A jury found Edmund J. Himmel guilty of vehicular homicide, serious injury by vehicle, and reckless driving. The court
sentenced him separately for each offense. On appeal, Himmel claims that (1) the trial court erred by admitting evidence of
three prior automobile accidents without conducting the hearing required by Uniform Superior Court Rule (USCR) 31.3, (2) he
was denied effective assistance of counsel, and (3) the trial court erred by sentencing him on reckless driving. Because we
cannot say that failing to conduct the USCR 31.3 hearing was harmless error, we remand the case to the trial court for the
required hearing. We find that Himmel was not denied effective assistance of counsel. We find that the trial court erred by
sentencing Himmel on the lesser included offense of reckless driving and vacate the conviction and sentence on that charge.
On October 8, 1996, Andrea Johnson and two friends were driving north on Interstate 95 in Camden County, Georgia. Johnson
noticed a red sports car, which she later determined was being driven by Himmel, going south on I-95 at a very high rate of
speed. She continued to observe the car in her rearview mirror and saw it slow down, make a u-turn, and begin traveling the
wrong way in the middle of the interstate. Johnson put on her signal and began to slow down so that she could pull over. By
the time she reached the emergency lane, she saw that the red car had started "clipping" cars traveling the other way. Johnson
saw several cars swerve to avoid the red car before it hit a station wagon and then hit a gray car head on, causing it to
veer off the side of the road. She then saw the red car hit a green car, causing it to spin around and land in the median.
When it hit the green car, the red car caught fire and Himmel was thrown through the windshield.
Georgia State Patrol Officer Michael Young investigated the accident and determined that Himmel had been driving north
in the southbound lane of the interstate. He first hit a gray Buick occupied by William and Dorothy Wilson almost directly
head on. The impact caused the Wilsons' car to veer off to the right and pushed Himmel's car backward. A Toyota Celica sideswiped
Himmel's vehicle and veered off to the right. Finally, a Honda Accord driven by William Wilkinson struck Himmel's car and
landed in the median, severely damaged.
Johnson, a nurse's aide, attempted to administer first aid to the occupants of the Honda (William and Kimberly Wilkinson)
while they waited for emergency personnel to arrive. William Wilkinson was knocked unconscious by the impact, and Johnson
pulled him from the car. Kimberly Wilkinson was trapped in the car, and Johnson and Kimberly's husband, William, who had regained
consciousness, were unable to get her out.
When emergency personnel arrived, they had to pull back the roof on the Honda to free Kimberly Wilkinson. She was severely
injured and was flown to a hospital in Jacksonville, Florida, where she died several days later. The parties stipulated into
evidence a medical report stating that her death was caused by multiple injuries sustained in the collision. Dorothy Wilson
also was injured critically and was taken to the hospital. William Wilkinson suffered several fractured bones in his arm,
leg, and foot and was taken to the hospital. Himmel also was injured and was flown to a hospital in Florida.
Dr. Nic Dalesandro, the coordinator of forensic services at Georgia Regional Hospital, examined Himmel pursuant to
a court order that he be examined to assess his competency to stand trial and his responsibility for his actions at the time
of the accident. Both Himmel and the State wanted the examination to be performed. Before questioning Himmel, Dr. Dalesandro
advised him that he did not have to talk to him and that any information he disclosed could be made available to the court.
After an initial interview, Dr. Dalesandro sent Himmel to Central State Hospital for a full neurological evaluation. The neurological
assessments were largely within normal limits, although they indicated that Himmel has epilepsy. After a follow-up interview,
Dr. Dalesandro determined that Himmel was competent to stand trial and that he was not suffering from any psychiatric or psychological
disorder that would have affected his behavior. Dr. Dalesandro testified that Himmel told him that he had been involved in
three prior automobile accidents caused by epileptic seizures. He testified that he did not know if Himmel's epilepsy affected
his behavior on the day of the accident.
Himmel testified that he had a valid Massachusetts driver's license at the time of the accident. He described his earlier
automobile accidents caused by his seizures, one of which involved injuries to a woman, her nine-month-old child, and Himmel.
He said he did not tell the police investigating the prior accidents about his seizures because he did not want to lose his
The day before the accident at issue, Himmel left Massachusetts and drove for fifteen hours before stopping to get
about four or five hours of sleep in his car and then continuing on to Georgia. Himmel testified that he remembered having
the aura that usually precedes an epileptic seizure, pulling into the emergency lane, and trying to put his car into park.
