Smith v. State

319 Ga.App. 164

735 S.E.2d 153

SMITH

v.The STATE.

No. A12A1471.

Court of Appeals of Georgia.

Nov. 30, 2012.

Kenneth Wayne Sheppard, for Appellant.

Robert D. James Jr., Daniel James Quinn, for Appellee.

RAY, Judge.

After a jury trial, Nicole Smith was convicted of two counts of first degree homicide by vehicle,¹ one count of forgery,² one count of reckless driving,³ and one count of giving a false name. ⁴ SMITH APPEALS THE denial of her motion for new trial, contending that the evidence was insufficient to sustain her conviction and that the trial court erred in refusingto allow her to impeach a prosecution witness with evidence of prior felony convictions and pending charges, erred in allowing prejudicial and irrelevant testimony, erred in allowing the admission of prejudicial character evidence, and erred in improperly charging the jury. For the reasons that follow, we affirm.

1. The evidence was sufficient to support the guilty verdict as to all charges. When reviewing a criminal conviction,

the evidence must be construed in a light most favorable to the verdict, and [Smith] no longer enjoys a presumption of innocence. In evaluating the sufficiency of the evidence to support a conviction, we do not weigh the evidence or determine witness credibility, but only determine whether a rational trier of fact could have found the defendant guilty of the charged offenses beyond a reasonable doubt.⁵

So construed, the evidence shows that on April 9, 2006, Smith had been spending the night with her sister, Falisha Scott, in Lithonia. While Scott was sleeping, Smith borrowed Scott's Ford Trailblazer SUV without her knowledge or permission.

At approximately 3:00 a.m., Smith was driving the Trailblazer northbound on I–285 at a high rate of speed when she struck the rear of a slower moving Nissan Sentra occupied by Constance Daniel and Charisma Sanders. Smith never applied her brakes before the collision and, in fact, had been accelerating at the time of impact. The impact sent the victims' Sentra into the median wall, where it rebounded and spun back out into oncoming traffic. A Lexus SUV then hit the Sentra head on, killing Daniel and critically injuring Sanders. Sanders was taken to a hospital immediately after the crash, but she died from her injuries 20 days later.

Jimmy Lottie, who had been driving alongside the Sentra at the time of the accident, testified that he was driving northbound in the far right lane of I–285 when he looked in his rear-view mirror and saw a vehicle approaching at a high rate of speed. He observed the speeding vehicle crash into the rear of the Sentra, sending it into the median wall and back out into traffic. Lottie testified that the Sentra's headlights, which had been functioning normally prior to the accident, were knocked out when the Sentra collided with the median wall. The Sentra came to a rest facing oncoming traffic with its headlights out. Lottie pulled over and ran across the interstate to the median wall to render assistance, but another car struck the Sentra head on before he could reach it.

Jason Ouimette was driving northbound on I–285 in the second lane from the median wall when he observed smoke, debris, and what he believed to be a “chunk of metal” just ahead in the lane closest to the median wall. The chunk of metal was the Sentra. Darius Vaughn was driving a Lexus SUV in the left lane beside Ouimette. Both Ouimette and Vaughn slammed on the brakes, but only Ouimette managed to avoid hitting the Sentra. Vaughn testified that he did not see the Sentra until he was right up on it. Vaughn further testified that he could not avoid hitting the Sentra because it was blocking the two left lanes of the interstate and Ouimette's car was to his right.

Officer C.E. Flood, a DeKalb County police officer, was the first to respond to the accident scene. Officer Flood talked to the witnesses present and ascertained that the Trailblazer driven by Smith had initiated the accident by hitting the rear of the Sentra. When Smith was questioned by law enforcement at the scene, she admitted that she was the driver of the Trailblazer but identified herself as “Falisha Scott.” When Smith was taken to the police station to be questioned further about the accident, she was given a Miranda form and advised of her rights. Smith signed her name as “Falisha Scott” on the Miranda form, as well as on her written statement.

