Leachman v. State

• Decision Date: 20 July 2007
• Docket Number: No. A07A1145.,A07A1145.
• Citation: Leachman v. State, 649 S.E.2d 886, 286 Ga.App. 708 (Ga. App. 2007)
• Parties: LEACHMAN v. The STATE.
• Court: Georgia Court of Appeals

286 Ga. App. 708

649 S.E.2d 886

LEACHMAN v. The STATE.

No. A07A1145.

Court of Appeals of Georgia.

July 20, 2007.

McArthur & McArthur, John J. McArthur, Athens, for appellant.

Timothy G. Madison, District Attorney, Robin R. Riggs, Assistant District Attorney, for appellee.

ELLINGTON, Judge.

A Jackson County jury found Chris Gene Leachman guilty of vehicular homicide, OCGA § 40-6-393. Leachman appeals from the judgment of conviction, contending the trial court erred in denying his plea in bar. Finding no error, we affirm.

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), OCGA § 40-6-391. When a question of law is at issue, such as whether the statute of limitation bars an action, "we owe no deference to the trial court's ruling and apply the plain legal error standard of review." (Citation, punctuation and footnote omitted.) Epps v. Hin, 255 Ga.App. 370, 371, 565 S.E.2d 577 (2002); Wright v. State, 284 Ga. App. 169, 643 S.E.2d 538 (2007). The relevant facts are as follows.

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, OCGA § 40-6-393, and in Counts 3 and 4 with DUI, OCGA § 40-6-391. Following a hearing on Leachman's plea in bar, the State conceded the DUI counts were time-barred² and, therefore, redacted the indictment to omit those counts. The trial court denied Leachman's plea in bar with respect to the vehicular homicide counts, allowing the State to go forward with its prosecution on the redacted indictment. Both of these alternate counts alleged that Leachman caused the victim's death "by committing the offense of driving under the influence," pursuant to OCGA § 40-6-391(a). Count 1 alleged DUI in that Leachman had a blood alcohol concentration of 0.08 grams or greater, and Count 2 in that Leachman was intoxicated to the extent he was a less safe driver. After the jury returned its guilty verdicts, the trial court merged Count 2 into Count 1.

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 of 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.) OCGA § 40-6-393(a). As we have explained "through the violation of" means that

the State bears the burden of establishing a causal connection between the defendant's violation of OCGA § 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 S.E.2d 32 (2007). Moreover, although a statutory predicate driving offense may be set out as a separate count of the indictment, a defendant may not be convicted of both a lesser included predicate offense and the greater vehicular homicide offense. As we have held, DUI constitutes a lesser included offense of first degree vehicular homicide⁴ and therefore merges into the crime of first degree vehicular homicide. Harris v. State, 272 Ga.App. 366, 373-374(6), 612 S.E.2d 557 (2005). Thus, Georgia law neither requires a formal charge nor a conviction before a DUI may serve as a predicate offense for vehicular homicide nor does it allow a lesser included DUI predicate offense to stand as a separate conviction when the defendant has been convicted of the greater crime, the vehicular homicide.

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 S.E.2d 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), 553 S.E.2d 612. 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), 553 S.E.2d 612. 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...