Newbern v. State

563 S.E.2d 872, 254 Ga. App. 749, 2002 Fulton County D. Rep. 957, 2002 Ga. App. LEXIS 355
CourtCourt of Appeals of Georgia
DecidedMarch 18, 2002
DocketA01A2261
StatusPublished

This text of 563 S.E.2d 872 (Newbern 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
Newbern v. State, 563 S.E.2d 872, 254 Ga. App. 749, 2002 Fulton County D. Rep. 957, 2002 Ga. App. LEXIS 355 (Ga. Ct. App. 2002).

Opinion

Smith, Presiding Judge.

Raymond W. Newbem was found guilty by a jury of two counts of vehicular homicide, two counts of DUI, and failure to drive on the right side of the road. For sentencing, the trial court merged with the first count of vehicular homicide all the remaining counts except driving on the wrong side of the road. Newbern’s amended motion for new trial was denied, and he appeals. He raises claims of ineffective assistance of counsel and failure of the State to prove his identity as [750]*750the driver of the car beyond a reasonable doubt and to a moral certainty. We conclude that the trial court correctly found that New-bern’s counsel was effective, albeit not for the reason stated by the court, and that the jury was authorized to find that the State proved Newbern’s identity as the driver beyond a reasonable doubt. We therefore find no reversible error and affirm.

Construed to support the verdict, the evidence presented at trial showed that Newbem called his friend Steve Rice three or four times, requesting that Rice pick him up at the home of Newbern’s mother-in-law. Eventually, Rice picked up Newbern about 5:00 p.m., and they returned to Rice’s home. They left briefly in Rice’s 1977 black Oldsmobile Cutlass to purchase car parts in Athens. Rice did not lend out his car, but he let Newbern drive his car when he was present, and on the way home, Newbern was allowed to drive. They stopped at a supermarket for some beer. After returning to Rice’s trailer, they parked the car and went to a neighbor’s home to watch NASCAR racing. Because the neighbor did not permit smoking in his home, New-bern stepped outside several times, smoking and talking on a wireless phone. At some point, Newbern left. When Rice and the neighbor heard sirens and observed emergency vehicles passing by, they turned on the neighbor’s scanner and learned a wreck had occurred nearby on Highway 29. At that point, Rice noticed that his car was gone.

Law enforcement officials testified that a two-vehicle accident occurred at 9:00 p.m. Rice’s 1977 Cutlass, traveling north on Highway 29, crossed the centerline and struck the car driven by the victim, causing the victim’s death. Newbern was thrown from the car and into the roadway at the end of a residential driveway. One of the residents of the house was a nurse, and she attempted to assist at the scene. She asked Newbem several questions, trying to determine whether he was oriented, so she could assess whether he had a serious head injury. She testified that Newbern appeared to her to be completely oriented and not confused. She asked Newbern whether he had been alone in the car, and he replied that he had been.

A Madison County sheriff’s deputy was one of the first officers on the scene, and he spoke with Newbern, who was conscious. Newbem also told this deputy that he had been driving and that he was the sole occupant of the car. An emergency medical technician who responded to the crash scene testified that Newbern was conscious and responsive to questions. The EMT testified that Newbem told him he was the car’s driver and that he had been alone. Newbern was removed by ambulance to Athens Regional Medical Center, where a nursing assistant drew blood from him at the direction of a state trooper. Although the nursing assistant did not recognize him, New-bem was alert enough to recognize the assistant as someone he had [751]*751worked with years before at a newspaper. A state trooper who spoke with Newbern at the hospital testified that Newbern appeared to understand their conversation and that his responses made sense. The trooper testified that he was able to carry on a conversation “just like me and you are talking now. I mean, he was — he was laying down. He had some obvious injuries, but he was speaking clearly, coherently. I could understand him. He could understand me.” After reading Newbern his Miranda warnings, the trooper asked him if he had been driving the car, and Newbern first responded that he

had been at a friend’s house, drinking. And that he had left to go to the beer store, and when he left he was driving. And I said did you have any passengers. And he said, no. I said, so you were alone in the vehicle. He said, yes. I asked him how much he had to drink, and he told me he had two beers and one shot of liquor. And I asked him again, so you were driving the vehicle when it crashed. And he paused and he hesitated. And then he finally answered by saying, no, my friend, was driving. And I asked who was the friend, and he would not give me any kind of name. I asked him repeatedly, if you weren’t driving, who was driving. He wouldn’t tell me anything other than just a buddy of his.

After investigation, Newbern was found to be intoxicated.

1. Newbern contends the trial court erred in finding that trial counsel was effective. Newbern’s medical records were never introduced into evidence. He argues that his counsel was ineffective in failing to subpoena hospital personnel who could authenticate these records, which would have showed that he was “confused” following the accident. He maintains that the trial court erred in ruling that defense counsel had a strategic or tactical reason for failing to do so.

In several places, Newbern’s hospital records lend credence to the idea that he was, in fact, confused after the wreck. The “trauma flow sheet,” a record made while Newbern was at the hospital, shows that the person monitoring Newbern’s condition indicated he was “confused,” and even shortly before discharge he was “still unable to state correct month of the year.” In the discharge summary, a doctor noted that Newbern was “unclear about his consciousness at the scene.” The emergency department record indicated Newbern was conscious upon arrival at the hospital, but “somewhat confused and disoriented.”

Newbern argues that showing his confusion was crucial to his defense, showing that he was mistaken when he told several questioners that he was driving the car when the crash occurred, perhaps thinking about the time earlier that day when Rice had allowed him [752]*752to drive his car. He also argues that his conflicting statements to the trooper at the hospital about who was driving left the impression that he was lying and showing that he was confused would have mitigated this effect by attributing the conflicting statements to his confusion.

Trial counsel testified at the hearing on the motion for new trial. It is clear from his testimony that he considered the records favorable to the defense and that he wanted the jury to have the information they contained. In fact, he emphasized these records in his opening statement. Yet he did not subpoena any witnesses to authenticate the records, nor did he determine not to use the records based upon any kind of cost/benefit analysis. When asked directly by the trial judge why he had not subpoenaed “somebody from the hospital,” trial counsel testified that he had not done so because both he and the prosecutor had the records and knew what they said. He planned to present the information from the records to the jury in his opening statement, and then if the prosecutor objected, it would appear to the jury that the prosecutor was trying to hide something. But when the records were tendered, the prosecutor objected at a bench conference, outside the presence of the jury.

A trial court’s finding that trial counsel was not ineffective must be affirmed unless it is clearly erroneous. Humphrey v. State, 249 Ga. App. 805, 809 (4) (549 SE2d 144) (2001).

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Related

Strickland v. Washington
466 U.S. 668 (Supreme Court, 1984)
Lewis v. State
543 S.E.2d 810 (Court of Appeals of Georgia, 2000)
Krull v. State
438 S.E.2d 152 (Court of Appeals of Georgia, 1993)
Humphrey v. State
549 S.E.2d 144 (Court of Appeals of Georgia, 2001)
Walsh v. State
469 S.E.2d 526 (Court of Appeals of Georgia, 1996)
State v. Burnett
469 S.E.2d 324 (Court of Appeals of Georgia, 1996)

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Bluebook (online)
563 S.E.2d 872, 254 Ga. App. 749, 2002 Fulton County D. Rep. 957, 2002 Ga. App. LEXIS 355, Counsel Stack Legal Research, https://law.counselstack.com/opinion/newbern-v-state-gactapp-2002.