Kristine Heath v. State, A18A2112

Background

On June 17, 2011, Heath ran a stop sign on Ridge Road and collided with a Jeep on Washington Road; one passenger in Heath’s vehicle died and multiple occupants of both vehicles suffered serious injuries.
Indictment charged: two counts of first-degree homicide by vehicle (one predicated on reckless driving, one on DUI), six counts of serious injury by vehicle (based on reckless driving and DUI), failure to stop at a stop sign, and open-container (two counts later nolle prossed).
Jury convicted Heath of first-degree vehicular homicide (reckless-driving theory), second-degree vehicular homicide (lesser-included DUI theory), five counts of serious injury by vehicle, and failure to stop at a stop sign; court merged some convictions and sentenced Heath to 15 years imprisonment plus 15 years probation.
Heath moved for a new trial; the trial court denied the motion. On appeal, Heath argued insufficient evidence for felonies, ineffective assistance of counsel, denial of right to be present at a critical stage, and jury-instruction error on proximate cause.
Court of Appeals held trial counsel was ineffective for failing to demur to defective indictment counts that omitted essential elements of the predicate offenses (reckless driving and DUI), reversed those felony convictions, and affirmed the failure-to-stop conviction; other claims tied solely to the vacated counts were not reached.

Issues

Issue	Plaintiff's Argument	Defendant's Argument	Held
Whether counsel was ineffective for failing to demur to felony counts	Heath: indictment omitted essential elements of predicate offenses; counsel should have demurred	State: convictions stand; counts as charged were sufficient for trial	Court: counsel deficient; counts were fatally defective; convictions on those counts reversed
Whether vehicular-homicide and serious-injury counts sufficiently alleged predicate offenses (reckless driving, DUI)	Heath: counts failed to recite elements (e.g., "reckless disregard"; specific DUI element)	State: citation of statutes and factual allegations sufficed to put defendant on notice	Court: counts omitted essential elements and did not allege predicate offenses in separate counts; therefore void under Georgia law
Whether Heath’s absence from bench conference excusing two potential jurors violated her right to be present	Heath: exclusion of jurors occurred during a bench conference she did not attend, violating constitutional right to be present at critical stages	State: defense counsel acquiesced and placed record showing consent; no prejudice	Court: Heath acquiesced via counsel’s on‑record statements and did not object; no violation found
Whether Heath may be re‑indicted on vacated felony counts	Heath: implied concern about retrial exposure	State: not directly argued in opinion	Court: statute of limitations has run; Heath may not be re‑indicted on those counts

Key Cases Cited

Cunningham v. State, 304 Ga. 789 (discussion of standard for viewing evidence) (Ga. 2018)
Everhart v. State, 337 Ga. App. 348 (ineffective assistance standard and consequences of failing to demur to void indictment counts) (Ga. Ct. App. 2016)
Smith v. Hardrick, 266 Ga. 54 (indictment must allege every essential element) (Ga. 1995)
Brown v. State, 322 Ga. App. 446 (test for sufficiency of indictment re: defendant admitting allegations yet remaining innocent) (Ga. Ct. App. 2013)
Jackson v. State, 301 Ga. 137 (indictment must recite statutory language or allege facts establishing offense) (Ga. 2017)
Mikenney v. State, 277 Ga. 64 (compound-offense indictment may be saved if predicate offense is charged separately) (Ga. 2003)
Ross v. State, 235 Ga. App. 7 (reckless-driving element requires allegation of "reckless disregard") (Ga. Ct. App. 1998)
Lee v. State, 280 Ga. App. 706 (elements of DUI less-safe offense) (Ga. Ct. App. 2006)
Howard v. State, 252 Ga. App. 487 (vehicular-homicide indictment and sufficiency where another count charged the predicate offense) (Ga. Ct. App. 2001)
Borders v. State, 270 Ga. 804 (indictment void if it omits necessary element) (Ga. 1999)
Polk v. State, 275 Ga. App. 467 (prejudice where counsel fails to challenge void count) (Ga. Ct. App. 2005)
Owens v. State, 303 Ga. 254 (trial court duty to avoid undue delay in post-conviction proceedings) (Ga. 2018)
Goodrum v. State, 303 Ga. 414 (acquiescence to absence from proceedings) (Ga. 2018)
State v. Outen, 296 Ga. 40 (statute-of-limitations considerations for reindictment) (Ga. 2014)