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When 'homicide' is a misdemeanor
Brannen-Mallard wreck case hinged on distinctions between felony indictment, misdemeanor conviction
Bobby Mallard photo ring Web
Bobby Mallard looks at the wedding ring given him by his late wife Geneva, whose photo is at left. They were married 47 years before her death in the collision on Sept. 28, 2012. - photo by AL HACKLE/Staff

            It’s been nearly three years since Bobby Mallard’s wife Geneva was killed in a horrific car crash on Highway 67 in southern Bulloch County. The loss of his wife of 47 years and the circumstances that led to her death, however, remain a part of his everyday life.
        “It don’t ever go away,” Mallard said. “No. Wake up at 3 o’clock in the morning, and that’s the first thing that’s on your mind — whatever time.”
        On the night of Sept. 28, 2012, Sean Jackson Brannen, then 19, ran a stop sign on Emit Grove Church Road at Highway 67, causing the wreck that took the life of Geneva Mallard. Eight people in two vehicles were directly affected.
        Brannen’s trial earlier this summer left members of the Mallard family calling his misdemeanor conviction and sentence overly lenient for someone responsible for killing another person, even if it was an accident. He has been serving part of his 90 days jail time on weekends, with weekday release.
         At the least, the case illustrates the differences between the felony and misdemeanor degrees of vehicular homicide.
        “Bottom line: this was an accident, not an intentional act,” said Brannen’s defense attorney, Lovett Bennett. “The punishment is always different for misdemeanors versus felonies.”
        The state never claimed that Brannen intentionally killed anyone. That is not an element of vehicular homicide. But the Ogeechee Judicial Circuit District Attorney’s Office did allege that Brannen drove recklessly, sped through the darkness with his headlights off, and intentionally ran a stop sign. On that basis, and with evidence from his vehicle’s airbag control computer that Brannen speeded up to more than 70 mph in the seconds prior to impact and never applied the brakes, the prosecution obtained an indictment including a felony vehicular homicide charge.
        Assistant District Attorney Michael Muldrew said the prosecution based its argument for the reckless driving charged primarily on evidence that Brannen intentionally ran the stop sign.
        “The state felt that the evidence showed he was recklessly driving,” Muldrew said. “That’s why he was charged and indicted, but the court after hearing all the evidence found him guilty of speeding instead of reckless driving, which makes it a misdemeanor.”

The crash
        Brannen was driving a 2011 F-150 four-door pickup west on Emit Grove Church Road, approaching Georgia Highway 67 on Emit Grove Church Road at about 10:50 p.m.  A sober, designated driver, Brannen was accompanied by five other young men, ages 19-22, on their way to a party.
        Meanwhile, Bobby Mallard, then 67, was driving north on Highway 67 with Geneva, 65, beside him in their 2003 Pontiac Montana minivan. Other cars were in front of and behind them.
        At a point where doing so meant crossing well-traveled Highway 67 from the paved portion of Emit Grove Church Road onto the dirt portion on the other side, Brannen‘s pickup crossed three rumble strips, passed the stop sign and collided with the Mallards’ van.
        Both vehicles flipped over and ended up in the yard of a home off the northwest quadrant of the intersection.
        The Mallards’ van landed on its driver’s side, having taken the brunt of the blow along the passenger’s side, where Geneva Mallard was sitting. First responders found her dead at the scene. The Mallards wore seatbelts, and their airbags deployed.
        Brannen’s truck came to rest on its roof after hitting a small utility pole. Brannen and his friend and front-seat passenger, Brooks Edwards, were not wearing seatbelts, according to the Georgia State Patrol’s reports. Both were flung out of the truck, but their injuries were described in the State Patrol’s initial report as “non-incapacitating.”
        Of the young men in the back seat, Matt L. Conner, then 22, Glynn P. Helmly, then 22, Joseph E. Wilson, then 21, and Zachary C. Helmly, then 19, only Wilson was reported to have worn his seatbelts. All were taken to the hospital, but most later described injuries limited to cuts, bruises and abrasions.

Headed home
        Sweethearts since their days at Portal High School, Bobby and Geneva Mallard often traveled together on mini-vacations. Geneva Mallard also drove the van to her job at the Health Department before her retirement.
        But this was a trip home. They had been staying in Savannah more than a week, looking after one of their sons, Wayne, who suffered a stroke and was recovering at Memorial University Medical Center.
        Their home is more than 10 miles north of Statesboro, so they weren’t there yet as they approached town.
         “And I said you want to stop in town and get something to eat or you want to go on to the house?” Bobby Mallard recalled. “She said, ‘Let’s go to the house. We’ll fix something when we get there,’ and that was the last words we spoke.”
        He remembers seeing one of the houses at the intersection, then nothing before he woke up back at Memorial in Savannah the next morning. Family members were standing around his hospital bed as his brother’s wife told him Geneva had died.
        Bobby Mallard was flown to the Savannah hospital because his neck was thought broken. It may have been cracked but healed after three weeks in a neck brace, he said. He experiences an occasional twinge from a shoulder injury. “I say it’s nothing,” he said.

