Opinion
64953.
DECIDED DECEMBER 3, 1982.
Vehicular homicide. Gwinnett Superior Court. Before Judge Stark.
William G. Posey, for appellant.
Bryant Huff, District Attorney, Gerald W. Brown, Assistant District Attorney, for appellee.
Defendant Timothy P. Smith here appeals his conviction on three counts of first degree vehicular homicide. While driving his pickup truck under the influence of alcohol (blood alcohol grams percentage of .27 resulting from drinking some fifteen beers), defendant crossed the centerline of the highway and struck an oncoming car head-on, killing the three college girls inside. He was sentenced to fifteen years, to serve ten. He now asserts three enumerations of error, raising five issues. We affirm.
1. Defendant first contends that the evidence was insufficient and did not exclude every other reasonable hypothesis except his guilt. In regard to the latter, we find contrary to defendant's suggestion that the evidence against him was circumstantial that the state's case included direct evidence as well as circumstantial evidence. See Code Ann. § 38-102 (now OCGA § 24-1-1 (3) (4)); see also Division 3, infra. The burden of proof pertaining to circumstantial evidence, Code Ann. § 38-109 (now OCGA § 24-4-6), applies only when the state relies solely on circumstantial evidence to make its case. Arnett v. State, 245 Ga. 470 (4) ( 265 S.E.2d 771) (1980); Gaines v. State, 232 Ga. 727 (3) ( 208 S.E.2d 798) (1974). Even so, we find that the evidence did in fact exclude every other reasonable hypothesis. There was evidence proffered to establish other hypotheses, but the trier of fact, the court in this case, was authorized to find those hypotheses were not reasonable. Harris v. State, 236 Ga. 242 (1) ( 223 S.E.2d 643) (1976).
Defendant's assertion that the evidence was insufficient is likewise without merit. The evidence of guilt was overwhelming and it easily satisfies the Jackson v. Virginia standard. 443 U.S. 307 (99 SC 2781, 61 L.Ed.2d 560) (1979).
2. In defendant's second enumeration of error he claims that it was error to admit the results of the alcohol intoxication tests into evidence because he had not been given Miranda warnings before the tests were made. The record, however, discloses that defendant expressly stipulated to the admissibility of the tests and this constitutes a waiver of any objection to their admissibility. See generally Birt v. State, 238 Ga. 402 ( 233 S.E.2d 362) (1977); Cagle v. State, 132 Ga. App. 227 (2) ( 207 S.E.2d 703) (1974), reaffirmed in State v. Chambers, 240 Ga. 76, 77 ( 239 S.E.2d 324) (1977); Heavey v. Security Mgt. Co., 129 Ga. App. 83, 84 ( 198 S.E.2d 694) (1973). We do note that defendant was properly advised under the implied consent law prior to the testing. See Code Ann. § 68A-902.1 (a) (3) (4) (now OCGA § 40-6-392 (a) (3) (4)); Code Ann. § 68B-306 (now OCGA § 40-5-55); Garrett v. Dept. of Public Safety, 237 Ga. 413 (2) ( 228 S.E.2d 812) (1976); Strong v. State, 231 Ga. 514 ( 202 S.E.2d 428) (1973), cert. den., 416 U.S. 994 (1974).
3. In the second enumeration of error defendant also claims it was error to admit into evidence his statement given to the police after being advised of his Miranda rights, but while he was still under the influence of alcohol. He contends that a man too drunk to drive is too drunk to waive his constitutional rights. While this is certainly not a recognized axiom, we think it appropriate to scrutinize the record carefully under such circumstances to ascertain whether his statement, which was tantamount to a confession, was given knowingly and voluntarily. Nevertheless, we are still bound to accept the factual determinations of the trial court unless they are clearly erroneous. Carter v. State, 160 Ga. App. 299 (1) ( 287 S.E.2d 313) (1981); Ramey v. State, 145 Ga. App. 812 (2) ( 245 S.E.2d 45) (1978).
The trial court here was presented with more than ample evidence upon which to make its decision and that evidence was thoroughly tested by cross-examination. After careful review, we hold that the court's finding that defendant was rational and coherent when he made his statement to the police and that the statement was given knowingly and voluntarily is not clearly erroneous. See Allen v. State, 231 Ga. 17 (2) ( 200 S.E.2d 106) (1973), cert. den., 414 U.S. 1159 (1974); Carter v. State, supra.
4. Defendant's final contention is that the trial court erred in sentencing him on three counts of vehicular homicide because the three deaths resulted from one negligent act. In support of this contention he cites several cases involving crimes against property. Such cases are wholly inapposite. "Where one is charged with the homicide of different people in different counts and is found guilty on each count, he may be sentenced separately on each count to run consecutively for the reason that the killing of different persons constitutes separate crimes even though done at the same time with one stroke of the same death-dealing instrument. While the stroke was one transaction, the killing of different persons with that stroke constitutes several criminal transactions." Brown v. State, 129 Ga. App. 743, 746 ( 201 S.E.2d 14) (1973); see also Code Ann. § 26-506 (a) (now OCGA § 16-1-7 (a)).
Judgment affirmed. Deen, P. J., and Sognier, J., concur.