HEATH v. THE STATE.
A18A2112
In the Court of Appeals of Georgia
March 4, 2019
MCFADDEN, Presiding Judge.
FIFTH DIVISION. RICKMAN and MARKLE, JJ. NOTICE: Motions for reconsideration must be physically received in our clerk’s office within ten days of the date of decision to be deemed timely filed. http://www.gaappeals.us/rules
After a jury trial, Kristine Heath was convicted of homicide by vehicle in the first degree, homicide by vehicle in the second degree, five counts of serious injury by vehicle, and failure to stop for a stop sign.1 The trial court denied Heath’s motion
We reverse Heath’s convictions for homicide by vehicle in the first degree, homicide by vehicle in the second degree, and serious injury by vehicle because her trial counsel provided ineffective assistance by failing to demur to fatally defective counts in the indictment. We do not reach the other claims of error that affect only the convictions based on those counts. We affirm Heath’s conviction for failure to stop at a stop sign.
1. Facts and procedural posture.
Viewed in the light most favorable to the jury’s verdict, Cunningham v. State, 304 Ga. 789, 790 (822 SE2d 281) (2018), the evidence showed that Heath was2
Heath and her group left to go to a restaurant for dinner. Heath drove the group in her vehicle, traveling on Ridge Road towards its intersection with Washington Road three or four miles away. The intersection is governed by a stop sign.
Heath was driving about forty miles per hour, five miles below the posted speed limit. She rounded the last curve before the intersection, drove a 220-foot straightaway, and then ran the stop sign without slowing down; she never applied the brakes.
Heath collided with a Jeep Cherokee traveling on Washington Road in which a driver and five passengers were riding. In the collision, the driver of the Cherokee injured her knees, broke her ankle, broke ribs, and suffered lacerations to her liver. One of the passengers damaged her spleen and liver, bruised her heart, punctured a lung, and broke ribs. A second passenger in the Cherokee broke pelvic bones and fractured an eye socket.
In Heath’s vehicle, one passenger was killed. A second passenger suffered a crushed pelvis and a separation between his sacrum and hip, and lacerated his liver and a kidney. A third passenger broke his pelvis and suffered a contusion to his head.
The jury found Heath guilty of homicide by vehicle in the first degree based on reckless driving; five counts of serious injury by vehicle; and failure to stop at a stop sign. It found Heath guilty of homicide by vehicle in the second degree as a lesser-included offense of homicide by vehicle in the first degree based on driving under the influence of alcohol. The trial court merged the second-degree homicide-by-vehicle conviction and the failure-to-stop-at-a-stop-sign conviction, and sentenced Heath to a total of 15 years imprisonment followed by 15 years probation. In a brief order, the trial court denied Heath’s motion for new trial, and this appeal followed.
2. Ineffective assistance of counsel.
To establish an ineffective assistance claim, an appellant must show not only that [her] counsel’s performance was deficient but also that the deficiency so prejudiced [her] as to create a reasonable probability that but for counsel’s errors, the outcome of the trial would have been different. Failure to satisfy both requirements is fatal to an ineffectiveness claim.
Everhart v. State, 337 Ga. App. 348, 353 (3) (786 SE2d 866) (2016) (citation omitted).
Heath argues that trial counsel was ineffective for failing to file a general demurrer because the indictment omitted material elements in the counts charging homicide by vehicle and serious injury by vehicle.
The Sixth Amendment to the United States Constitution states that criminal defendants shall “be informed of the nature and cause of the accusation against them.” It is established in Georgia that satisfaction of this fundamental principle requires that a criminal indictment which does not recite language from the Code must allege every essential element of the crime charged.
[t]o withstand a general demurrer, an indictment must: (1) recite the language of the statute that sets out all the elements of the offense charged, or (2) allege the facts necessary to establish violation of a criminal statute. If either of these requisites is met, then the accused cannot admit the allegations of the indictment and yet be not guilty of the crime charged.
Jackson v. State, 301 Ga. 137, 141 (1) (800 SE2d 356) (2017). However, “an indictment which omits an essential element of the predicate offense in a count charging a compound offense[, such as vehicular homicide and serious injury by vehicle,] can nonetheless satisfy the requirements of due process as long as the indictment charges the predicate offense completely in a separate count.” Mikenney v. State, 277 Ga. 64, 65 (1) (586 SE2d 328) (2003) (citation and punctuation
In this case, none of the counts charging compound offenses contained the essential elements of the predicate offenses of reckless driving and driving under the influence of alcohol, nor did they allege the facts necessary to establish violations of the predicate offenses. Further, the indictment did not contain separate counts charging the predicate offenses.
