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Himmel v. State

The trial court erred in sentencing the defendant for both vehicular homicide and the lesser included offense of reckless driving.

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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 Interstate 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 grey 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.

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