By Marcia Moore
The Daily Item
November 03, 2007 05:34 am
—
MIDDLEBURG -- A Snyder County jury convicted a Beaver Springs man of homicide by vehicle Friday, but acquitted him of a more serious charge of vehicular homicide while driving under the influence of alcohol in the August 2005 crash that took the life of Jerry Colabine.
Emery A. Troyer, 26, mouthed "thank you" to the jury, hugged his attorney, Lynn Erickson Ober of Leesport, turned toward his family and friends in the gallery and winked after the verdict was read aloud.
He faces a maximum seven years in prison and $15,000 fine for the third-degree homicide by vehicle conviction when he's sentenced Nov. 21 by Union-Snyder President Judge Harold F. Woelfel Jr.
The jury found Mr. Troyer not guilty of homicide by vehicle while driving under the influence and two counts each of aggravated assault by vehicle while driving under the influence and DUI.
Judge Woelfel also found Mr. Troyer guilty of six summary traffic offenses, including reckless and careless driving.
Prosecutor Anthony Forray of the state Attorney General's Office and Mr. Colabines parents and siblings were dumbfounded by the outcome of the three-day trial.
"We respect the jury's verdict, but we're very disappointed," Mr. Forray said.
"The entire family is very distressed and we still don't have closure," the Colabines said in a statement.
Mr. Troyer was on trial for the Aug. 6, 2005, accident on Route 522 in Franklin Township that killed Mr. Colabine, 41, of Beaver Springs, and injured his wife, Audrey, and their two children, Candice, 14, and Miranda, 12.
The jury heard testimony from Mr. Troyer, the young Colabine girls, witnesses at the scene of the crash, state police and lab technicians regarding the handling of the blood-alcohol evidence.
Mrs. Ober apparently was very effective in raising doubt about the blood-alcohol concentration evidence presented by the commonwealth.
At trial she questioned a lab technician about a stamp that read "trouble" on a box containing vials of Mr. Troyer's blood that the prosecution contended showed his blood-alcohol concentration soon after the accident was 0.129 percent, above the legal limit of 0.08 percent.
During closing arguments, Mrs. Ober hammered the point by calling the blood testing "suspect" and enough to raise reasonable doubt.
Mr. Forray addressed the matter briefly in his closing, reminding the jury that the lab manager where the blood was drawn testified that the "trouble" stamp on the evidence was likely placed on the box by accident.
After the verdict, Mr. Forray shook his head regarding the jury's decision to acquit Mr. Troyer on all driving under the influence of alcohol-related charges.
"I thought it was clearly proven by the defendant's own admission that there was a DUI," Mr. Forray said.
Mr. Troyer admitted on the stand that he drank five to six beers prior to the accident and had a cooler in his truck where he regularly stored alcohol, but denied telling state police Trooper Craig Magnuson that he consumed as many as eight beers that night or that he drank several within a specific time frame.
He also disputed the trooper's testimony that he told the officer soon after the accident that he had a drinking problem and was getting help for it from a family member.
Mr. Troyer testified he did not say he had a drinking problem but admitted his family, who are Mennonite, didn't approve of him drinking alcohol.
"I wasn't intoxicated," he said. "I didn't feel I was intoxicated, that I couldn't drive or I was reckless. I just knew what I could handle."
In her closing statement, Mrs. Ober reminded the jury that Mr. Troyer repeatedly said on the stand that he just wanted to know what happened to cause him to veer into Mr. Colabine's lane the night of the accident.
She said the prosecution never proved he was intoxicated or, as suggested by Mr. Troyer, that there wasn't a mechanical failure that caused his Dodge Dakota truck to crash into Mr. Colabine's van.
The trial ended on a confusing note, with Judge Woelfel having to collect jurors notes when it was brought to his attention that several of them had improperly taken notes as he recited lengthy instructions for deliberations.
It had not been explained to the jurors that the law allows for note-taking in trials of two days or longer, but not while the judge explains the charges.
About 15 minutes after the jury left the courtroom to deliberate, an obviously agitated Judge Woelfel returned to court to discuss with the attorneys how to handle Mrs. Ober's claim she "misunderstood" when it was decided Mr. Troyer would stipulate that he had violated two summary traffic offenses in the fatal crash.
Judge Woelfel advised the attorneys that he had to tell the jury there was no stipulation, as he instructed them during the charge instruction, otherwise the defense could raise the issue of ineffective counsel in the event of a conviction.
Later, Mr. Forray met with members of Mr. Colabine's family, including his parents, Harry and Shirley Colabine, and their surviving children, to discuss the verdict.
The trial was held at their insistence after the couple opposed a deal reached in January that had Mr. Troyer pleading no contest to homicide by vehicle while driving under the influence in exchange for a 3-year to 10-year state prison sentence.
It was at sentencing in March when the elder Colabines voiced their displeasure with the plea and Judge Woelfel decided to let the case "run its course" and be dealt with in a jury trial.
The Colabine's attorney, Kim Best of Sunbury, said the family doesn't regret their decision to oppose the plea however, they were very unhappy with the jury's decision.
"The entire family is very upset with the verdict and we can't understand, with all the evidence that was presented, why they couldn't come up with a logical conclusion that Mr. Troyer was drunk," the family said in a statement.
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