Dunagan v. State

667 S.E.2d 446, 293 Ga. App. 600, 2008 Fulton County D. Rep. 3124, 2008 Ga. App. LEXIS 1031

• Court: Court of Appeals of Georgia
• Decided: September 19, 2008
• Docket: A07A0365
• Status: Published

Opinion

Barnes, Chief Judge.

In Dunagan v. State, 283 Ga. 501 (661 SE2d 525) (2008), the Supreme Court reversed Division 2 of this court’s opinion in Dunagan v. State, 286 Ga. App. 668, 670 (2) (649 SE2d 765) (2007). The Supreme Court held that the trial court abused its discretion in granting the State’s motion in limine to exclude Dunagan’s evidence that the intersection was inherently dangerous, and remanded to this court for further consideration.

Because evidence that the intersection was inherently dangerous was Dunagan’s sole defense in refuting evidence of his criminal negligence, its exclusion was harmful error. See Gibson v. State, 280 Ga. App. 435, 436 (1) (634 SE2d 204) (2006) (homicide by vehicle conviction reversed and remanded because trial counsel failed to introduce evidence of intersection signal malfunctions); Johnson v. State, 246 Ga. App. 239, 242 (5) (539 SE2d 914) (2000) (exclusion of evidence regarding sole defense was harmful error).

Accordingly, our judgment in this case is vacated, the judgment of the Supreme Court is made the judgment of this court, Dunagan’s conviction is reversed, and this case is remanded for further proceedings consistent with this opinion.

Judgment reversed and case remanded.

Smith, P. J., and Miller, J., concur. Stephen F. Lanier, H. Maddox Kilgore, for appellant. Leigh E. Patterson, District Attorney, C. Stephen Cox, Assistant District Attorney, for appellee.