THE STATE v. MONDOR; and vice versa.
S19A0209, S19X0210
SUPREME COURT OF GEORGIA
2019
306 Ga. 338
WARREN, Justice.
FINAL COPY
WARREN, Justice.
At the motions hearing, Mondor argued that the indictment should be dismissed because it fails to state all the elements of hit and run in both counts, and in particular fails to state the mens rea required to commit hit and run; that
The trial court dismissed the indictment because it was not “perfect in form and substance,” concluding that the hit-and-run count (Count 2) did not allege the essential element of mens rea — i.e., that Mondor had “knowledge of the death, damage or injury” caused by an accident involving him. In the same order, the trial court denied Mondоr‘s motion to present seatbelt-use evidence, declining to “find an exception” to the well-established “bar against seatbelt use evidence” under
The State appeals in Case Number S19A0209, and Mondor cross-appeals in Case Number S19X0210.2 For the reasons that follow, we reverse the trial court‘s dismissal of the indictment in Case Number S19A0209, and we affirm the exclusion of seatbelt-use evidence in Case Number S19X0210, albeit for reasons different from those that the trial court gave.
Case No. S19A0209
1. The State contends that the trial court “erred by granting Mondor‘s special demurrer” to Count 2 and by dismissing the indictment. As an initial matter, both the State and Mondor appear to agree that the trial court dismissed the indictment because Count 2 failed to withstand a special demurrer.3
Magic words are not required to file a demurrer, and the substance and function of a motion or pleading generally controls our review. See Gulledge v. State, 276 Ga. 740, 741 (583 SE2d 862) (2003) (“[T]here is no magic in nomenclature and . . . substance controls our consideration of plеadings.“); State v. Henderson, 283 Ga. App. 111, 112 n.6 (640 SE2d 686) (2006) (evaluating and reversing trial court‘s dismissal of a criminal charge and noting that even where a defendant should have filed a demurrer instead of a motion to dismiss, it “is the substance and function of a motion and not its nomenclature that controls” (citation and punctuation omitted)). Here, Mondor argued — and the trial court ultimately concluded — that Count 2 of the indictment “fail[ed] to allege every essential element . . . since it makes no mention of any knowledge by the Defendant of any death, damage[,] or injury.” This type of “challenge to the sufficiency of an indictment because it fails to set forth all of the essential elements of the charged crime is properly considered a genеral demurrer.” Strickland v. State, 349 Ga. App. 673, 674 (824 SE2d 555) (2019); see also Kimbrough v. State, 300 Ga. 878, 880 (799 SE2d 229) (2017) (a general demurrer “challenges the sufficiency of the substance of the indictment“) (citation and punctuation omitted; emphasis in original).4 In this regard, we direct the parties to the helpful analogy to the Civil Practice Act expressed in Kimbrough: “A motion to dismiss for failure to state a claim under
Our review of the trial court‘s ruling does not turn on whether the indictmеnt could have been made clearer or more definite, but most importantly whether it “contains the elements of the offense charged.” Smith v. State, 303 Ga. 643, 647 (814 SE2d 411) (2018); see also Atkinson v. State, 301 Ga. 518, 526 (801 SE2d 833) (2017) (“A general . . . demurrer to the indictment would not have been successful, as the indictment properly set out all of the facts and elements of the crimes necessary to show that Atkinson could be found guilty of the crimes alleged . . . .“). To the extent that an indictment “fails to allege all the essential elements of the crime or crimes charged,” including the required mens rea, it violates due process, is void, and cannot withstand a general demurrer. Jackson v. State, 301 Ga. 137, 139-140 (800 SE2d 356) (2017) (holding that indictment was fatally defective and did not withstand a general demurrer where it alleged violation of a specified criminal code section but did not
Here, Count 2 of the indictment charged Mondor with hit and run under
(a) The driver of any vehicle involved in an accident resulting in injury to or the death of any person or in damage to a vehicle which is driven or attended by any person shall immediately stop such vehicle at the scene of the accident or shall stop as close thereto as possible and forthwith return to the scene of the accident and shall:
(1) Give his or her name and address and the registration number of the vehicle he or she is driving;
(2) Upon request and if it is available, exhibit his or her operator‘s license to the person struck or the driver or occupant of or person attending any vehicle collided with;
(3) Render to any person injured in such accident reasonable assistance, including the transporting, or the making of arrangements for the transporting, of such person to a physician, surgeon, or hospital for medical or surgical treatment if it is apparent that such treatment is necessary or if such transporting is requested by the injured person; and
(4) Where a person injured in such accident is unconscious, apрears deceased, or is otherwise unable to communicate, make every reasonable effort to ensure that emergency medical services and local law enforcement are contacted for the purpose of reporting the accident and making a request for assistance.
The driver shall in every event remain at the scene of the accident until fulfilling the requirements of this subsection. Every such stop shall be made without obstructing traffic more than is necessary.
(b) If such accident is the proximate cause of death or a serious injury, any person knowingly failing to stop and comply with the requirements of subsection (a) of this Code section shall be guilty of a fеlony and, upon conviction thereof, shall be punished by imprisonment for not less than one nor more than five years.
