Crowe v. State

578 S.E.2d 134, 259 Ga. App. 780, 2003 Ga. App. LEXIS 151
CourtCourt of Appeals of Georgia
DecidedFebruary 6, 2003
DocketA03A0463
StatusPublished
Cited by2 cases

This text of 578 S.E.2d 134 (Crowe v. State) is published on Counsel Stack Legal Research, covering Court of Appeals of Georgia primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Crowe v. State, 578 S.E.2d 134, 259 Ga. App. 780, 2003 Ga. App. LEXIS 151 (Ga. Ct. App. 2003).

Opinion

Eldridge, Judge.

A Rockdale County jury found Jerry Lewis Crowe guilty of two counts of misdemeanor, second degree vehicular homicide, which charges arose when Crowe backed his flatbed wrecker truck onto Highway 20 in Conyers, striking an oncoming vehicle driven by Lynn Lynch, and resulting in the deaths of two teenagers who were passengers in Lynch’s vehicle. Crowe appeals, claiming that the trial court erred in granting the State’s motion in limine as to the chemical test results of Lynch’s blood and urine; that the court erred in permitting the State to introduce evidence related to Crowe’s use of rotational lights on his wrecker; that the trial court erred in admitting as [781]*781“actual evidence” computerized diagrams recreating the collision and permitting such diagrams to go out with the. jury during deliberations; and that the court erred in refusing to charge the jury on the law of accident or misfortune.1 Upon review of the errors as enumerated, we affirm Crowe’s convictions.

1. Pursuant to OCGA § 40-5-55 (a), Lynch submitted to chemical testing of her blood and urine. Crowe’s first four enumerations of error challenge the trial court’s ruling with regard to the admission of the results of the chemical tests.2 We find no error.

Lynch’s urinalysis revealed unquantified traces of THC metabolites (marijuana), bupropion (Wellbutrin), and hydrocodone (Percocet), which substances were of insufficient quantities to appear in her blood. Blood test results were positive for a trace of butalbitol (Esgic) in a quantity less than the lowest calibrator used by the Georgia Bureau of Investigation Crime Laboratory (“GBI crime lab”); no other substances were detected in Lynch’s blood or urine.

Prior to the start of trial, the State made a motion in limine on the basis of relevancy with regard to the results of Lynch’s chemical tests. Crowe made argument to the trial court regarding the relevance of the tests as showing Lynch was a less safe driver; however, Crowe was not prepared to put forth factual evidence in support of such argument. The trial court granted the motion in limine until such time as Crowe could put forth evidence that the chemical tests at issue showed Lynch’s driving was impaired by the drugs in her system:

Well, what the Court is going to do is grant the motion in limine at this point. All that means is that before you can introduce the evidence, you are going to have to present evidence before the Court outside the jury’s presence, or conduct a hearing on that, and see if you can make sufficient evidence to show that it’s relevant.

After jury selection and opening argument, an evidentiary hearing was held outside the presence of the jury. Crowe called as an expert witness Dr. Donald Dicks, a forensic toxicologist with the GBI crime lab who supervised the chemical tests performed on Lynch’s blood and urine. Dr. Dicks testified that the substances found solely as a result of the urinalysis were no longer in Lynch’s bloodstream so [782]*782as to affect her brain and central nervous system, but were found in unquantified amounts in her urine as waste product; he stated unequivocally that the substances detected in Lynch’s urine could not have affected her driving ability. Dr. Dicks further testified that the butalbitol found in Lynch’s blood was a trace amount and that he was “highly doubtful that it would have affected her”; however, he could not “say for certainty that it would not have affected her.” Crowe called no other witness to support admission of the chemical tests results and relied solely on evidence adduced from Dr. Dicks.

After hearing this evidence and the arguments of the parties, the trial court granted the State’s motion in limine as to the results of Lynch’s urinalysis. The court denied the motion as to the results of Lynch’s blood test and permitted evidence of the butalbitol found pursuant to such test to go before the jury.

(a) Crowe claims the trial court erred in granting the State’s motion in limine as to the results of the chemical test of Lynch’s urine. We disagree.

Evidence of a witness’ use of drugs is improper character evidence, unless the party who wishes to introduce such evidence shows its relevance to the issues being tried by the jury.3 Without a showing of relevance, this character evidence would be inadmissible as gratuitously interjecting the witness’ drug use simply to prejudice the jury.4 Citing Nash v. State5 and Harridge v. State,6 Crowe claims relevance because evidence that Lynch used drugs and thus had drug metabolites in her urine might lead a jury to determine that she was a less safe driver at the time of the collision, thereby creating reasonable doubt that Crowe’s actions were the sole proximate cause of the victims’ deaths; Crowe argues that it was up to a jury to determine whether the substances found in Lynch’s urine impaired her driving ability.

It is axiomatic, however, that a jury’s determination must have a factual basis. A factual determination of driving ability as revealed through toxicological analysis is “beyond the ken” of the average juror and thus is established through expert testimony.7 In this case, no facts were established which would permit a jury to conclude that, at the time of the incident, Lynch’s driving ability was impaired by the substances found in her urine. Crowe’s own expert evidence [783]*783showed the contrary, i.e., that the drugs detected by the urinalysis did not affect Lynch’s driving ability.

Our decisions in both Nash v. State, supra, and Harridge v. State, supra, upon which Crowe relies, are clearly distinguishable. In Nash, test results of the victim’s blood, not urine, showed the presence of marijuana metabolites, and an expert witness testified that such substance could affect perceptions while driving; in Harridge, a Brady8 violation case, marijuana was detected in the victim’s blood and urine, and the State failed to turn such information over to the defense, thereby precluding the possibility that Harridge could obtain favorable expert testimony as to the victim’s impairment.

Here, in contrast to Harridge, chemical test results were turned over to the defense, and Crowe obtained expert testimony thereon (albeit such testimony was unfavorable to his cause). And, contrary to Nash, Crowe’s expert testified that the drug metabolites found in Lynch’s urine would not have affected her ability to drive; that the substances were found in Lynch’s urine only, not in her blood, and thus were out of her central nervous system. In this case, without any factual basis upon which a jury could conclude Lynch was a less safe driver at the time of the collision, the trial court did not err in finding that Crowe failed to demonstrate the relevance of Lynch’s urinalysis to the issue of the proximate cause of the victims’ deaths so as to permit the jury to hear otherwise inadmissible character evidence.

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Related

Crowe v. State
596 S.E.2d 757 (Court of Appeals of Georgia, 2004)
Crowe v. State
591 S.E.2d 829 (Supreme Court of Georgia, 2004)

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Bluebook (online)
578 S.E.2d 134, 259 Ga. App. 780, 2003 Ga. App. LEXIS 151, Counsel Stack Legal Research, https://law.counselstack.com/opinion/crowe-v-state-gactapp-2003.