Going to a party
        Sean Brannen had driven to a house in Brooklet, then a second house, picking up friends. The six young men were all going to a party at Burkhalter Plantation, according to statements Brannen’s passengers gave investigators.
        “Pretty much, yeah,” one of the passengers answered when an investigator with the district attorney’s asked if there was a party atmosphere inside the truck. Loud music was playing. Several of the passengers told investigators that they, the passengers, had been drinking, and photos taken by the State Patrol showed beer bottles and cans scattered about the overturned truck.
        But Brannen was neither drinking nor engaging in horseplay, his passengers repeatedly told investigators.
        A gas chromatography blood test by a GBI lab showed that Brannen had no alcohol in his system, confirming a test given at the scene.

Investigation
        The Statesboro Herald did not have a reporter at the trial, and no transcript was available. Muldrew noted that a transcript usually is prepared only for an appeal, which will not occur in this case.
        The newspaper obtained the DA’s office case file through a Georgia Open Records Act request. The report of the Georgia State Patrol’s Specialized Collision Reconstruction Team, or SCRT, was obtained directly from the Georgia Department of Public Safety.
        The SCRT, led by Senior Trooper Roger Cason, used Bosch data recovery software to analyze information from the Ford F-150’s airbag control module, or ACM. The module records the speed of any impact that causes the airbags to deploy and retains the speed information from five seconds before that impact.
        The raw data showed that Brannen’s vehicle accelerated from 58 mph to 71 mph in the five seconds ending with the airbag deployment. With a correction for tire size, the actual speed would have been 73.89 mph, according to the report. Tachometer readings, showing the engine revving from 2,008 to 4,344 rpm in the same five seconds, were also shown in the Bosch printout.
        A supplementary analysis, performed by State Patrol Cpl. Ward Holton at the prosecution’s request, gave final speeds in the 68-75 mph range at impact. A trooper photographed the speedometer, with the needle stopped above 70 mph, after the wreck, as also noted in Holton’s report.
        Every half second in the five seconds prior to the impact, the ACM data showed that the brakes were not used. The pickup’s computer circuitry did not supply any information about whether the lights were on or off. This is not something the ACM records.
        “The light switch was noted to be in the off position while on the scene of the crash and during the inspection at the wrecker yard. There was not enough evidence to determine if the headlights were on or off when the headlights were examined,” Cason’s report states.

Witnesses
        When interviewed by investigators, none of Brannen’s passengers said that he turned the lights off. Most said they did not notice or did not remember his doing so. Edwards, the close friend who had been in the front seat with him, gave the most affirmative statement that the lights were on.
        “They were on the last I remember,” Edwards told Trooper Cason. “Like I said, I remember crossing the first rumble strip there, and they were on.”
        Both to Cason, and more than a year later to the DA’s investigator, Edwards said that he remembered crossing a rumble strip and that Brannen was slowing down.
        Wilson, who had been in the back seat behind Edwards, had a different recollection when interviewed by a DA’s office investigator in March 2014. Wilson said the engine revved and he thought Brannen saw the oncoming vehicle and hit the gas instead of the brakes.
        “Yeah. He hit the gas to think that he could beat it, but in my opinion, if he would have hit the brakes, the car would have went by and we would have made it across,” Wilson told the investigator in the March 2014 interview.
        But in Cason’s interview on Oct. 12, 2012, two weeks after the wreck, Wilson had said “I felt like, you know, we were kind of close to that stop sign but I wasn’t sure, so I didn’t say nothing. I just remember looking up and I seen those lights, and from there on you know what happened.”
        Another witness was Marcus Moody of Statesboro, who had been driving the same direction as the Mallards on Highway 67, about a car length ahead.
        “The only thing I recall was like seeing like a ball of smoke because they were flying,” Moody told Cason on Oct.18, 2012. “They were like going really, really, really fast, so I really don’t even recall headlights. I’m not a hundred percent sure about that.”
        As Cason questioned further, Moody said, “I kind of remember not seeing any lights,” but again added that he wasn’t completely sure. He had looked in his rearview mirror, heard a boom, and stopped to help the injured.

Indictment and trial
        Nineteen months passed before Brannen was charged with a crime as a result of the wreck.
        After a presentation signed by District Attorney Richard Mallard, a Bulloch County grand jury returned an indictment May 6, 2014, charging Brannen with first-degree vehicular homicide, the felony kind, as well as reckless driving and running a stop sign.
        Under Georgia law, reckless driving, itself a misdemeanor, is one of just four violations that can support a felony charge of vehicular homicide when a death results. The others are driving under the influence, fleeing or attempting to elude police, and unlawfully passing a school bus. Whereas the law prescribes a sentence of three to 15 years for felony vehicular homicide, the maximum for the misdemeanor version is one year in jail and a $1,000 fine, not counting added fees.
        Another year passed before the case went to trial. Two of the three Bulloch County Superior Court judges, Judge Gates Peed and Chief Judge William Woodrum Jr., recused themselves from hearing the case. No reasons for the recusals were given in the clerk’s office record, but in assigning the case to Judge John R. “Robbie” Turner, Woodrum noted that Turner was the last judge available.
        Meanwhile, Brannen waived his right to a jury trial.
        After a bench trial June 25-26, Turner found Brannen not guilty of felony vehicular homicide, but guilty of the lesser included charge of misdemeanor vehicular homicide; not guilty of reckless driving, but guilty of speeding and failure to stop at stop sign. The judgment document refers to the failure to stop charge as “merged,” indicating that it was merged into the misdemeanor homicide charge as supporting it.
        On July 1, Turner sentenced Brannen to 12 months on the vehicular homicide count plus 12 consecutive months on the speeding count.
        But the judge made 90 days of the sentence jail time, with the remainder of the two years to be probation. He also fined Brannen $1,355, and $960 in probation fees made the total to be paid $2,315.
        The judge also suspended Brannen’s driver’s license for one year and restricted it for one year after that.