(c) (1) If such accident is the proximate cause of an injury other than a serious injury or if such accident resulted in damage to a vehicle which is driven or attended by any person, any person knowingly failing to stop or comply with the requirements of this Code section shall be guilty of a misdemeanor and [shall be fined or imprisoned for up to 12 months, or both]. . . .
was involved in an accident . . . which was the proximate cause of the death of Bradley Braland, the victim, did knowingly fаil to stop and comply with the requirements of O.C.G.A. § 40-6-270 (a), to wit: said accused, being the driver of a vehicle involved in an accident resulting in injury to and the death of Bradley Braland, a person, did fail to immediately stop said accused‘s vehicle at the scene of the accident and did fail to stop said accused‘s vehicle as close thereto as possible and forthwith return to the scene of the accident;
. . . in violation of O.C.G.A. § 40-6-270 (b); contrary to the laws of [this] State.
(Emphasis supplied.) Because Mondor “cannot admit the allegations” in Count 2 of the indictment and “be not guilty of the crime charged,” Count 2 is not vulnerable to a general demurrer. Jackson, 301 Ga. at 141; see also Allen, 300 Ga. at 502. Indeed, if Mondor admitted that he “was involved in an aсcident . . . which was the proximate cause of the death of Bradley Braland,” and that he “did knowingly fail to stop and comply with the requirements of
Nevertheless, Mondor argued below, and the trial court ultimately determined, that the indictment omitted an essential element of the hit-and-run offense alleged in Count 2: knowledge that “an accident had occurred resulting in death, damage, or injury to another.” Dworkin v. State, 210 Ga. App. 461, 462 (436 SE2d 665) (1993); see also Sevostiyanova v. State, 313 Ga. App. 729, 739 (722 SE2d 333) (2012). Pointing to Dworkin, which the trial court cited in its order dismissing the indictment, Mondor contends on appeal that “knowledge of the death, damage or injury is generally a prerequisite to conviction, even though the statute does not expressly require such knowledge by the motorist,” and that “knowledge is, of course, an element of the offense.” Dworkin, 210 Ga. App. at 462. In essence, Mondor argues that the trial court correctly dismissed the indictment because “an individual cannot be punished for failing to return to the scene of an accident if he did not know that he was involved in an accident.” To hold otherwise, he contends, would transform hit and run into a strict-liability offense.
We disagree that the indictment failed to allege mens rea or any other essentiаl element of hit and run. First, both Mondor‘s argument and the trial court‘s order ignore that Count 2 of the indictment tracks
Case No. S19X0210
2. In his cross-appeal, Mondor contends that
For many of the same reasons, we also do not reach the question of whether
We begin by evaluating whether seatbelt-use evidence is relevant to causation under circumstances like these, and in so doing we turn to the text of Georgia‘s hit-and-run statute. That statute makes clear that for an accident to qualify as a felony hit-and-run offense under
We next turn to the statutory exclusion of seatbelt-use evidence, which also references causation. That statute provides that “[t]he failure of an occupant of a motor vehicle to wear a seat safety belt . . . shall not be considered evidence of negligence or causation [and] shall not otherwise be considered by the finder of fact on any question of liability of any person[.]”
To be sure, the Court of Appeals has before cited a prior version оf
also are proximate causes of the death‘“; and “‘in the criminal context it simply is not relevant that the victim was negligent, unless the defendant‘s conduct did not substantially contribute to the cause of death.‘” Whitener, 201 Ga. App. at 311 (citation omitted; emphasis supplied and in original).
Although the Court of Appeals in Whitener relied on cases involving seatbelt use from outside of Georgia to reach its holding, the legal principles set forth in those cases are аlso well established in Georgia law. Foremost among them is the principle that “[c]ontributory negligence, as such, has no place in the law of crime.” Cain v. State, 55 Ga. App. 376, 377 (190 SE 371) (1937) (if the defendant‘s criminal negligence “is found to be the cause of the death, he is criminally responsible, whether or not the decedent‘s failure to use due care contributed to the injury“); see also id. at 382 (recognizing that the defendant would not be guilty if the negligent act of the deceased was the sole proximate cause of his death, as in the case of a self-inflicted wound or injury). “‘A criminal trial for infraction of traffic laws does not involve such matters as the relative diligence or negligence of parties to a collision, but concerns only whether or not the defendant on trial is guilty of the violation with which he is charged.‘” Payne v. State, 138 Ga. App. 358, 359-360 (226 SE2d 152) (1976) (citation omitted). And in a criminal case where the defendant is charged with hit and run and vehicular homicide, the key question is whether the defendant‘s conduct proximately caused the victim‘s death. See Hoffer v. State, 192 Ga. App. 378, 383 (384 SE2d 902) (1989) (in vehicular homicide case, holding that the trial court did not abuse its discretion by excluding seatbelt evidence as irrelevant because the question for the jury was “not whether the death would or could have been made less likely by wearing a seatbelt,” but whether the defendant “caused the death by running the red light“) (citing Wilson v. State, 190 Ga. 824, 829 (10 SE2d 861) (1940)). Acknowledging all of these principles, the Court of Appeals has followed and quoted Whitener in multiple cases to hold that the use of a safety restraint is altogether irrelevant in determining causation in a criminal case. See Baysinger v. State, 257 Ga. App. 273, 273-274 (570 SE2d 593) (2002) (improper placement by the child-victim‘s parents of the child‘s car seat “did not break the causal connection between the defendant‘s wrongful conduct and the child‘s serious injuries,” and the evidence was therefore sufficient to support the defendant‘s conviction of serious injury by vehicle); Fletcher v. State, 307 Ga. App. 131, 132 (704 SE2d 222) (2010) (separate and apart from