He claimed that he did not remember anything else until he woke up in the hospital in Jacksonville, Florida.
1. In his opening statement, the prosecutor told the jury that
what we found out in our investigation, after we found out that he had a history of seizures, was that this isn't the
first time that he has had a wreck and claimed that he had a seizure. In fact, specifically there were three prior instances,
one only a few months prior to this crash in which he was involved in a wreck and claimed that he had a seizure that caused
He explained that this information resulted in the addition of alternative counts in the indictment. One count was
that Himmel drove in conscious disregard for the safety of other people by driving while knowing he was subject to having
seizures that could cause unconsciousness and loss of voluntary control over his bodily movements.
Although he did not object to the prosecutor's opening statement or to Dr. Dalesandro's testimony about the prior accidents,
Himmel claims on appeal that the State had an obligation to notify him before trial of its intent to use similar transaction
evidence. We agree.
Before introducing evidence of similar transactions or occurrences, the State must provide written notice of its intent
to use such evidence to defendant's counsel and file it with the court at least ten days before trial, unless the time period
is altered by the judge. 1 The judge must then hold an evidentiary hearing to determine
if the evidence should be admitted. 2 The State concedes that no notice was given and no hearing
Himmel's failure to object to the lack of notice and the required hearing "does not constitute a waiver of the procedure
dictated by Rule 31.3 (B) and does not preclude our consideration of the issue on appeal." 3 But neither the State's failure to give notice nor the trial
court's failure to conduct the required hearing automatically entitles the defendant to a new trial. Instead, we evaluate
the error to determine if it was harmless. 4
We cannot say that the admission of evidence regarding Himmel's prior accidents without benefit of a USCR 31.3 (B)
hearing was harmless under the circumstances. We therefore remand the case to the trial court to conduct a USCR 31.3 (B) hearing.
5 If the trial court determines that the State's evidence of
similar transactions does not demonstrate substantial relevancy for a proper purpose under the standards of Williams v. State,
6 or if such relevancy is substantially outweighed by the danger
of unfair prejudice, then Himmel is enti- tled to a new trial. 7 If the court determines that the evidence is admissible under
USCR 31.3 (B) and Williams, a new trial is unnecessary, 8 and the judgment of the trial court shall be affirmed except
as otherwise vacated in Division 3.
2. Himmel filed a motion for new trial asserting that his trial counsel was ineffective. After conducting a hearing
on this claim, the trial court determined that his counsel was effective and that any deficiency alleged by Himmel would not
have prejudiced his defense.
To establish ineffectiveness of trial counsel, Himmel must show that his counsel's performance was deficient and that
the deficient performance prejudiced his defense. 9 The standard for attorney performance is reasonably effective
assistance considering all the circumstances, with a strong presumption that, under the circumstances, the challenged action
might be considered sound trial strategy. 10 The test for reasonable attorney performance is " 'whether
some reasonable lawyer at the trial could have acted, in the circumstances, as defense counsel acted at trial. . . .' " 11
We review a trial court's finding that a defendant has been afforded effective assistance of counsel under the clearly
erroneous standard. 12 Matters such as calling a particular witness, questioning
on direct and cross-examination, making trial motions, and objecting to testimony are strategic and tactical decisions within
the exclusive province of the attorney after consultation with the client. 13
(a) Initially, Himmel claims that Dr. Dalesandro could testify on behalf of the State only to respond to or rebut testimony
of the defendant or the defendant's mental health expert 14 and that trial counsel therefore should have objected to
the doctor testifying as part of the State's case. This aspect of Himmel's ineffective assistance claim was waived because
it was not raised at the hearing on the motion for new trial. 15
Any ineffective counsel challenge will be deemed waived if the new attorney files an amended motion for new trial and
does not raise the issue before the trial court so that the challenge can be heard at the earliest practicable moment, i.e.,
during the hearing on the amended motion. 16
(b) Himmel argues that his trial counsel should have investigated whether he was given a proper Miranda warning prior
to his examination by Dr. Dalesandro and should have objected to the doctor's testimony if no warning was given. At the motion
for new trial hearing, Himmel's trial counsel testified that Himmel received a Miranda warning when he arrived at the sheriff's
department in Camden County, after he was released from the hospital in Florida. Himmel, however, testified that he was never
given a Miranda warning.