“The essential elements of the offense [of reckless driving] are set forth in
The count in the indictment charging first degree vehicular homicide based on reckless driving alleged that Heath:
in the County of Columbia and State of Georgia, on the 17th day of June, 2011, did without malice aforethought, cause the death of [the victim], a human being, through a violation of
Official Code of Georgia Annotated Section 40-6-390 , Reckless Driving, in that said accused, while operating a motor vehicle with six passengers and while distracted by events taking place in the vehicle, failed to stop for a stop sign and entered an intersection at a high rate of speed resulting in a collision with another vehicle, contrary to the laws of said State, the good order, peace and dignity thereof.
This count failed to include “the crucial language that [Heath] drove with reckless disregard for the safety of persons or property. The [indictment] is therefore
The count in the indictment charging first degree vehicular homicide based on driving under the influence of alcohol alleged that Heath:
in the County of Columbia and State of Georgia, on the 17th day of June, 2011, did without malice aforethought, cause the death of [the victim], a human being, through a violation of Official Code of Georgia
The indictment neither recited the language of the statute that sets out all the elements of the driving-under-the-influence offense — that Heath was under the influence of alcohol to the extent that it was less safe for her to drive or that her alcohol concentration was 0.08 or more — nor alleged the facts necessary to establish violation of the driving-under-the-influence statute. Because neither of these requisites was met, Heath could admit the allegations of the indictment and yet not be guilty of driving under the influence. Jackson, 301 Ga. at 141 (1). And because the indictment omitted an essential element of the predicate offense, the count charging a compound offense based on this predicate offense was void. See Everhart, 337 Ga. App. at 355 (3) (a).
The counts in the indictment charging serious injury by vehicle were based on both reckless driving and driving under the influence, and alleged that Heath:
in the County of Columbia and State of Georgia, on the 17th day of June, 2011, did without malice, cause bodily harm to [the victims,] human being[s], by rendering a member of [their] bod[ies] . . . useless through a violation of the
Official Code of Georgia Annotated Section 40-6-390 , Reckless Driving andSection 40-6-391 , Driving Under the Influence of
These counts suffer the same deficiencies as the vehicular homicide counts and likewise were void.
“Had [trial] counsel filed a general demurrer, [these counts] would have been dismissed.” Everhart, 337 Ga. App. at 355 (3) (a). So no convictions for these counts or for lesser-included offenses under these counts could have been obtained. “Accordingly, [Heath’s] trial counsel’s failure to challenge [these] count[s] constitutes deficient performance, contributed to [Heath’s] conviction on [] void count[s], and therefore harmed Heath and prejudiced [her] case.” Id. See also Polk v. State, 275 Ga. App. 467, 469 (1) (620 SE2d 857) (2005) (counsel’s performance was deficient for failing to timely challenge void count of indictment, the failure to do so contributed to defendant’s conviction on a void count, and thus harmed defendant and prejudiced his case). The trial court erred in denying the motion for new trial on this ground and that ruling must be reversed.
We do not reach Heath’s remaining enumerations of error that concern only convictions entered on the void counts of the indictment. We address only the
3. Right to be present at critical stage.
Heath argues that her right under Art. 1, Sec. I, Para. XII of the
At some point, although it is not clear when because it is not included in the trial transcript, there must have been discussion about excusing certain panel members for cause. Then counsel and the court engaged in a bench conference, the bench conference Heath points to as violating her rights, as follows:
COURT: All right. We had talked about a number of people that we were – we talked about a number of people that we were talking about excusing.
DEFENSE COUNSEL: Yes, sir.
COURT: I wanted to — I didn’t want to do that in front of everybody else but we need to sit down and make sure we’re clear on who is excused and who is not excused.
DEFENSE COUNSEL: Judge, it’s number three, . . . the kindergarten teacher and then number ten, . . . the fella with the left ear problem.
COURT: Yeah. And we do not have the equipment. Are y’all both good on that?
COURT: All right, so [number 10] is out. And [number three] is out.
