Lefler v. State, A93A1228
| Decision Date | 21 October 1993 |
| Docket Number | No. A93A1228,A93A1228 |
| Citation | 210 Ga.App. 609,436 S.E.2d 777 |
| Parties | LEFLER v. The STATE. |
| Court | Georgia Court of Appeals |
Bedford, Kirschner & Venker, T. Jackson Bedford, Jr., Atlanta, for appellant.
Lewis R. Slaton, Dist. Atty., Rebecca A. Keel, and Barry I. Mortge, Asst. Dist. Attys., for appellee.
Defendant Arthur David Lefler appeals his conviction for vehicular homicide in the first degree, driving under the influence and failure to stop at or return to the scene of an accident in violation of OCGA § 40-6-270(a).
Construing the evidence in the light most favorable to support the verdict, the evidence shows that on October 20, 1990 at approximately 8:00 a.m., a pedestrian was struck and killed by a brown sports car near the intersection of North Avenue and Peachtree Street in Atlanta. The driver of that vehicle fled the scene. At approximately noon that same day, defendant, while driving a brown Datsun 280Z, was arrested for driving under the influence in Cobb County. At the time of his arrest, defendant's blood-alcohol level was .11 grams percent. The windshield on his car was broken, the bumper was damaged and blood, hair and clothing fragments were on both the windshield and the hood. The State presented evidence that the blood, hair and clothing on defendant's car matched that of the victim struck in Atlanta earlier that day. The State also presented evidence that glass fragments found on the victim matched glass from the windshield of defendant's car.
1. We first address defendant's contention the trial court committed reversible error by failing to grant his plea in bar. Defendant contends his prosecution for vehicular homicide and driving under the influence was barred because jeopardy attached with regard to those crimes when the defendant was convicted of driving under the influence in the Municipal Court of Smyrna prior to being prosecuted in Fulton County Superior Court for the crimes underlying this appeal. OCGA § 16-1-7(b) provides that "[i]f the several crimes arising from the same conduct are known to the proper prosecuting officer at the time of commencing the prosecution and are within the jurisdiction of a single court, they must be prosecuted in a single prosecution." "The same conduct" has been used interchangeably with the phrase "the same transaction." Harrell v. State, 196 Ga.App. 101, 103, 395 S.E.2d 598 (1990); see McCannon v. State, 252 Ga. 515, 518, n. 5, 315 S.E.2d 413 (1984). Defendant's prosecution for driving under the influence in the Municipal Court of Smyrna did not arise from the same transaction as the vehicular homicide and driving under the influence charge for which the defendant was prosecuted in Fulton County Superior Court. The offenses were completed at different times and different locations. Furthermore, jeopardy did not attach in this case because there is no single court with jurisdiction over all the crimes. The Fulton County Superior Court does not have jurisdiction over the offense of driving under the influence within the city limits of Smyrna and likewise the Smyrna Municipal Court is without jurisdiction to try the vehicular homicide and driving under the influence charges for conduct occurring within Fulton County. See OCGA § 17-2-2; Harrell, 196 Ga.App. at 103, 395 S.E.2d 598. We find no error in the trial court's denial of defendant's plea of double jeopardy.
2. Defendant argues the trial court erred by refusing to charge the jury on the lesser included offense of second degree vehicular homicide. Defendant made a written request to charge on that offense. We agree and reverse the conviction. Defendant was charged with vehicular homicide in the first degree by causing the death of the victim with malice aforethought through the violation of OCGA §§ 40-6-391 and 40-6-390. In this case, as in Hayles v. State, 180 Ga.App. 860, 350 S.E.2d 793 (1986), although there was sufficient evidence to authorize defendant's conviction of vehicular homicide in the first degree in the manner charged, there was also evidence that he committed the separate less culpable traffic offenses of speeding and failing to obey a traffic signal. If the jury believed the offense of vehicular homicide was committed as the result of defendant failing to obey a traffic signal or speeding, they would be authorized to find defendant guilty of second degree vehicular homicide. The evidence did not therefore demand a finding that defendant driving under the influence and/or engaging in reckless driving were the proximate causes of the victim's death. We reject the State's argument that the defendant must be charged with a traffic offense involving less culpable...
To continue reading
Request your trial
-
O'Shields v. State, A19A0899
...not be charged with the less culpable traffic offense to be entitled to an instruction on the lesser included offense. Lefler v. State , 210 Ga. App. 609, 610-611 (2), 436 S.E.2d 777 (1993).The evidence here showed that O’Shields tested positive for methamphetamine, amphetamine, and alprazo......
-
Smith v. State
...involving less culpable conduct before a charge on vehicular homicide in the second degree is authorized." Lefler v. State , 210 Ga. App. 609, 610–611 (2), 436 S.E.2d 777 (1993).Here, although there was sufficient evidence to authorize Smith's conviction of vehicular homicide in the first d......
-
O'Shields v. State
...with the less culpable traffic offense to be entitled to an instruction on the lesser included offense. Lefler v. State , 210 Ga. App. 609, 610-611 (2), 436 S.E.2d 777 (1993).The evidence here showed that O'Shields tested positive for methamphetamine, amphetamine, and alprazolam after the a......
-
Hassard v. State
...Hassard drove under the influence of alcohol to the extent he was less safe albeit on the same day. See Lefler v. State, 210 Ga.App. 609, 609–610(1), 436 S.E.2d 777 (1993) (DUI and vehicular homicide prosecution in Fulton County not barred where defendant hit a pedestrian in Fulton County b......