Evidence was presented that Himmel was given a Miranda warning at the time of his arrest, that he sought a psychiatric
evaluation, and that before the psychiatric evaluation, Dr. Dalesandro reminded him that he did not have to answer any of
his questions and that anything he said might be provided to the court. After the doctor's warning, Himmel voluntarily participated
in the evaluation. Because the trial court was authorized to find that Himmel's counsel reasonably believed that Himmel had
received a proper Miranda warning, the court's determination that counsel did not render ineffective assistance on this issue
was not clearly erroneous.
(c) Himmel asserts that his trial counsel was ineffective because he failed to object to Dr. Dalesandro's testimony
about his prior accidents that were caused by seizures. Although Himmel's trial counsel did not object to the admission of
the testimony, the failure to object under these circumstances does not constitute waiver, 17 as recognized in Division 1. Because any error regarding
the admission of the similar transaction evidence will be corrected on remand, we need not consider the impact of counsel's
failure to object to Dr. Dalesandro's testimony.
(d) The following exchange transpired during Himmel's cross-examination:
THE STATE: You didn't mean for anybody to get hurt, Mr. Himmel?
HIMMEL: No, I didn't, not at all.
THE STATE: Somebody did get hurt, didn't they?
HIMMEL: Yeah, that's what I heard, but I don't --
THE STATE: Well, you were in the same hospital with them, were you not?
THE STATE: Okay. And you knew they were hurt; is that right ?
HIMMEL: Not until -- not until I woke up and the doctors and nurses working on me in the emergency room told me --
and then they -- they told me about the accident. I didn't know how many people were hurt at the time.
THE STATE: Are you sorry that people got hurt?
THE STATE: Okay. Have you ever told anybody that?
HIMMEL: When I saw the list of the papers of all -- list of all the charges of all the State's witnesses, including
the victims, I was going to write to them or call them, but the lieutenant told me not to because otherwise they'd use that
against me in court.
THE STATE: So you or your father or no one ever told the family of these people that you were sorry?
HIMMEL: No, not yet, but I do now.
Himmel contends that the prosecutor improperly commented on his right to remain silent.
We find that any deficiency in failing to object to the State's cross-examination of Himmel did not prejudice the defense
because there is no reasonable probability that the outcome of the proceedings would have been different, but for counsel's
(e) Himmel argues that he did not want to testify and that he testified only because his trial counsel urged him to
do so. At the motion for new trial hearing, Himmel's trial counsel testified that he had informed Himmel that he could choose
whether to testify. He also testified that Himmel had always taken the position that he wanted to testify because this "horrible
accident . . . was simply an accident and he wanted to explain his version of the facts to the jury."
The decision whether a defendant will testify in his own behalf at trial is a tactical one and as such will not be
questioned by this court. 19 Although Himmel and his counsel gave conflicting testimony
at the motion for new trial hearing concerning Himmel's desire to testify, "it was the function of the trial court hearing
the evidence presented at the hearing on defendant's motion for new trial to determine witness credibility and resolve these
(f) Himmel claims his trial counsel was ineffective because he failed to introduce evidence of any prior medical treatment
he received for epilepsy or seizures. But Himmel testified at the motion for new trial hearing that he had discussed this
issue with his trial counsel and had told him that he did not want him to introduce evidence from his prior treating physicians
that he had been treated for epileptic seizures. Deciding what evidence to present is a matter of trial strategy and tactics,
and tactical errors (assuming this was one) do not constitute ineffective assistance of counsel. 21
(g) Finally, Himmel complains of his trial counsel's failure to file any requests to charge, and specifically, his
failure to file a request to charge on the law of accident. At the motion for new trial hearing, Himmel's appellate counsel
asked his trial counsel if he had filed any requests to charge, and his trial counsel said that he had not. The failure to
file a request to charge on accident was not argued or otherwise presented to the trial court; therefore, nothing is presented
for review. 22
3. Himmel argues that the trial court erred in sentencing him on the lesser included offense of reckless driving because
he also was sentenced on the greater offenses of homicide by vehicle in the first degree and serious injury by vehicle. The
State concedes that Himmel should not have been sentenced on the reckless driving charge.
The traffic violations underlying the offense of vehicular homicide, including reckless driving, constitute lesser
included offenses of vehicular homicide, and conviction of both offenses is proscribed under OCGA 16-1-7. 23 The offense of reckless driving therefore merged into the
crime of first degree vehicular homicide. 24 The trial court thus erred by sentencing Himmel on the lesser
included offense of reckless driving. 25 Accordingly, we vacate the conviction and sentence for reckless
Lane & Crowe, Robert L. Crowe, for appellant.