Rоbert Billups appeals from the denial of his plea of former jeopardy in this prosecution for aggravated assault.
On June 6, 1996 Billups fired a rifle at a house at 110 Minor Street in Clarke County, Georgia, where certain persons were sitting on the porch. He was charged with reckless conduct. The arresting *805 officer also swore out warrants for aggravated assault based on the same shooting. In June 1996 the prosecutor filed an accusation in state court against Billups for reckless conduct. In October 1996 Billups was indicted on four counts of aggravated assault arising out of the same shooting. On December 12,1996 Billups pled guilty in state court to reckless conduct. He moved to dismiss the aggravated assault indictments as double jeopardy.
The arrest report contains written reports of statemеnts of witnesses which show there was at least one “victim” of the shooting. One “complainant” was appellant’s girl friend’s mother, who was sitting with her grandchild on the porch of the house and saw appellant “shooting towards [the house].” Another “victim who lives at 110 Minor [Street] saw [appellant] shooting towards her house.” A witness who earlier heard appellant say he was “going to go kill someone” reported seeing a rifle stock sticking out of appellant’s jacket, and hearing shots. The report also, contains a statement of a witness who heard three or four shots and saw that appellant “appeared to be shooting at the people on the front porch at 110 Minor Street.”
At the double jeopardy plea hearing in superior court, the assistant solicitor testified she rеad the arrest report before taking appellant’s plea to reckless conduct but she did not “see all the elements of [aggravated assault].” She admitted she contacted the District Attorney’s office to determine whether appellant had been convicted of any felonies; she “saw an arrest record [which] did not indicate any convictions . . . [and the DA’s employee mentioned] that there were other charges pending.” The DA’s office told her that a 1995 case which was on the arrest record was still pеnding; “if they told me anything about this case . . . [i]t did not connect in my mind with the information I had. . . . [I]t’s possible they told me that there were [pending aggravated assault charges]. . . .”
Defense counsel begged to be allowed to read into the record the arrest report which the prosecutor admitted she had read and which contains evidence of aggravated assault elements. Although defense counsel was trying to show that the prosecutor knew of the aggravated assault elements in the report, and not that anything in the report was true, the trial court ruled the report was hearsay, and further refused to allow the arresting officer to testify to what was in the report on grounds that under
Cates v. State,
The trial court held this aggravated assault prosecution is not barred under OCGA § 16-1-7 (b) because the assistant solicitor did not know of
“charges pending”
in superior court and because the
*806
defendant could have apprised her of the existence of other “crimes arising from the same conduct” (see
Baker v. State,
1. (a) The statutory bar to multiple prosecutions for the same conduct (OCGA § 16-1-7 (b)) requires a single prosecution if the prosecutor knows of several “crimes” arising from the same conduct. The trial court incorrectly interpreted this provision to mean the prosecutor must have knowledge of charges pending.
(b) The trial court erred in refusing to impute to prosecutors a knowledge of the law. The prosecutor read the arrest report containing evidence that appellant shot “at” and “toward” certain people after saying he was going to “kill someone.” The report clearly contains evidence of aggravated assault. Multiple prosecutions for crimes arising from the same conduct have been allowed on grounds the prosecutor did not know all the
facts,
but they have never been justified on grounds the prosecutor did not know the
law.
The rule that everyone is presumed tо know the law is “a violent presumption as to both lawyers and judges.”
Felton v. State,
(с) The trial court also erred in ruling that single prosecutions are required only if a prosecutor knows of other “charges pending” as to the same conduct. The distinction between knowledge of “several crimes” arising from the same conduct (OCGA § 16-1-7 (b)) and knowledge of “рending charges” is vast. In a mobile society with multiple jurisdictions, it is unreasonable to expect prosecutors to know of all other “pending charges” relating to crimes they prosecute, but it is both reasonable and necessary to expect prosecutors to know what crimes arise from certain conduct, so long as they know all the facts of that conduct.
