Hammill v. State

327 Ga.App. 580

758 S.E.2d 336

HAMMILL

v.The STATE.

No. A14A0450.

Court of Appeals of Georgia.

May 30, 2014.

Reconsideration Denied June 17, 2014.

Certiorari Denied Sept. 8, 2014.

Robert Parker McFarland Jr., Cumming, for Appellant.

Penny Alane Penn, Michael Shawn Mahoney, for Appellee.

BARNES, Presiding Judge.

This case arises out of the collision of two jet skis on Lake Lanier. The collision occurred when the defendant, Taylor Whitfield Hammill, struck the other jet skier from behind at a speed of 30 to 40 mph. Based on evidence that Hammill had been consuming alcohol and operating his jet ski in a reckless manner, a jury found him guilty of two counts of serious injury by vessel, one count of reckless operation of a vessel, and one count of operating a vessel under the influence of alcohol. The trial court subsequently denied Hammill's motion for new trial, and this appeal followed. Hammill maintains on appeal (1) that the State failed to prove proximate cause, an essential element of the offense of serious injury by vessel; (2) that the trial court erred in limiting his counsel's recross-examination of an officer about whether Hammill had refused a State-administered blood test; (3) that the prosecutor improperly commented in the presence of the jury on his right not to testify and incriminate himself; (4) that the trial court erred in denying his motion for mistrial or in failing to give a curative instruction when the prosecutor allegedly made an improper remark in closing argument regarding Hammill's refusal to submit to a State-administered breath or blood test; and (5) that the trial court erroneously charged the jury on the inference that could be drawn from his refusal to submit to a State-administered breath or blood test. For the reasons discussed below, we affirm.¹

“Following a criminal conviction, the defendant is no longer presumed innocent, and we view the evidence in the light most favorable to sustain the verdict.” Anthony v. State, 317 Ga.App. 807, 732 S.E.2d 845 (2012). So viewed, the evidence showed that Hammill, the victim, and the victim's boyfriend were college friends. On Saturday, July 25, 2009, they decided to go to Lake Lanier, where the parents of the victim's boyfriend owned a lake house.

They arrived at the lake house around 1:00 p.m. and went down to the dock by the lake, where they stayed for several hours. According to the victim, her boyfriend and Hammill brought two 24–packs of beer and a bottle of vodka with them to the lake house. While on the dock, everyone began drinking the beer, and the victim testified that her boyfriend and Hammill were drinking “a lot, pretty fast.” The victim's boyfriend also got out the bottle of vodka and poured it into slices of watermelon, and everyone began to eat the watermelon “infused with vodka.”

The parents of the victim's boyfriend who owned the lake house came down to the dock and also were drinking alcohol. The boyfriend'sfather owned two jet skis. When Hammill and the victim's boyfriend asked if they could take the jet skis out on the lake, the mother responded, “Absolutely not, they're not insured, and you've been drinking.” But when the mother left the dock to go back to the lake house, the father gave them permission to ride the jet skis as long as they brought them “right back.”

The victim, her boyfriend, and Hammill rode the jet skis out to a small island on the lake with a beach area, where they played horseshoes and continued to drink beer. After about 20 minutes, they decided to return to the lake house. The victim was driving one of the jet skis with her boyfriend as her passenger, while Hammill drove the other jet ski. According to the victim, even though the water was choppy, Hammill was driving the other jet ski “ridiculously fast,” was sticking out his tongue, making faces and “doing little silly signs” with his hands, and was swerving back and forth across the water near the victim and her boyfriend. At one point, Hammill came within “arm's length” of the victim and her boyfriend's jet ski, and the victim told her boyfriend, “[H]e's too close. Tell him to back off. It's freaking me out.” The victim's boyfriend then waived his hand back at Hammill in an effort to get him to slow down.

As they continued back to the lake house on the jet skis, the victim's jet ski hit a wave, and her boyfriend fell off. The victim stopped her jet ski so that her boyfriend could swim over and get back on. While the victim's jet ski was stopped in the water, Hammill collided with it and struck the victim in the head, causing her to fall into the water unconscious. The collision occurred in a portion of the lake in Forsyth County.

