McNeely v. State, 296 Ga. 422

Background

Appellant Nebula McNeely and accomplice Tiara Smith shoplifted from a Marshall’s; McNeely assaulted loss-prevention staff and fled to an SUV where a six-year-old also was a passenger.
A Columbia County sheriff’s motorcycle officer pursued the SUV after radio dispatch; the SUV sped through intersections, ran a red light, and collided with another vehicle, killing two occupants and causing the loss of an unborn child; the six-year-old suffered serious injuries.
Smith (the driver) pleaded guilty and testified that McNeely urged her to speed up and run the light; McNeely admitted shoplifting and prior convictions but denied encouraging flight.
McNeely was convicted of misdemeanor shoplifting, fleeing and attempting to elude a police officer, two counts of felony murder (based on the felony of fleeing), feticide, two counts of serious injury by vehicle (reckless driving), and cruelty to a child (child unrestrained while vehicle operated recklessly).
On appeal McNeely challenged sufficiency of evidence for the fleeing/evading charge and related felony convictions and argued certain convictions should merge for sentencing.
The Supreme Court of Georgia affirmed convictions for all offenses but vacated and merged the separate sentence for the fleeing-and-eluding conviction into the felony-murder/feticide sentences; it rejected merger of cruelty-to-children with serious-injury-by-vehicle.

Issues

Issue	McNeely's Argument	State's Argument	Held
Sufficiency of evidence for fleeing/attempting to elude (OCGA §40-6-395) when defendant was a passenger	McNeely: she was a passenger with no ability to stop the car or control the driver; passenger liability unsupported	State: McNeely was a party to the crime by aiding/abetting or encouraging Smith; accomplice testimony corroborated by circumstantial evidence	Evidence sufficient; passenger can be convicted as party where corroborating circumstantial evidence shows encouragement/participation
Sufficiency of evidence for felony murder and feticide predicated on fleeing-and-eluding	McNeely: underlying felony (fleeing) insufficient, so felony murder/feticide fail	State: underlying felony sufficiently proved by accomplice testimony plus corroboration	Evidence sufficient to support felony murder and feticide convictions
Sufficiency of evidence for reckless-driving–based offenses (serious injury by vehicle; cruelty to a child) though defendant was not the driver	McNeely: cannot be convicted of driving-related offenses if not the driver; only uncorroborated accomplice testimony shows she "egged on" driver	State: defendant can be a party to reckless driving by intentionally advising, encouraging, or procuring the driver; accomplice testimony corroborated by defendant’s conduct	Evidence sufficient to convict McNeely as a party to reckless-driving offenses and cruelty to a child
Sentencing merger: whether fleeing-and-eluding sentence must merge with felony-murder/feticide	McNeely: underlying fleeing felony merges with felony murder and should not receive separate sentence; also argued serious-injury and cruelty-to-children should merge	State: conceded long-standing rule that underlying felony merges with felony murder; argued serious-injury and cruelty counts are distinct	Court vacated the separate fleeing-and-eluding sentence (merged with felony murder/feticide); rejected merger of cruelty-to-children and serious-injury-by-vehicle because each requires proof the other does not

Key Cases Cited

Carter v. State, 249 Ga. App. 354 (affirming standards for passenger liability where evidence failed in that case)
Sutton v. State, 295 Ga. 350 (circumstantial and pre/post-crime conduct may corroborate accomplice testimony)
Westmoreland v. State, 287 Ga. 688 (applies corroboration rule to fleeing/attempting to elude)
Cooper v. State, 281 Ga. App. 882 (passenger liability and party-to-crime principles)
Browner v. State, 665 S.E.2d 348 (credibility and conflict resolution are for the jury)
Dixon v. State, 294 Ga. 40 (standards for sufficiency review under Jackson v. Virginia)
Bivins v. State, 166 Ga. App. 580 (passenger conviction for fleeing-and-eluding affirmed)
Guzman v. State, 262 Ga. App. 564 (party liability where defendant supplied means and encouraged commission of offense)
Jackson v. Virginia, 443 U.S. 307 (standard for sufficiency of the evidence)
Johnson v. State, 293 Ga. 641 (underlying felony merges with felony murder for sentencing)
Ferguson v. State, 280 Ga. 893 (applies merger rule to fleeing-and-eluding underlying felony)
Drinkard v. Walker, 281 Ga. 211 (test for merger: each offense must require proof the other does not)