ASSISTANT DISTRICT ATTORNEY: Yes, sir.
COURT: Is there anybody else that y’all are moving to —
DEFENSE COUNSEL: I think those are the only ones for cause.
ASSISTANT DISTRICT ATTORNEY: Yes, sir.
COURT: Those are the only two?
ASSISTANT DISTRICT ATTORNEY: Yes, sir.
COURT: All right, thank you.
After the jury was impaneled and had left the courtroom, the trial court judge stated in open court that there were a number of matters that needed to be placed on the record. The following colloquy occurred:
DEFENSE COUNSEL: Judge, I think all we need to put on the record was that — we did it at the conference but we had agreed to strike for cause jurors number 3 and 10.
COURT: Yes, sir.
DEFENSE COUNSEL: Make sure that was heard well. And the also, Judge, I want to point out that I have talked to my client and she understands that she has the right to hear everything that goes on in the courtroom but that she’s willing to trust me with regard to these bench conferences that deal with administrative details and things of the like to be sort of the conduit for that information.
The appellate record demonstrates that Heath acquiesced to her absence from any bench conference at which the panel members were excused. First, the transcript demonstrates that there had been a discussion about excusing jurors for cause, because at the bench conference about which Heath complains, the trial court judge stated that
Assuming for purposes of this appeal that Heath was absent from a bench trial at which striking jurors was discussed and at which those jurors were actually struck, she has not shown a violation of her constitutional rights. Counsel “made it clear that [Heath] had not been present during a proceeding at which [two of the potential jurors were struck for cause. Heath] did not express any concern about or objection to [her] absence during that discussion, nor did [s]he ask for more details about the matter. . . .” Goodrum v. State, 303 Ga. 414, 416 (III) (812 SE2d 220) (2018). Under these circumstances, Heath acquiesced in her absence from such discussion. Id. at 416-417 (III).
HEATH v. THE STATE.
A18A2112
Court of Appeals of Georgia
RICKMAN, Judge, concurring fully and specially.
I concur with the majority opinion fully, with one reservation regarding the validity of Count 1 of the indictment. On that issue, I believe we are constrained by Jackson v. State, 301 Ga. 137, (800 SE2d 356) (2017), and Howard v. State, 252 Ga. App. 487, (555 SE2d 884) (2001), to reverse, but I believe there is a need for further clarification on whether an indictment that both cites a specific Code section pertaining to a single crime and includes some factual allegations, but does not recite all of the elements of the offense charged, would be a legally sufficient indictment.
In Howard, the defendant was also charged with vehicular homicide due to reckless driving. Howard, 252 Ga. App. at 488 (2). As in this case, the indictment failed to include that the defendant drove with reckless disregard for persons or property. Id. This Court stated that “an indictment for reckless driving under
More recently, in Jackson v. State, the Supreme Court of Georgia established a test to determine if an indictment would withstand a general demurrer. Under that test, an indictment must either: “(1) recite the language of the statute that sets out all the elements of the offense charged, or (2) allege the facts necessary to establish violation of a criminal statute.” Jackson, 301 Ga. at 141 (1). The count of the indictment at issue in Jackson charged the defendant with failure to register as a sex offender, cited to the general sex offender statute, and stated that the defendant failed to register his change of address as required under the statute. Id. at 137. The Supreme Court held that the indictment was not sufficient to withstand a general demurrer because the statute cited in the count was very long with many subsections, the particular subsection the defendant violated was not identified, and the count did not contain enough facts. Id at 142-143 (2). Jackson did not clarify, however, whether the indictment would have been sufficient if, in addition to the factual allegations, it had cited a specific subsection of the relevant statute.
The fate of Count 1 under Jackson, is not as obvious. Count 1 cited to the reckless driving statute which, unlike the statute in Jackson, is a short, specific statute that defines a single crime.1 And Count 1 also included the factual allegations that Heath failed to stop at a stop sign and entered an intersection at a high rate of speed. The combination of the citation to the specific Code section and the given facts clearly put Heath on notice that she was being charged with driving her vehicle in reckless disregard of persons and property. However, based on existing precedent, I feel compelled to agree with the conclusion of the majority that Count 1 is invalid. It would be helpful to have more guidance, when applying the Jackson test, as to
I am authorized to state that Judge Markle joins in this special concurrence.