Baker v. State, suрra, adopted a strict reading of OCGA § 16-1-7 (b). The statute does not require a single prosecution only if the prosecutor knows of “pending charges.” The prosecutor who prosecuted Baker on traffic charges did not know the fact that Baker was an habitual violator. The court made it clear that the question was whether the assistant solicitor who prosecuted Baker for driving with no taillights “had actual knowledge of the [habitual violator] offense” Id. at 568.
Baker
relies heavily on
McCannon v. State,
Cates, supra, refers to the prosecutor’s lack of knowledge of “other charges” and “charges pending.” But in fact, what allowed a second proseсution was the prosecutor’s lack of knowledge of the facts of Cates’ conduct and his resulting inability to assess the “several crimes” involved. The arresting officer knew that Cates’ failure to stop at an accident with injuries involved aggravated assaults, but the prosecutor did not know those facts.
Cates
cites
Dickinson v. State,
In
Anderson v. State,
Similar facts control
Zater v. State,
In
Hayles v. State,
In
Farmer v. State,
The prosecutor in this case read the arrest report and she actually knew all the facts and evidence of appellant’s conduct. As an expert in the law she cannot be heard to say she did not know of the “several crimes” arising from that conduct. This prosecution is therefore barred by OCGA §§ 16-1-7 (b) and 16-1-8 (b) (1).
2. Even without regard to the imputed legal knowledge of prosecutor of the “several crimes” arising from certain conduct, the superior court erred in deciding “what the assistant solicitor knew” while refusing to call up the transcript of the reckless conduct plea hearing, particularly after defense counsel noted that the state court judge raised “the issue of a pending aggravated аssault concerning Mr. Billups [and] this same incident.” The reckless conduct plea hearing transcript, in fact, contains evidence from which it may be concluded the prosecutor actually knew about “the aggravated assault charge” arising from the same conduct as the rеckless conduct charge.
We called up the transcript of that earlier prosecution. See OCGA § 5-6-41 (d) and (f). It shows the assistant solicitor advised the state court that appellant was “an inmate”; the judge recited the reckless conduct charge and then rеferred to “new charges [that are] apparently holding [appellant],” and the prosecutor said “I understand he’s not able to make bond on his new charges.” As appellant was entitled to bail as a matter of law on the misdemeanor reckless conduсt charge (OCGA § 17-6-1 (b) (1)), those statements necessarily refer to the new charges of aggravated assault to which appellant pled not guilty three days earlier.
Moreover, the state court judge said: “Do you have a history on him? . . . I’m concerned by what I see here with so many gun — gun violations — weapons violations. [PROSECUTOR]: I have checked with the District Attorney’s office even today and they have some felony cases pending. . . . THE COURT: Is the . . . aggravated assault charge, a felony, . . . still outstanding, too? [PROSECUTOR]: Yes. I checked with the D.A.’s office. It’s still outstanding, the trial.” Thеre is no mention here of a 1995 aggravated assault charge which could not, in any case, be the “new charges.”
3. The trial court erred in holding reckless conduct is not a lesser included offense of aggravated assault. We have held that as a matter of law, reckless conduct is a lesser included offense to aggravated
*809
assault.
Bowers v. State,
4. As the offenses are included, appellаnt could not be convicted in one trial of both reckless conduct and aggravated assault. Therefore he cannot be prosecuted in successive trials
(State v. O’Neal,
If the second prosecution in
Baker
had been unconstitutional, Baker’s failure to tell the prosecutor that he was an habitual violator сould not have saved the prosecution. The real turning point in
Baker
was not the fact that Baker did not reveal his status as an habitual violator; it was the fact that the habitual violator prosecution
was not a re-trial of his traffic offenses
and therefore did not violate his constitutional rights against being tried twicе for the same acts. The state and federal constitutions do not easily allow waiver of former jeopardy rights. See
McClure v. State,
For all these reasons, this aggravated assault prosecution “is jeopardy in the classic sense.”
Kinney v. State,
Judgment reversed.