THIRD DIVISION
MCFADDEN, C. J.,
DOYLE, P. J., and HODGES, J.
NOTICE: Motions for reconsideration must be
physically received in our clerk’s office within ten
days of the date of decision to be deemed timely filed.
https://www.gaappeals.us/rules
DEADLINES ARE NO LONGER TOLLED IN THIS
COURT. ALL FILINGS MUST BE SUBMITTED WITHIN
THE TIMES SET BY OUR COURT RULES.
June 15, 2020
In the Court of Appeals of Georgia
A20A0512. SMITH v. THE STATE. DO-019 C
DOYLE, Presiding Judge.
Following a jury trial, Quincy A. Smith was convicted of first degree vehicular
homicide1 predicated on driving under the influence (“DUI”) per se.2 He appeals his
conviction, contending that the trial court erred by: (1) admitting evidence of a prior
arrest for DUI under OCGA § 24-4-404 (b); (2) denying his motion to suppress
evidence from his roadside encounter with police; (3) allowing the State to impeach
him with statements he made during a prior bond hearing; and (4) denying his request
1
OCGA § 40-6-393 (a).
2
OCGA § 40-60-391 (a) (5). Smith also was found guilty of a second count of
vehicular homicide based on DUI less safe (OCGA § 40-6-391 (a) (1)) as well as a
corresponding DUI-less-safe count. All of the counts merged into the vehicular
homicide based on the DUI-per-se count.
for a jury instruction on proximate cause. For the reasons that follow, we affirm.
Construed in favor of the verdict,3 the evidence shows that in March 2015,
Smith’s wife woke him up to drive her to church at approximately 7:00 a.m. After
dropping off his wife, Smith began to make the short return trip home, and as he
turned left into his subdivision, he failed to yield to an oncoming motorcyclist,
causing the operator to slam into the passenger side of his vehicle. The motorcyclist
died at the scene.
Smith immediately maneuvered his vehicle back to the crash site where he
checked the victim, who was motionless. Shortly thereafter, other drivers stopped to
render aid, and law enforcement officers soon arrived. Sheriff’s Deputy Joseph
Pounds was among the first to arrive, and he spoke with Smith, who stated that he
was making the left turn and did not see the motorcyclist. Pounds viewed the damage
to Smith’s vehicle as consistent with an impact to the passenger side, and Pounds
observed the odor of alcohol on Smith’s breath. Based on this, Pounds proceeded to
secure the scene and called the Georgia State Patrol to investigate.
3
See Short v. State, 234 Ga. App. 633, 634 (1) (507 SE2d 514) (1998).
2
State Trooper Sheldon Osby responded to the call and spoke first to Pounds,
who stated that Smith was “possibly impaired,” and then he spoke to Smith, who was
waiting in Osby’s vehicle due to rain. Smith explained to Osby that he turned left in
front of the motorcycle, and the trooper, who was trained in DUI investigation and
field sobriety evaluations, noticed a strong odor of alcoholic beverage from Smith’s
breath. Osby asked Smith about the odor, and Smith replied that he had consumed
two beers approximately two hours prior to driving. Osby then asked if Smith would
submit to a field sobriety evaluation, and Smith agreed. Smith performed poorly on
each phase of the field sobriety evaluation, and his breath indicated a positive result
for alcohol based on an Alco-Sensor test. Based on this, Osby placed Smith under
arrest and read him the implied consent warning for additional testing, and Smith
agreed to a blood test for alcohol.
Another officer transported Smith to the local jail to have his blood drawn,
which occurred at approximately 8:47 a.m., approximately one-and-a-half hours after
the collision. The result of the blood test indicated a blood alcohol concentration
(“BAC”) of .136.
Based on these events, Smith was charged with homicide by vehicle through
DUI less safe (Count 1), vehicular homicide through DUI per se (Count 2), DUI less
3
safe (Count 3), and DUI per se (Count 4). A jury found him guilty of all counts, and
the trial court entered a 12-year sentence on Count 2, merging the remaining counts
into that count. Smith now appeals.
1. Smith contends that the trial court erred by admitting evidence of a prior
DUI arrest pursuant to OCGA § 24-4-404 (b). Based on the record in this case, this
enumeration presents no basis for reversal.
