MOULTRIE — In the second day of a vehicular homicide trial, a Colquitt County jury found the surviving driver guilty but of a lesser offense.

Jerry Tawan Bankston was convicted Thursday on two counts of homicide by vehicle in the second degree.

Bankston was charged with first degree homicide by vehicle. For the jury to convict him of that offense, the prosecution would have had to establish he was driving recklessly. The statute gives a broad definition of reckless, the attorneys said.

To convict him of second degree vehicular homicide, the jury had to determine if he violated a traffic law by failure to yield the right of way.

On Oct. 26, 2004, Bankston, 26, was driving a Chevrolet Caprice north on Ga. Highway 133. Just before Doerun, he collided head-on with a white Oldsmobile Alero on his third attempt to pass a six-wheel delivery truck. Joan Matz, 67, of Moultrie, died at the scene. Her passenger, Ester Major, 66, also of Moultrie, suffered internal injuries and died several hours later at Colquitt Regional Medical Center.

The Georgia State Patrol Specialized Collision Reconstruction Team (SCRT) determined that Matz had reacted to the oncoming Caprice three seconds before impact and had braked to slow the Alero from 52 miles per hour to 35. Bankston, Assistant District Attorney Brian McDaniel emphasized, had to have accelerated to between 77 mph and more than 81 mph after traveling behind the delivery truck. The driver of the delivery truck testified to driving about 55 mph, the posted speed limit.

The SCRT team had concluded that day was sunny and clear, there were no mechanical failures in either car, the women were wearing seatbelts but Bankston was not and airbags in both vehicles were deployed. The team also found that the Caprice’s left tires crossed the outside of the fog line as he darted out beside the delivery truck in an attempt to pass. Neither driver was under the influence of alcohol or drugs, forensic testimony said.

SCRT determined Bankston went too far left toward the shoulder of the road and tried to correct the vehicle just prior to impact, testimony said. But there were no skid marks nor was there any airbag device data to indicate that he ever applied brakes, testimony said.

McDaniel said in closing arguments that Bankston had a “need for some speed” and that his disregard for caution caused the deaths of two women. Assistant Public Defender Catherine Smith countered that speed alone under the law is not enough to be driving recklessly and that the collision was a tragic accident.

McDaniel noted that he pulled completely into the oncoming lane twice before the collision with the Alero on the third try.

Smith had argued that Bankston wasn’t driving reckless. The fact that he attempted twice to pass but pulled back behind the delivery truck to avoid oncoming traffic was an indication that he wasn’t driving reckless, she said. The defendant had to pull out to see if there was oncoming traffic, she said.

“He exercised caution. He exercised restraint,” she said.

The fact that the collision occurred at the side of the truck was an indication that Bankston had no time to react, she said.

McDaniel argued that Bankston was tailgating the delivery truck so that his view was obstructed, which is reckless.

“Mr. Bankston took no precaution for his own safety and took none for Mrs. Major and Mrs. Matz,” McDaniel said.

Smith also argued that the state failed to identify Bankston through testimony at trial as the driver of the Caprice, a legal technicality that McDaniel countered in closing. The car belonged to Bankston, his driver’s license was taken into evidence after the wreck and he was treated at CRMC for a severe fracture to his leg.

A point of fact came up in testimony Wednesday that again McDaniel addressed briefly in closing despite Smith not bringing it to the jury’s attention at all: One of the victims, Ester Major, was a Jehovah’s Witness and had refused blood transfusions. The testifying doctor said she had an at best 50/50 chance of surviving the internal injuries she received in the crash. McDaniel told the jury that Major’s faith-based decision did not alter Bankston’s culpability.

“He has to accept these consequences,” the prosecutor said.

Bankston, as is his right, did not testify, and no witnesses were called in his defense.

Out of earshot of the jury, Chief Judge H. Arthur McLane ruled that Bankston was not guilty on an associated, lesser charge on failure to drive in proper lane because of a typographical error in the indictment.

McLane set sentencing for Bankston Jan. 17 at the Colquitt County Justice Center.

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