Despite this body of case law from our Court of Appeals, the issue presented here — namely, whether a victim‘s alleged negligence in not wearing a seatbelt is relevant to causation in a criminal case — is one of first impression for this Court. To reach the answer, we, like the Court of Appeals, look to Georgia law on proximate causation. It is well established that proximate cause in a criminal case “exists when the accused‘s act or omission played a substantial part in bringing about or actually causing the victim‘s injury or damage and the injury or damage was either a direct result оr a reasonably probable consequence of the act or omission.” Rivers v. State, 296 Ga. 396, 404 (768 SE2d 486) (2015) (citation and punctuation omitted). See also Jackson, 287 Ga. at 648-649. In homicide cases, an unlawful injury inflicted by the defendant is deemed the proximate cause of death whenever “the injury itself constituted the sole proximate cause of the death,” “the injury directly and materially contributed to the happening of a subsequent accruing immediate cause of the death,” or “the injury materially accelerated the death, although proximately occasioned by a pre-existing cause.” Stribling v. State, 304 Ga. 250, 253 (818 SE2d 563) (2018) (quoting Wilson, 190 Ga. at 829 (punctuation omitted)). See also Jackson, 287 Ga. at 649 (quoting Wilson, 190 Ga. at 829). “Proximate cause thus imposes liability for the reasonably foreseeable results of a criminal act if there is no independent and unforeseen intervening cause.” Stribling, 304 Ga. at 253. See also Jackson, 287 Ga. at 651, 654. This principle applies in vehicular homicide cases, Ogilvie, 292 Ga. at 11, and is deeply embedded in Georgia law. See, e.g., Menzies v. State, 304 Ga. 156, 161 (816 SE2d 638) (2018); Robinson v. State, 298 Ga. 455, 458 (782 SE2d 657) (2016); Wilson v. State, 297 Ga. 86, 87 (772 SE2d 689) (2015).
Here, application of those well-established legal principles leads to the conclusion that a victim‘s failure to wear a seatbelt in a case like this is not an intervening cause and would not prevent a car accident from constituting the proximate cause of death of a passenger in a car involved in the accident. Indeed, contrary to Mondor‘s characterizations on appeal, a car passenger‘s failure to wear a seatbelt is not, generally speaking, an intervening cause at all. Instead, in most instances it is better described as a pre-existing or concurrent proximate cause, see Whitener, 201 Ga. App. at 311 (failure to wear a seatbelt better described as a “condition precedent” to a car accident or as “contribut[ing] to the death of a victim“), especially given that failure to
but again in the context of this case: if the jury in a criminal trial were to determine that Mondor caused an accident that was a substantial contributing cause of Braland‘s death, then the causation element of hit and run and vehicular homicide, as set forth in
3.
Mondor also contends that ”
The trial court also did not rule on the vagueness challenge that is directed to the statutory causation requirements. Instead, the trial court‘s written order merely acknowledged Mondor‘s request for an exact definition of the word “cause” in
Judgment аffirmed in Case No. S19X0210. Judgment reversed in Case No. S19A0209. All the Justices concur.
Decided June 28, 2019.
D. Victor Reynolds, District Attorney, Amelia G. Pray, Patricia G. Hull, Assistant District Attorneys; Christopher M. Carr, Attorney General, Patricia B. Attaway Burton, Deputy Attorney General, Paula K. Smith, Senior Assistant Attorney General, for appellant.
Scott P. Semrau, for appellee.
Notes
Failure to wear a seat safety belt in violation of this Code section shall not be considered evidence of negligence, shall not be considered by the court on any question of liability of any person, corporation, or insurer, shall not be any basis for cancellation of coverage or increase in insurance rates, and shall not diminish any recovery for damages arising out of the ownership, maintenance, occupancy, or operation of a passenger vehicle.
Ga. L. 1988, p. 31, § 1. In 1999, subsection (d) was amended to add the words “or causation” and make other minor changes, so as to provide:The failure of an occupant of a motor vehicle to wear a seat safety belt in any seat of a motor vehicle which has a seat safety belt or belts shall not be considered evidence of negligence or causation, shall not otherwise be considered by the finder of fact on any question of liability of any person, corporation, or insurer, shall not be any basis for cancellation of coverage or increase in insurance rates, and shall not be evidence used to diminish any recovery for damages arising out of the ownership, maintenance, occupancy, or operation of a motor vehicle.
Ga. L. 1999, p. 276, § 1 (emphasis supplied). Subsection (d) of