Under OCGA §§ 24-4-404 (b) and 24-4-403,
[e]vidence of other crimes, wrongs, or acts shall not be admissible to
prove the character of a person in order to show action in conformity
therewith[, but such] extrinsic act evidence may be admitted if a
three-part test is met: (1) the evidence is relevant to an issue in the case
other than the defendant’s character, (2) the probative value is not
substantially outweighed by the danger of unfair prejudice as required
by Rule 403, and (3) there is sufficient proof for a jury to find by a
preponderance of the evidence that the defendant committed the prior
act.4
Prior to trial, the State provided notice of its intent to introduce evidence that
Smith was arrested in June 2014 after an officer observed him driving erratically with
an injury to his head, a broken windshield, and a road sign “wrapped around [his]
4
Jones v. State, 301 Ga. 544, 544 (802 SE2d 234) (2017), quoting OCGA § 24-
4-404 (b) and citing Olds v. State, 299 Ga. 65 (2) (786 SE2d 633) (2016).
4
vehicle.” In his roadside interaction with Smith, the officer observed an odor of
alcohol on Smith’s breath and, based on his interaction with Smith, believed him to
be “drunk.” Smith unsuccessfully moved in limine to exclude this evidence, and at
trial, the court admitted the evidence for the purpose of proving Smith’s knowledge,
intent, and absence of mistake or accident. Smith now asserts that this was error.
As a threshold matter, we note that Smith was only sentenced on Count 2, i.e.,
first degree vehicular homicide based on DUI per se, and the remaining counts
merged into that count. This results in a conviction only as to Count 2 because the
guilty verdicts on the other counts are not equivalent to a final judgment of
conviction.5 Accordingly, any error as to those counts is moot.6
With respect to the vehicular homicide predicated on DUI per se, the admission
of other acts evidence, even if erroneous, can be harmless if there is overwhelming
evidence to support the guilty verdict such that “it is highly probable that the error did
5
See Slack v. State, 288 Ga. 659, 661 (706 SE2d 447) (2011) (“[U]nder our
criminal code, a ‘conviction’ is defined as including ‘a final judgment of conviction
entered upon a verdict or finding of guilty of a crime or upon a plea of guilty.’”),
quoting OCGA § 16-1-3 (4). See also Collins v. State, 327 Ga. App. 590, 592 (760
SE2d 606) (2014); Durrance v. State, 319 Ga. App. 866, n. 1 (738 SE2d 692) (2013)
(Defendant “was not convicted of the DUI less safe offense . . . because the trial court
merged [that] offense into the DUI per se charge.”).
6
See Durrance, 319 Ga. App. at 866 n. 2.
5
not contribute to the verdict.”7 For example, in Jones v. State,8 the Supreme Court
examined a DUI-per-se conviction and determined that due to the “very low”
probative value of a prior DUI conviction to show intent, it was error to admit the
evidence in a trial on a new DUI-per-se count.9 Nevertheless, because the conviction
was for DUI per se, and the evidence was uncontroverted that “appellant was driving
his vehicle; appellant admitted he had consumed alcohol that evening; and the breath
tests showed appellant’s BAC was substantially in excess of 0.08 grams . . . the
erroneous admission of the prior DUI was ultimately harmless.”10
Similarly, in the present case, there was clear surveillance video footage
showing the crash, Smith admitted that he was the driver of the vehicle that collided
with the motorcycle and that he had been drinking alcohol before driving, and his
blood test revealed a BAC well in excess of the .08 legal limit. Thus, the evidence
that Smith committed DUI per se was overwhelming. Likewise, there was no dispute
that Smith was driving the vehicle that killed the motorcyclist, thereby causing his
7
See Jones, 301 Ga. at 551 (3).
8
Id.
9
See id. at 549-550 (2).
10
Id. at 551 (3).
6
death.11 Accordingly, pretermitting whether the trial court erred by admitting the prior
DUI arrest, it is highly probable that any resulting error did not contribute to the
guilty verdict as to the vehicular homicide count predicated on DUI per se, and the
impact of such a potential error on the other counts is moot due to merger.12
2. Smith next argues that the trial court erred by denying his motion to suppress
the results of his blood test, field sobriety evaluations, and statements he made to
police at the scene. Specifically, Smith argues that all of the evidence gathered at the
roadside should have been suppressed because he was not Mirandized13 at the time
the evidence was obtained. We disagree.
