Leachman v. StateLeachman v. State
- Reporters:
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- Before:
- Ellington
A Jackson County jury found Chris Gene Leachman guilty of vehicular homicide,
Leachman contends the trial court erred in denying his plea in bar by allowing the State to prosecute him for vehicular homicide
when the statute of limitation had run on the vehicular homicide’s predicate offense, driving under the influence of alcohol (DUI),
On January 1, 2003, Leachman’s wife, who was a passenger in the car he was driving, was fatally injured in a car accident that occurred as a result of Leachman’s intoxication.
1
Over three years later, on March 7,2006, the grand jury issued a true bill of indictment charging Leachman in Counts 1 and 2 with the vehicular homicide of his wife,
Leachman argues that, even though a four-year statute of limitation applies to vehicular homicide in the first degree, 3 Counts 1 and 2 are also time-barred because the State is required to prove, as an essential element of vehicular homicide, that Leachman caused the victim’s death “ ‘through the violation’ of the DUI statute and the State could not do such since the DUI prosecutions were barred as not timely commenced.” We disagree.
Georgia’s vehicular homicide statute does not require, as an essential element of the offense, that a defendant be charged with or convicted of the predicate offense. Rather, the statute provides:
Any person who, without malice aforethought, causes the death of another person through the violation 0/subsection (a) of Code Section 40-6-163 or subsection (b) of Code Section 40-6-270 or Code Section 40-6-390 or 40-6-391 or subsection (a) of Code Section 40-6-395 commits the offense of homicide by vehicle in the first degree.
(Emphasis supplied.)
the State bears the burden of establishing a causal connection between the defendant’s violation ofOCGA § 40-6-163 , § 40-6-270 (b), § 40-6-390,§ 40-6-391 , or § 40-6-395 and the victim’s death. In other words, the State must prove that the defendant caused the victim’s death by driving in the way prohibited by the predicate driving offense.
(Citations and footnote omitted.)
Henry v. State,
284 Ga. App. 893, 895 (645 SE2d 32)
Therefore, when, as in this case, the DUI predicate offense is set out only as an element of the offense of vehicular homicide and not as a separate crime for which the defendant risks separate criminal liability, we cannot say that the State has commenced a prosecution 5 against the defendant for DUI to which the misdemeanor statute of limitation applies. Rather, the State has commenced a prosecution for vehicular homicide only, and the four-year limitation period applies.
Further, we are also persuaded by the reasoning in the analogous case of State v. Jones, 274 Ga. 287 (553 SE2d 612) (2001). In Jones, the Supreme Court of Georgia addressed whether a felony murder charge, for which there is no statute of limitation, can be struck from an indictment because the felony that acts as the predicate offense for the felony murder charge is time-barred. Id. at 287-288 (1). The Court explained that Georgia’s felony murder statute does not require “that the defendant be charged and convicted of the underlying felony. The jury must simply find that the defendant committed or attempted to commit it.” (Citations and punctuation omitted.) Id. at 288 (1). Because a felony murder conviction is not dependent upon the successful prosecution of the underlying felony, “[t]he mere preclusion of the state’s capacity to prosecute the subordinate crime because of a time limitation has no effect upon the question of whether such crime was committed.” (Citation and punctuation omitted.) Id. Therefore, the Court held that
the underlying felony need not be charged as a separate substantive offense, and the fact that it is time-barred does not preclude a prosecution for felony murder. A felony murder charge may not be separated into its component parts so that if the Statute of Limitations were a bar to the prosecution of one of the elements of the crime, the major crime, the felony murder charge, would also fall. We therefore conclude that the expiration of the limitations period for the underlying felony does not preclude a prosecution for felony murder.
(Citations and punctuation omitted.) Id. This rationale applies in this case where the DUI, though a lesser included offense and an essential element of proof of the greater crime of vehicular homicide, is not required to be charged as a separate substantive offense.
For these reasons we hold that the trial court did not err in denying Leachman’s plea in bar.
Judgment affirmed.
Andrews, P. J., and Adams, J., concur.
Notes
Leachman does not challenge the sufficiency of the evidence supporting his conviction. We present the underlying facts in the light most favorable to the jury’s verdict. Jackson v. Virginia, 443 U. S. 307 (99 SC 2781, 61 LE2d 560) (1979).
Driving under the influence of alcohol is a misdemeanor,
Vehicular homicide in the first degree is a felony,
Because proof of the elements of first degree vehicular homicide necessarily requires proof of the elements of the underlying traffic violation, the underlying traffic violation is a lesser included offense of first degree vehicular homicide under
“ ‘Prosecution’ means all legal proceedings by which a person’s liability for a crime is determined, commencing with the return of the indictment or the filing of the accusation, and including the final disposition of the case upon appeal.”