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Moore v. State11/7/2002
A car operated by Tommie Lee Moore collided with an eighteen-wheel tractor-trailer rig, causing the death of Moore's passenger. As a result, a two-count indictment was returned charging Moore with driving under the influence of alcohol with a blood alcohol concentration of .10 grams or more and with homicide by vehicle in the first degree. A jury found him guilty of both counts. The court merged the former count into the latter and sentenced Moore for first-degree vehicular homicide. Among other things, Moore contends in this appeal that the trial court erred in refusing to instruct the jury on his defense of accident or misfortune. Finding merit in this contention, we reverse Moore's conviction of vehicular homicide and remand for further proceedings.
Six prosecution witnesses testified about the events surrounding the collision and Moore's alcohol consumption. The driver of the tractor-trailer rig testified that he was traveling west on Interstate 285 near its intersection with Interstate 85 when his truck lost power due to a problem with the fuel filter and began to decelerate from approximately 55 mph to between 10 and 15 mph. The driver then activated the truck's emergency flashers and attempted to pull off onto the median. But traffic was heavy and, before the trucker could exit the roadway, he realized that his truck had been struck from behind with significant force. He then stopped and found Moore's car positioned under his trailer.
The State's accident investigator testified to four findings he had made: (1) he did not observe any skid marks behind Moore's car, (2) the wheels on Moore's car were turned slightly to the right, (3) open containers of beer were found in the car, and (4) the tractor-trailer rig was straddling the middle and far right lanes of the highway. On direct examination, the investigator opined that the lack of skid marks could have meant that Moore did not apply his brakes. On cross-examination, however, he acknowledged that the lack of skid marks could also have meant that the collision occurred instantaneously, so that Moore did not have time to apply his brakes; and that the truck was traveling with a full load, so that its deceleration would have been rapid. The investigator noted that the angle of the wheels of Moore's car indicated that he was trying to maneuver around the truck.
Moore's passenger was pronounced dead on the scene. The parties stipulated that the cause of death was blunt force trauma sustained during the collision. Following the collision, Moore was transported to a hospital where his blood was drawn for alcohol testing. Testimony given by the State's forensic toxicologist showed that his blood alcohol concentration was 0.11 grams per 100 milliliters or 0.11 grams percent. An acquaintance of Moore's testified about Moore's drinking earlier in the evening. An emergency medical technician who had responded to the collision testified that, on the scene, Moore emanated a strong odor of alcohol. A motorist testified that he had observed Moore's vehicle being driven at a high rate of speed in the far left lane sometime before the collision.
According to the State, Moore caused the death of his passenger by driving while under the influence of alcohol. Moore's defense was that the rapid deceleration of the truck rendered the collision unavoidable and that the State's evidence did not support the per se DUI charge.
1. Moore contends that the court erred in refusing to charge the jury on misfortune or accident under OCGA § 16-2-2: "A person shall not be found guilty of any crime committed by misfortune or accident where it satisfactorily appears there was no criminal scheme or undertaking, intention, or crimin
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