In reviewing a trial court’s ruling on a motion to suppress, an
appellate court must construe the record in the light most favorable to
the factual findings and judgment of the trial court and accept the trial
court’s findings of disputed facts unless they are clearly erroneous.
11
See OCGA § 40-6-393 (a) (“Any person who, without malice aforethought,
causes the death of another person through the violation of [the DUI statute] . . .
commits the offense of homicide by vehicle in the first degree. . . .”).
12
See Jones, 301 Ga. at 551 (3).
13
See Miranda v. Arizona, 384 U. S. 436 (86 SCt 1602, 16 LE2d 694) (1966).
7
However, the trial court’s application of the law to undisputed facts is
subject to de novo review.14
Here, upon arriving at the scene, Deputy Pounds initially encountered Smith
“standing around” outside of his vehicle and spoke to Smith to determine who was
involved and what had happened. Smith told him that he was returning from dropping
off his wife and “that he was making a left turn into the subdivision and didn’t see the
motorcycle.” Pounds noticed an odor of alcohol on Smith’s breath, and Smith
mentioned that he had been out during the night before his wife woke him up to drive
her to church. By this time, it had begun raining heavily, so Pounds had Smith sit in
the back seat of his police cruiser while they talked further, “to get out of the rain”
and because “I had no room in my front seat.” Pounds testified at the suppression
hearing that during that time, he allowed Smith to get out of his vehicle to urinate and
to smoke a cigarette: “we were trying to stay out of the rain. It’s really raining, so I’m
not trying to get wet. He was you know, he could have stayed out there if he wanted
to, but he got in. But then he gets back out a couple of times, actually.” At no time did
Pounds tell Smith he was under arrest, nor did he place Smith in handcuffs.
14
(Punctuation omitted.) State v. Blazek, 353 Ga. App. 127, 128 (836 SE2d
213) (2019).
8
After approximately 20 minutes, Trooper Osby arrived and escorted Smith to
his patrol vehicle. They spoke while standing in front of Osby’s vehicle, and Smith
explained that he turned left and did not see the oncoming motorcycle. As Smith
spoke, Osby noticed an odor of alcohol coming from Smith’s breath, so he asked if
Smith had been drinking. Smith gave conflicting answers but admitted that he had
consumed “a couple of beers a couple of hours prior to driving.” Osby asked Smith
if he would “submit to a few field sobriety tests,” and Smith agreed to do so. Osby
administered a horizontal gaze nystagmus test, walk and turn, one leg stand, and an
Alco-Sensor test. Based on the results of the field evaluations, each of which readily
indicated impairment (or the presence of alcohol in the breath test), Osby placed
Smith under arrest for DUI. Osby then read him the implied consent warning for a
blood test, and Smith initially declined but immediately changed his mind to take a
blood test: “At first he said no. Then I said, you know, ‘You said no?’ Then he said
yes. I said, ‘Are you sure?’ He said, yes, ‘Yes, I am.’” Smith was then transported to
the local jail, where a blood test was administered.
Smith contends that the statements he made, the field sobriety tests, and the
blood test should have been suppressed because he was never read his Miranda
rights.
9
The requirement to give a Miranda warning does not apply until a
person is actually in custody or otherwise deprived of [his] freedom of
action in some significant way. In making this determination, a court
must examine all of the circumstances surrounding the interrogation, but
the ultimate inquiry is simply whether there was a formal arrest or
restraint on freedom of movement of the degree associated with a formal
arrest. The test for determining whether a person is “in custody” at a
traffic stop is if a reasonable person in the suspect’s position would have
thought the detention would not be temporary. The issue of whether one
is in custody for Miranda purposes is a mixed question of law and fact,
and we will not disturb the trial court’s determination unless it is clearly
erroneous.15
Here, Smith points to the fact that he was seated in the back seat of a police
cruiser, which he argues is tantamount to being formally arrested. But this overlooks
the evidence that he entered the cruiser voluntarily to avoid the rain, was free to leave
the vehicle and did leave to urinate and smoke, and was never handcuffed or told he
was under arrest. Under these circumstances, the record supports a finding that Smith
15
(Footnotes and punctuation omitted.) Parker v. State, 307 Ga. App. 61, 65
(3) (704 SE2d 438) (2010).
