Drake v. State

501 S.E.2d 14, 231 Ga. App. 776, 98 Fulton County D. Rep. 1666, 1998 Ga. App. LEXIS 533
CourtCourt of Appeals of Georgia
DecidedMarch 31, 1998
DocketA98A0718
StatusPublished
Cited by3 cases

This text of 501 S.E.2d 14 (Drake 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
Drake v. State, 501 S.E.2d 14, 231 Ga. App. 776, 98 Fulton County D. Rep. 1666, 1998 Ga. App. LEXIS 533 (Ga. Ct. App. 1998).

Opinion

Eldridge, Judge.

The defendant, Ricky Earl Drake, was tried as a recidivist and convicted by a Crisp County jury for the offenses of arson, possession of a firearm by a convicted felon, aggravated assault, fleeing and attempting to elude a police officer, driving under the influence of alcohol, and driving under the influence of diazepam. On November [777]*77713, 1995, the defendant filed a timely motion for new trial. It is from the denial of this motion that the defendant appeals.

1. The defendant contends that the evidence was not sufficient to support the conviction. “On appeal the evidence must be viewed in a light most favorable to the verdict, and [the defendant] no longer enjoys a presumption of innocence; moreover, on appeal this [C]ourt determines evidence sufficiency, and does not weigh the evidence or determine witness credibility. [Cits.]” Grant v. State, 195 Ga. App. 463, 464 (1) (393 SE2d 737) (1990).

Viewed in this light, the evidence shows the following. The defendant and his wife, Lisa Drake, had been separated since August 29, 1994. On the evening of November 17, 1994, Mrs. Drake began to move some of her belongings into a brick, double-wide trailer she had leased on Evergreen Street. Mrs. Drake did not spend that night at her new home on Evergreen Street, but stayed with a male friend. During the early morning hours of November 18, 1994, Mrs. Drake received several phone calls from the defendant, stating that he was at her new home on Evergreen Street. To prove he was at her home, the defendant described the interior of the trailer to Mrs. Drake and stated that her new fireplace “did burn well.” Mrs. Drake verified that he was, in fact, in her home by calling him there on the telephone.

Ronnie Albritton testified at trial that on November 18, 1994, between 8:00 and 8:30 a.m. he was on his way to work and stopped by Mrs. Drake’s new home on Evergreen Street. When he arrived, the defendant was in the yard with a beer in his hand. Albritton talked with the defendant for ten to fifteen minutes. When he left, the defendant was still at Mrs. Drake’s trailer.

A neighbor noticed a black pickup truck with a flat bed leave Mrs. Drake’s trailer sometime before noon on November 18, 1994. A few minutes later, the neighbor noticed smoke coming from the vicinity of the trailer. As the smoke became heavier, he could tell it was coming from one of the roof vents and called 911.

The fire department received the call around 11:31 a.m. When the fire department arrived, flames were coming out of the windows on the north front and the west end of the trailer. After an investigation, the fire department determined that the fire had been intentionally set and had been started in several large bags of clothes in the living room-dining room and in a pile of coats and papers in the southeast corner bedroom. The fireplace was not near either location, and the electricity had not been turned on in the trailer. Further, there was no physical evidence that the fire was electrical in nature.

Deputy Lee Brian Hobbs with the Crisp County Sheriff’s Department testified that at approximately 11:30 a.m. on November 18, 1994, he was on patrol when he witnessed a black Ford pickup truck, [778]*778driven by the defendant, run a stop sign at the intersection of Spring Street and Evergreen Street. Deputy Hobbs pursued the pickup truck with his siren and blue lights on. During the chase, the defendant ran several more stop signs; drove at speeds in excess of the speed limits; drove in an erratic manner, crossing the centerline; and threw a beer bottle at the deputy. Twice the defendant pointed a sawed-off shotgun out the driver’s window towards the deputy and, the second time, fired the weapon. When the shotgun discharged, the defendant dropped the shotgun, which was retrieved by the deputy. Sheriff Haralson and other law enforcement officials joined in the pursuit of the defendant. Sheriff Haralson attempted to stop the defendant by shooting out the tires of his truck, but was unsuccessful. Finally, Sheriff Haralson wrecked his patrol car into defendant’s truck to stop him.

After the collision, the defendant did not appear to be injured, but was extremely agitated and refused to be removed from his truck. When deputies attempted to remove him, he kept trying to reach for something inside his truck. There were papers and other items in the truck that kept the deputies from having a clear view of the interior of the truck. However, the deputies could see both a razor or boxcutter and a knife in a black sheath on the floor board of the truck. The deputies handcuffed the defendant’s right hand to the truck’s mirror and used a “haul strap” to hold his left hand out of the window. After spraying the defendant several times with pepper spray, the deputies were finally able to subdue the defendant and take him into custody. The defendant was transported to the hospital where he tested positive for alcohol in his blood at 0.19 grams per deciliter and for diazepam in his blood at 13 micrograms per deciliter.

After his arrest, the defendant made a statement in which he admitted the following: On November 18, 1994, he went to his wife’s trailer with the intent to kill both her and her male friend. When he arrived at the trailer, no one was home, so he gathered up toilet paper and, using a small lighter, started a fire in the living room of the trailer. The defendant then left in his black pickup truck, which had a wooden flat bed. Within a block or two of Mrs. Drake’s trailer, the defendant ran a stop sign, and when he was pursued by the Crisp County deputy, he attempted to elude the officer because he thought there was an active warrant for his arrest. Once the defendant realized that he would not be able to outrun the deputy, he pointed a sawed-off shotgun out the driver’s window and fired the weapon at the deputy’s vehicle. The force of the shotgun discharging the shell caused him to drop the weapon. Mr. Drake further stated that he threw out of the truck’s window papers that had his correct identity on them in the hope that he could get far enough in front of the deputy to stop and abandon the vehicle.

[779]*779Lisa Drake was called as a witness by the defendant. On cross-examination, she testified that the defendant admitted to her that he might have set papers on fire at her trailer and that he fired a shotgun while trying to get away from Deputy Hobbs.

The evidence was sufficient to enable a rational trier of fact to find the defendant guilty beyond a reasonable doubt of the offenses with which he was charged. Jackson v. Virginia, 443 U. S. 307 (99 SC 2781, 61 LE2d 560) (1979).

2. The defendant’s second enumeration of error alleges that the trial court erred in allowing the in-custody statements of the defendant into evidence during the trial because the statements were not made voluntarily. The defendant argues that he was under the influence of alcohol and diazepam at the time of the interview, that he cannot remember giving a statement, and that it took him two days to “return to normal.”

During the Jackson v. Denno1 hearing, the Georgia Bureau of Investigation agent who interviewed the defendant testified that the interview was conducted at approximately 5:20 p.m. on November 18, 1994, approximately six hours after the defendant was arrested and transported to the hospital.

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Related

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708 S.E.2d 283 (Supreme Court of Georgia, 2011)
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689 S.E.2d 53 (Court of Appeals of Georgia, 2009)
Cunrod v. State
526 S.E.2d 900 (Court of Appeals of Georgia, 1999)

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Bluebook (online)
501 S.E.2d 14, 231 Ga. App. 776, 98 Fulton County D. Rep. 1666, 1998 Ga. App. LEXIS 533, Counsel Stack Legal Research, https://law.counselstack.com/opinion/drake-v-state-gactapp-1998.