The victim's boyfriend and Hammill flagged down a pontoon boat, and together with the boat owner they were able to get the victim into the boat and back over to the shore. A bystander on the shore called 911, and Forsyth County emergency response personnel were dispatched to the scene and transported the victim to the hospital, where she underwent two brain surgeries and remained unconscious for approximately two months as a result of the brain trauma she had suffered. The victim subsequently went through months of speech, occupational, physical, and cognitive therapy. Ultimately, the victim returned to college, and she was able to recall the events that had transpired at the lake because she did not suffer any long-term memory problems.

While the victim was transported to the hospital, an officer assigned to the law enforcement section of the Georgia Department of Natural Resources (“DNR”) who had been dispatched to the scene began his investigation of the collision and spoke with Hammill on a nearby dock. The DNR officer took photographs of the jet skis and video-recorded his investigation and interaction with Hammill using a “pin cam” that he wore. As a result of his investigation, including his examination of the damaged jet skis, the officer determined that Hammill had been traveling between 30 to 40 mph when he struck the rear side of the victim's jet ski. The officer further determined that Hammill collided with the victim's jet ski with such force that his jet ski traveled over the top of it and struck the victim directly in the head.

As part of his investigation, the officer also found an empty beer can on the jet ski driven by Hammill. Moreover, while speaking with Hammill, the officer noticed that he smelled strongly of alcohol, that his eyes were red and glassy, that his speech was slurred, and that he was unsteady on his feet. After obtaining Hammill's consent, the officer performed several field sobriety tests for boaters approved by the United States Coast Guard for use in water-related environments: the horizontal gaze nystagmus (“HGN”) test, the recitation of the alphabet and counting tests, and the hand-pat and finger dexterity tests. ² Hammill exhibited six out of six clues of impairment on the HGN test, had trouble reciting the alphabet and counting backwards, and failed to follow the directions in performing the hand-pat and finger dexterity tests. The officer also asked Hammill to submit to a preliminary Alcosensor breath test, but he refused. Hammill admitted to the officer that he drank four or five beers that day before the collision, but he told the officer that he did not want anything in writing stating that the collision had been caused by his drinking because he did not feel that he had been impaired by his alcohol consumption.

Based on his training and experience, his observations of Hammill, and Hammill's performance on the field sobriety tests, the officer concluded that Hammill was under the influence of alcohol to the extent that it was less safe for him to operate the jet ski and placed him under arrest. The officer read the Georgia Implied Consent Warning for persons over the age of 21 to Hammill and requested that he take a State-administered breath test and blood test. According to the officer, he planned to take Hammill to the jail first for the breath test and, if the test was not positive for alcohol, then to the hospital for a blood test. Hammill initially did not respond to the officer's request but later refused to take the breath test on the Intoxilyzer 5000 at the jail. At that point, the officer decided not to take Hammill to the hospital for a blood test because “he had already refused the first test.”

Hammill was indicted and tried before a jury on two counts of serious injury by vessel, one count of reckless operation of a vessel, and one count of operating a vessel while under the influence of alcohol. The State established the facts supporting its case as set out above through the testimony of the victim, the DNR officer, the emergency response personnel, and the hospital neurosurgeon who treated the victim. The State also introduced the photographs of the jet skis taken by the DHR officer and the video recording of the officer's interaction with Hammill, including Hammill's performance of the field sobriety tests and his refusal to take the Alcosensor breath test and the State-administered breath test at the jail.

In contrast, Hammill called as defense witnesses the victim's boyfriend, the boyfriend's parents, and the pontoon boat owner in an effort to show that he had not been impaired by alcohol or recklessly operating the jet ski. Hammill also called a defense expert in field sobriety testing in an effort to cast doubt on the manner in which the DHR officer had performed the field sobriety tests. Hammill elected not to testify.

After hearing the conflicting testimony and viewing the photographs and video recording, the jury found Hammill guilty of the charged offenses. Hammill filed a motion for new trial, which the trial court denied, resulting in this appeal.

1. Challenging the sufficiency of the evidence, Hammill contends that his convictions for serious injury by vehicle must be reversed because the State failed to prove the essential...