10
was not “in custody” to the extent that a Miranda warning was required before
officers spoke with Smith to ascertain the situation.16
Further, with respect to the breath test, “because a defendant’s Fifth
Amendment right against self-incrimination is not implicated by a State-administered
breath test, the absence of Miranda warnings does not require suppression of [a
defendant’s] consent to the breath test under federal [Constitutional] law.”17 Likewise,
“neither the Georgia right against compelled self-incrimination, the Georgia right to
due process, nor a Georgia statute prohibiting compelled self-incrimination requires
law enforcement to provide similar warnings to persons arrested for DUI before
asking them to submit to a breath test.”18 And the record supports a finding that
16
See id. (“It is well established that Miranda warnings are not required while
an investigating officer conducts preliminary questioning or field sobriety tests, but
apply only after a DUI suspect is arrested.”) (punctuation omitted). See also State v.
Pastorini, 222 Ga. App. 316, 317 (1) (474 SE2d 122) (1996) (“[R]oadside
questioning during the investigation of a routine traffic incident generally does not
constitute a custodial situation.”) (citation omitted), overruled on other grounds by
State v. Turnquest, 305 Ga. 758, 775 n.15 (827 SE2d 865) (2019).
17
(Punctuation omitted.) Fofanah v. State, 351 Ga. App. 632, 634 (1) (832
SE2d 449) (2019).
18
Turnquest, 305 Ga. at 758.
11
Smith’s subsequent blood test was properly and voluntarily administered.
Accordingly, this enumeration is without merit.
3. Smith next argues that the trial court erred by allowing the State to impeach
him with statements he made to a magistrate during his bond hearing on this case
because he was not Mirandized when speaking to the magistrate. Prior to trial, the
State and Smith agreed that the State would not introduce those statements during the
State’s case-in-chief, but when Smith testified and minimized his alcohol use at the
relevant time, the State sought to impeach him with contrary statements he made to
the magistrate. Following a Jackson-Denno19 hearing outside the presence of the jury,
the trial court allowed the State to use the statements to impeach Smith, giving the
jury an instruction about the permissible consideration of the impeachment
evidence.20 Smith now contends the trial court erred by doing so.
19
378 U. S. 368 (84 SCt 1774, 12 LE2d 908) (1964).
20
In his appellate brief, Smith makes a passing reference to an argument that
the State’s agreement not to use the bond hearing statements impacted his decision
to testify, but he does not elaborate with authority or explain how, aside from
impeachment, his decision to testify harmed him. He explained to the jury that he
elected to testify because “I just wanted to tell my side of the story. . . . [T]his has
been going on . . . since 2015[,] and I haven’t been able to tell anybody what
happened. . . . I don’t want it to sound like it’s just me, . . . because there’s another
family involved in this, but I just wanted to tell my side of the story because I’ve
heard through people saying things that I just don’t want to speak about, but . . . I
12
The evidence at issue came during Smith’s bond hearing after he was arrested.
At the outset of the hearing, the magistrate told Smith, “keep in mind anything you
say can be used as evidence against you,” but no formal Miranda warning was given.
When the magistrate asked how much alcohol he had consumed, Smith equivocated,
first saying one or two beers and then saying four at the most. Smith also told the
magistrate that he must have misjudged distance when he turned left into the path of
the oncoming motorcyclist. At trial, Smith testified in his defense, and after the trial
court determined that the statements at issue were made voluntarily, the State used
the statements he made to the magistrate to impeach his trial testimony that (a) he
never saw the motorcyclist, and (b) he had only consumed two beers.
Pretermitting whether the statements at issue arose from a custodial
interrogation for purposes of Miranda, this Court has held that “even if a statement
cannot be admitted in order to establish guilt because it violates the prophylactic rule
enunciated in Miranda, it is possible to admit such a statement for purposes of
wanted to be able to give an account of what happened[,] and I just wanted to speak
for once.” Smith was able to provide a favorable account of the events to the jury,
explain his clear-headedness on the morning of the collision, minimize his
consumption of alcohol, and express his remorse at the accidental loss of life.
Accordingly, this passing reference to any impact on his decision to testify presents
no basis for reversal.
