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Lopez v. State4/23/2004
Hector Lopez was convicted by a jury of obstruction of an officer, attempting to elude an officer, reckless conduct, and driving under the influence. On appeal, Lopez raises eight enumerations of error. After reviewing the record, we conclude there was no reversible error and affirm.
The evidence at trial, taken in the light most favorable to the verdict, was as follows. On the night in question, officers received a call to be on the lookout for a possible drunk driver. Officer Pace drove to the location given and spotted the car with Lopez driving. The car was weaving "all over the road." Pace turned on his lights and siren to pull the car over. Lopez did not stop but continued weaving from one side of the road to the other. Another officer, Sergeant Smith, came from behind and pulled around in front of Lopez's car, partially blocking it. Lopez stopped, then started again and then stopped. Pace walked up to Lopez's car and opened the driver's side door. Lopez was leaning on the steering wheel looking up at him, and the officer smelled a strong odor of alcohol coming from the car. Suddenly, Lopez stepped on the gas, and Pace had to get out of the way to keep from being hit. Sergeant Smith testified that he was walking toward Lopez's car when Lopez suddenly accelerated and drove straight *179 toward him. Smith said that as he was moving out of the way, he fired his gun at the car, hitting Lopez in the shoulder. Smith stated "[h]e looked me straight in the eyes, gunned his car in my direction, and I thought he was going to run over me."
Lopez continued to drive after being struck by the bullet, and Pace got back in his patrol car and chased Lopez, who eventually ran off the road and was captured.
The jury found Lopez not guilty of aggravated assault and one count of obstruction of an officer. They found him guilty of one count of obstruction of an officer, two counts of attempting to elude an officer, three counts of reckless conduct, and one count of driving under the influence. This appeal followed.
1. In his first enumeration of error, Lopez claims the trial court erred in not dismissing the indictment due to selective prosecution, [FN1] prosecutorial misconduct, and prosecutorial vindictiveness. Lopez was initially charged with four counts: aggravated assault on a police officer, driving under the influence, attempting to elude, and reckless driving. Lopez was reindicted and charged with aggravated assault on a police officer, two counts of obstruction of an officer, two counts of attempting to elude an officer, two counts of reckless conduct, reckless driving, speeding, and driving under the influence. Lopez claims the prosecutor reindicted him and increased the severity of the charges against him because he filed a § 1983 claim against the police officers in federal court.
FN1. We will not address the selective prosecution claim because defense counsel admitted at the hearing that he did not have evidence to support this claim.
An indictment obtained without the dismissal of a prior indictment is a superseding indictment. A grand jury is not prevented from returning another indictment against an accused, even though an indictment is pending, where there has been no jeopardy upon the first indictment, and the existence of a prior indictment generally is not grounds for quashing the second indictment, although the state may be required to elect upon which indictment it will proceed. However, a reindictment increasing the severity of the charges following the exercise of certain procedural rights may create an appearance of vindictiveness, and where it does so, the burden is shifted to the government to prove that the decision to reindict with more severe charges did not result from any vindictive motive.
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