75 miles per posted speed; 55 miles hour and During
7. most of his Officer Godbee’s vehicle was lengths [Smith’s] within vehicle, a few car which did not him forward; allow a full field of vision and [Smith] approached
8. As and Officer Godbee the intersec- Highway[s light controlling tion of 78], 27 and the traffic traveling the intersection was red for traffic North on Highway 27; and [Smith]
9. As and Officer Godbee came to the intersec- traveling [approximately mph] . . tion . both were and [were] excluding [Smith’s] vehicles, there three other and vehicles, Officer Godbee’s at intersection; and 10. Rebecca Partain’s vehicle was in the Northbound lane of Highway stopped 27 behind vehicle, another and for the red light; and [Smith officer’s]
11. As and the vehicles entered the inter- section, Godbee, Officer unable to see Ms. Partain’s vehicle [Smith’s] due to his close collided with vehicle; Ms. Partain’s Godbee’s vehicle with Ms.
12. The collision of Officer in Ms. Partain’s death .... Partain’s vehicle resulted for vehicular In to sustain a conviction first order prove beyond a reason homicide, the evidence must be sufficient to predicate only traffic not that the accused committed able doubt proximate predicate cause also that the offense was offense but of the App. 786, P., In L. victim’s death. the Interest stipulated in this case established The facts predicate i.e., offense, OCGA Smith’s commission of the traffic officer). (fleeing attempting enforcement or to elude a law proximate element, however, the facts As to the cause support hypotheses, consistent with Smith’s two reasonable one guilt innocence. As to the first but the other consistent with Smith’s proximate hypothesis, find that Smith was the the trier of fact could “played a substantial cause of the victim’s death part actions damage actually causing injury bringing or or about reasonably damage injury was either a direct result or a that the probable consequence *4 (Citation omitted.) State, of the act.” Ponder v. 857) (2005). App. 93, SE2d As to the second 274 Ga. stipulated hypothesis, facts, find, fact based on the the trier of could proximate the cause of the victim’s death. that Officer Godbee was stipulated flight justified Although the officer’s the Smith’s compelled nothing to to indicate that the officer was facts contain closely impair as the officer’s vision of other follow Smith so to reasonably to Thus, the officer could be found vehicles on the road. proximate in have collision, cause of the either that he could be the navigated the intersection in the same manner as Smith without any colliding with other vehicles had the officer maintained a safe enough him of Smith’s vehicle to “allow a full field distance behind the or in that the officer could have terminated vision forward” Policy” pursuit altogether pursuant the to the “Vehicle Pursuit of being in Sheriffs Office the State as time of this incident.2 effect at the Policy provides part parties stipulated that the Pursuit in relevant that The Vehicle regulations only emergency lights deputies may speed if and exceed the limit and other traffic safety persons”; employed deputy regard the “exercises due for the of all that sirens are and Deputy’s opinion, continuing outweighs
pursuit the the “shall be terminated if the risk of danger permitting suspect escape”; to and that of Deputy voluntarily pursuit [u]nder a most circumstances the should terminate . . . when that it is too hazardous for the 4. Traffic volume road conditions dictate and/or continue; chase surrounding pursuit continuing pursuit are 5. The conditions such Deputy public allowing fleeing poses greater safety a risk for the or the than escape. motorist to proximate While the issue as to what constitutes cause is “ ‘undeniably jury question always a and is to be determined on the upon logic, of facts each case mixed sense, considerations of common justice, policy, precedent’ [cit.]” State, . . . McGrath v. 277 Ga. App. (2006), 825, 829 SE2d the manner in which the State present chose to typical its case to the trial court eliminated the factfinder’s assessing
role Moreover, evidence. because a this is prosecution, criminal only suit, not a civil the burden was on the State not prove hypothesis guilt, namely, its own of that Smith was the proximate disprove death, cause of the victim’s but also to hypothesis proximate reasonable that Officer Godbee was the cause. (1) (553 674) (2001) App. State, See Carr v. 251 Ga. (State prove only must “not that the evidence is consistent with the hypothesis guilt, every hypothesis of but that other reasonable excluded”). nonguilt is supports
When the circumstantial evidence more than one theory, guilt one consistent with and another with inno- every hypothesis cence, it does not exclude other reasonable except guilt prove and is not sufficient to the defendant’s guilt beyond a reasonable doubt. Circumstantial evidence is nothing worth reasonably in a if case, criminal the circumstances are hypothesis innocence,
consistent with the hypothesis as guilt. well as the
(Citations
omitted.)
punctuation
State,
O’Neill v.
The facts as the State hypothesis reasonable was caused that Officer Godbee’s collision with the victim
by improper pursuit by Smith, officer’s rather than flight hypothesis supported by Smith’s Smith This alone. the facts that safely navigated hitting victim; intersection without inability specifically that the officer’s to see the victim’s vehicle was [Smith’s] “due to his close vehicle”; and that this “close proximity” any unexpected by was not the result of maneuver Smith upon entering the intersection but rather was a deliberate decision officer, as disclosed the fact that he maintained that during though by doing distance “most” even so he knowingly deprived himself of a full field of vision forward.
Accordingly, because the facts failed to exclude the resulting reasonable inference that the accident and death occurred pursuit improperly because Officer Godbee’s of Smith was main- tained, I would hold that the evidence was insufficient to sustain respect- Smith’s conviction for first vehicle and judgment majority’s fully of the affirmance dissent McKinney supra, for that offense. Accord entered sentence 204 Ga. at — 29, 2009 Decided June August ll, 2009. denied Reconsideration appellant. Browning, Jr., for Oliver J. Attorney, Craig Miller, Brooks, Jr., E. Assistant E. District
Robert appellee. Attorney Attorney, Baker, General, for E. Thurbert District