13
impeachment,” if the statement was made voluntarily.21 This requires a determination
whether Smith made the statements without “the slightest hope of benefit or remotest
fear of injury.”22 This is interpreted “not in the colloquial sense, but as it is
understood in the context within the statute . . . [,i.e., referring] to promises related
to reduced criminal punishment — a shorter sentence, lesser charges, or no charges
at all.”23
Based on a review of an audio recording of the bond hearing, it is plain that the
magistrate did not make any threat or promise to Smith when she engaged in the
colloquy with Smith about the circumstances of his arrest. She informally advised
21
Babbitt v. State, 337 Ga. App. 553, 554 (1) (a) (789 SE2d 205) (2016). See
also Linares v. State, 266 Ga. 812, 813 (2) (471 SE2d 208) (1996) (“Although a
statement obtained in violation of Miranda may not be used in the prosecution’s
case-in-chief, it may be used to impeach the defendant’s credibility if its
trustworthiness meets legal standards. This test means that a court must find that the
statement is voluntary under traditional due process analysis.”) (footnote omitted).
Compare State v. Orr, 305 Ga. 729, 733 n.2 (827 SE2d 892) (2019) (“[D]ue process
under the Fourteenth Amendment prohibits the government from using, for
impeachment purposes, evidence that the defendant exercised his right to remain
silent after he was arrested and advised of his right to remain silent pursuant to
Miranda.”).
22
OCGA § 24-8-824. See Babbitt, 337 Ga. App. at 555 (1) (a).
23
(Punctuation omitted.) Dawson v. State, __ Ga. __, __ (3) (Case No.
S20A0217, decided May 4, 2020).
14
Smith that his statements could be used as evidence against him, and she gave no
indication that any admissions would bear on her decision to grant or deny bond.
Under the totality of these circumstances, the trial court did not err by finding that
Smith’s statements at the bond hearing were made voluntarily. Accordingly, the trial
court did not abuse its discretion by allowing the State to impeach Smith’s trial
testimony with his prior inconsistent statements from the bond hearing.
4. Last, Smith contends that the trial court erred by failing to give his requested
jury instruction on proximate cause, specifically:
In prosecutions for vehicular homicide, the State must prove that the
defendant’s conduct of driving under the influence of alcohol to was the
“legal” or “proximate” cause as well as the cause in fact, of the death.
And although contributory negligence, as such, is not a defense in a
vehicular homicide case, the conduct of the decedent whether negligent
or not, is material to the extent that it bears upon the question of whether
under all the circumstances of the case the defendant was negligent, or,
if negligent, whether the decedent’s negligence was the sole proximate
cause of the injury, or whether the injury or death resulted from an
unavoidable accident.
15
We review jury instructions “as a whole in determining whether the charges
contained error. And it is not reversible error to fail to charge in the exact language
requested when the charge given adequately covers the correct legal principles.”24
Here, the trial court instructed the jury as follows, in relevant part:
A person commits the offense of homicide by vehicle in the first degree
when without malice aforethought that person causes the death of
another person while there is an alcohol concentration of 0.08 grams or
more in the person’s blood at any time within three hours after such
driving ended. Proximate cause exists when the defendant’s act played
a substantial part in bringing about or actually causing the victim’s
death, and the death was either a direct result or a reasonably probable
consequence of the act. If you find based on all the facts and
circumstances of this case that the defendant’s conduct was a substantial
factor in causing the victim’s death, then any negligence on the part of
the decedent would be irrelevant.
This was a correct statement of the law and adequately recited the principle of
proximate cause, even as it relates to the conduct of the decedent. As noted by the
trial court, a nearly identical charge was deemed adequate in Hartzler v. State,25 and
24
(Footnotes and punctuation omitted.) Johnson v. State, 341 Ga. App. 425,
431 (2) (801 SE2d 294) (2017).
25
332 Ga. App. 674, 680 (3) (774 SE2d 738) (2015).
16
the trial court’s charge in this case, as a whole, properly encompassed the concept of
causation with respect to vehicular manslaughter. “[A]s long as the defendant’s
negligence proximately caused the injury of another, the crime has been committed.
. . . Unlike the civil context, in the criminal context it simply is not relevant that the
victim was negligent unless the defendant’s conduct did not substantially contribute
to the cause of the injury.”26 Accordingly, this enumeration presents no basis for
reversal.
Judgment affirmed. McFadden, C. J., and Hodges, J., concur.
26
(Punctuation and emphasis omitted.) Corbett v. State, 277 Ga. App. 715, 718
(1) (b) (627 SE2d 365) (2006).
17