Searching over 5,500,000 cases.


searching
Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.

Smith v. State

Court of Appeals of Georgia, Third Division

September 7, 2017

SMITH
v.
THE STATE.

          ELLINGTON, P. J., ANDREWS and RICKMAN, JJ.

          RICKMAN, JUDGE.

         Following a jury trial, Quincy Alexander Smith was convicted of homicide by vehicle in the first degree for causing the death of another person while driving with an alcohol concentration of 0.08 grams or more (DUI-per se). He argues, among other things, that the trial court committed reversible error in refusing to charge the jury on the lesser included offense of homicide by vehicle in the second degree and in admitting extrinsic act evidence. For the following reasons, we reverse Smith's conviction and remand this case for a new trial.

On appeal from a criminal conviction, we view the evidence in the light most favorable to support the jury's verdict, and the defendant no longer enjoys a presumption of innocence. We do not weigh the evidence or judge the credibility of the witnesses, but determine only whether the evidence authorized the jury to find the defendant guilty of the crimes beyond a reasonable doubt in accordance with the standard set forth in Jackson v. Virginia, 443 U.S. 307 (99 S.Ct. 2781, 61 L.Ed.2d 560) (1979).

(Citation omitted.) Laster v. State, 340 Ga.App. 96, 97 (796 S.E.2d 484) (2017).

         So construed, the evidence adduced at trial showed that shortly after 7:00 a.m. on March 1, 2015, Smith was returning home from dropping off his wife and children at a friend's house. There was a light, misty rain and a low fog at that time. Upon returning to his subdivision, Smith turned left into the path of a motorcycle being driven by the victim, resulting in the motorcycle colliding with the rear passenger side of Smith's vehicle. The victim was killed in the collision.

         The ensuing investigation revealed that Smith had been consuming alcohol the previous night and had returned home sometime between 2:00 and 3:00 a.m. He slept before being awakened to transport his wife and children.

         Although Smith exhibited no visual signs of impairment at the scene, several law enforcement officers noticed an odor of alcohol emanating from his person and he admitted to having consumed alcohol sometime prior to the collision. A state trooper conducted field sobriety tests at the scene and concluded that Smith was driving under the influence of alcohol to the extent that he was less safe to drive (DUI-less safe), and a blood test conducted more than an hour after the incident revealed Smith's alcohol content to be .136.

         Smith was arrested and charged with homicide by vehicle in the first degree for causing the death of another person while DUI-per se, homicide by vehicle in the first degree for causing the death of another person while DUI-less safe, and one count each of DUI-per se and DUI-less safe. See OCGA §§ 40-6-391 (a) (2); 40-6-391 (a) (5); 40-3-393 (a).

         During the ensuing trial, the trial court admitted, over Smith's objection, extrinsic act evidence related to a prior arrest. Specifically, the State presented evidence that approximately eight months prior to the instant collision, a police officer had observed Smith driving around 6:00 a.m. with what appeared to be a road sign embedded into the front of the vehicle. Smith's windshield contained spiderweb-type cracking and Smith had a visible wound on his head. Although the officer smelled an odor of alcohol emanating from Smith and he admitted to drinking alcohol two hours prior, Smith refused to submit to a State-administered test, and field sobriety tests were not conducted due to his head injury. Smith was arrested and originally accused of reckless driving. After he was indicted in the instant case, however, the prosecuting attorney amended the accusation and charged Smith with DUI-less safe.

         In his written requests to charge, Smith requested that the jury be permitted to consider the lesser included offense of second degree vehicular homicide, and argued during the charge conference that there was some evidence from which the jury could conclude that the victim's death was caused by Smith's failure to yield as opposed to his DUI. The State objected, and the trial court refused to give the charge. Smith preserved his objection to the trial court's failure to give the charge.

         The jury found Smith guilty on all charges, and the trial court merged the latter three charges into his conviction for first-degree vehicular homicide while DUI-per se for sentencing purposes. This appeal follows.

         1. Smith contends that the trial court erred in refusing to charge the jury on the lesser included offense of vehicular homicide in the second degree pursuant to OCGA § 40-6-393 (c). We agree.

         Under Georgia law, one commits the offense of vehicular homicide in the first degree when he or she, without malice aforethought, causes the death of another person through the violation of certain specified traffic laws, including DUI. See OCGA § 40-6-383 (a). The offense of vehicular homicide in the second degree is committed when one, without an intention to do so, causes the death of another person by violating any other Title 40 traffic law not specified in OCGA § 40-6-383 (a). See OCGA § 40-6-393 (c). "Because the difference between first and second degree vehicular homicide is the culpability of the predicate traffic offense, second degree vehicular homicide is considered a lesser included ...


Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.