Family unhappy
        “I think he should’ve had a lot stiffer punishment, myself. Let me say this, I believe if I were in those same shoes, I would have gotten a harsher punishment,” said Wayne Mallard.
        Three years ago, prior to his mother’s funeral in Statesboro, a special viewing was held at a Savannah funeral home so that Wayne Mallard could leave Memorial Medical Center and attend while still recovering from his stroke.
        In an August interview, Bobby Mallard was asked whether he thought justice was done.
        “No sir, I don’t,” he said, noting that he still thought Brannen deliberately speeded up and ran the stop sign.
        “I think the judgment they brought against the boy was lenient, very lenient; I think the sentencing was very lenient,” Mallard said.
        Months before the criminal trial, he reached a civil settlement with Brannen’s insurance company. It involved monetary compensation, but Mallard said he could not reveal how much. But he said he had not wanted to go too high so as not to hurt Brannen’s family.
        Brannen was prohibited from contacting the victim’s family in the context of the criminal case. But as part of the civil settlement, and with permission from Mallard’s civil attorneys, Brannen provided a letter of apology to Bobby Mallard, reported Bennett, his attorney in the criminal case.
        Mallard confirmed that he received it.
        “Like I say, I accept his apology and I know that it was an accident – only not exactly an accident because the thing about it is, he could have done something there within the last five or 10 seconds to have stopped that business,” Mallard said in July. “So he didn’t do it, and really at this point I can’t forgive him for that.”
        Bennett noted that the Brannen family has repeatedly expressed sympathy for the Mallards.
        “Since this incident occurred back in 2012, the Brannens have prayed for the Mallard family every single morning before commencing their work day. They love the Mallards, have been friends of the Mallards, and have been worried sick about the Mallards for the past three years,” Bennett said in an emailed response.

Key reasons for findings
        Bennett said his heart goes out to the Brannens as well, “But the evidence simply was not produced in court, or obtained prior to court by the investigators, to support the theory that Sean Brannen was cutting off his lights, ‘zooming,’ through the intersection, or acting recklessly that night.”
        Some testimony concerned the SCRT investigators’ stated inability to determine from filament stretching, as occurs in hot lightbulbs, whether Brannen’s headlights had been on or off. The headlights were destroyed, the report noted. But in court, Bennett noted, Cason testified that GSP troopers had checked the taillight bulbs on the Mallards’ van, and that stretching showed them to have been on.
        “He agreed with me under cross-examination that the GSP could have checked the Brannen taillights to verify if the Brannen lights were on or off at the time of the incident,” Bennett said. “No one checked.”
        Muldrew, the prosecutor, had argued in court that the headlights being turned on or off should not decide the case.
        “It just goes to show intent,” Muldrew said in an interview. “The evidence that he intentionally ran the stop sign was the fact that he was speeding up towards it, and he actually had it basically floored.”
        A chart from the Bosch readout, included in Holton’s report, showed the gas pedal position advanced from 90.2 percent to 98 percent in the final five seconds.
        Bennett said that he achieved a courtroom revelation by asking Holton if he had performed “momentum analysis” to verify the Bosch speed data. Holton then pulled this information, which had not been provided to Bennett on discovery, from a stack of papers, Bennett said. Holton’s calculations, Bennett said, showed that the truck was traveling between 42 and 61 mph at the point of impact.
        “Of course, Officer Holton attempted to explain away this calculation, since it obviously did not fit the state’s narrative. But the damage was done” (to the state’s case), Bennett said.

License suspension
        Bennett filed a motion July 15 to have Brannen’s one-year driver’s license suspension reduced to a restriction. This would have allowed him to drive from his home near Statesboro to Abraham Baldwin Agricultural College in Tifton beginning this fall.
        But Turner rejected this motion on Aug. 7, keeping the license suspension in effect through next June, to be followed by the original one-year restriction.
        The Herald’s mid-August calls to Turner’s office seeking an interview about “a recently tried case” never resulted in a call back from the judge. Asked if Brannen could be interviewed, Bennett said he never really advises clients to talk about their cases outside of court.
        “It’s a tragedy all around is what it is,” said Assistant District Attorney Muldrew. “It should have never happened. There’s no reason it had to happen.”

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