During the subsequent investigation of the accident, Donald Shaver, an accident reconstruction expert, retrieved crash data from the Trailblazer's sensing diagnostic module (SDM). The SDM records the change in the velocity of the vehicle resulting from the initial impact of the crash. The SDM also provides the speed of the vehicle during the last five seconds before the crash and indicates whether the brakes were applied during that time. The data retrieved by Shaver indicated that the Trailblazer was accelerating from 87 m.p.h. to 91 m.p.h. during the last five seconds before impact, and that the brakes were never applied. Shaver testified that his analysis of the SDM data, combined with the physical evidence on the vehicles, witness statements, photos, and the investigative reports and diagrams of the accident, indicate that the Trailblazer was moving at the speed of 90 m.p.h. and approximately 30 m.p.h. faster than the Sentra at the time of impact.

Detective Charles Thomas, the DeKalb County police officer who investigated the accident, testified that he received a phone call from Scott the day after the accident. It was at that time that he discovered that Smith had taken Scott's Trailblazer without her permission and had used Scott's name.

Smith did not testify at trial, but relied on her own accident reconstruction expert who testified that the accident could not have occurred in the manner described by the witnesses, police officers, and the State's accident reconstruction experts.

This evidence was sufficient for the jury to reject Smith's claims that her expert's testimony proved that she was not driving recklessly and that most of the damage to the victims' car was caused when it struck the median wall, ⁶ and to find that Smith was guilty of two counts of first degree vehicular homicide,⁷ one count of reckless driving,⁸ one count of forgery,⁹ and one count of giving a false name.¹⁰

2. Smith contends that the trial court erred in refusing to allow her to impeach the State's witness, Jimmy Lottie, with his 1995 and 1998 drug convictions.

Pursuant to OCGA § 24–9–84.1(a)(1),

[f]or the purpose of attacking the credibility of a witness ... [e]vidence that a witness has been convicted of a crime shall be admitted if the crime was punishable by ... imprisonment of one year or more under the law under which the witness was convicted if the court determines that the probative value of admitting the evidence outweighs its prejudicial effect to the witness.¹¹

However, evidence of such a conviction is not admissible

if a period of more than ten years has elapsed since the date of the conviction or of the release of the witness ... from the confinement imposed for that conviction, whichever is the later date, unless the court determines, in the interest of justice, that the probative value of the conviction supported by specific facts and circumstances substantially outweighs its prejudicial effect.¹²

Finding that Lottie's 1995 drug conviction occurred more than ten years ago and that its probative value did not substantially outweigh its prejudicial effect, the trial court refused to allow evidence of the conviction for impeachment purposes. In doing so, the trial court noted that it did not believe that a drug conviction was relevant to Lottie's testimony in his capacity as an eyewitness to an automobile accident.¹³ Further, the importance of Lottie's credibility was minimized by the fact that his testimony merely corroborated other overwhelming evidence regarding how the accident occurred. We find that the trial court did not abuse its discretion in finding Lottie's 1995 conviction inadmissible under OCGA § 24–9–84.1(b).¹⁴

With regard to Lottie's 1998 drug conviction, the trial court initially applied the wrong standard for determining the admissibility of this conviction. Applying the analysis set forth in OCGA § 24–9–84.1(b), the trial court stated that the probative value of the 1998 conviction did not “substantially” outweigh its prejudicial effect. However, the 1998 conviction was not outside the ten-year time limitation because Lottie had been released from prison seven years before Smith's trial.¹⁵ Thus, the appropriate standard for the admissibilityof this conviction, as set forth in OCGA § 24–9–84.1(a)(1), is whether the probative value merely outweighs its prejudicial effect. However, the trial court clarified its ruling and applied the correct standard in its order denying Smith's motion for new trial. ¹⁶ We find no error.

3. Smith argues, and the State concedes, that the trial court erred in refusing to allow Smith to cross-examine Lottie about his pending drug charge in Indiana. However, because we find that the error did not harm Smith's defense, we affirm.

Smith was permitted to cross-examine Lottie outside the presence of the jury regarding his pending charge of possession of cocaine in Indiana. Smith attempted to elicit testimony that Lottie may have been testifying favorably towards the State because he hoped that it may have some beneficial effect on the disposition of the pending drug charge. However, Lottie stated unequivocally that he had no hope of benefitting from providing testimony in this case. The trial court ruled that Smith would not be allowed to cross-examine Lottie regarding the subject in front of the jury, and Smith objected.

On appeal, Smith contends that this limitation on her cross-examination of Lottie prevented her from showing that Lottie had a reason to be biased against her, thereby impeaching his credibility. “[T]he...