State v. Mondor

Decision Date28 June 2019
Docket NumberS19A0209, S19X0210
Citation830 S.E.2d 206,306 Ga. 338
Parties The STATE v. MONDOR; and vice versa.
CourtGeorgia Supreme Court

D. Victor Reynolds, District Attorney, Amelia Greeson Pray, Patricia Gail Hull, A.D.A., Cobb County District Attorney's Office, 70 Haynes Street Marietta, Georgia 30090-9638, Christopher M. Carr, Attorney General, Paula Khristian Smith, Senior Assistant Attorney General, Patricia B. Attaway Burton, Deputy Attorney General, Department of Law, 40 Capitol Square, S.W., Atlanta, Georgia 30334, for the State.

Scott Patrick Semrau, Semrau & Burns, Attorneys at Law, 242 Lawrence Street, N.E., Marietta, Georgia 30060, for Mondor.

Warren, Justice.

In this criminal case, the State appeals from an order dismissing an indictment against Dannie Albert Mondor, who cross-appeals. The indictment charged Mondor with homicide by vehicle in the first degree, in violation of OCGA § 40-6-393 (b), predicated on a hit-and-run offense (Count 1), and hit and run in violation of OCGA § 40-6-270 (b) (Count 2). Mondor filed demurrers to the indictment, as well as a motion to present evidence that Bradley Braland—who died as a result of the accident set forth in the indictment—was not wearing his seatbelt.1

Evidence presented at a motions hearing showed that while Mondor was driving a large recreational vehicle and towing a trailer on an interstate highway, his front right bumper allegedly made contact with the left rear bumper of a second vehicle, causing it to strike a third vehicle. Braland, a passenger in the third vehicle, was ejected and later pronounced dead at the scene. After the collisions, Mondor stopped briefly on the side of the highway at a nearby exit. He then proceeded several more miles to another exit, where he stopped in a parking lot, called the police, and waited to make a report on the accident.

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 OCGA § 40-8-76.1 (d) —a statute that precludes evidence of failure to wear a seatbelt—is unconstitutional as applied to him because it prevents him from presenting a full and complete defense to the charges in the indictment that he violated OCGA §§ 40-6-270 (b) and 40-6-393 (b) when he caused an accident that "caused" the victim’s death; and that the hit-and-run and vehicular-homicide statutes are unconstitutionally vague as applied to him.

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 Mondor’s motion to present seatbelt-use evidence, declining to "find an exception" to the well-established "bar against seatbelt use evidence" under OCGA § 40-8-76.1. Finally, the trial court also declined Mondor’s request—related to his claims of unconstitutional vagueness—to "declare an exact definition of the word ‘cause’ as used in OCGA § 40-6-393."

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

But we disagree with the parties’ characterization of the trial court’s action below. In sum, the trial-court action being challenged is best understood as dismissing the indictment because the hit-and-run count (Count 2) did not survive a general demurrer.

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 S.E.2d 862 (2003) ("[T]here is no magic in nomenclature and ... substance controls our consideration of pleadings."); State v. Henderson , 283 Ga. App. 111, 112 n.6, 640 S.E.2d 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"). 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 general demurrer." Strickland v. State , 349 Ga. App. 673, 674, 824 S.E.2d 555 (2019) ; see also Kimbrough v. State , 300 Ga. 878, 880, 799 S.E.2d 229 (2017) (a general demurrer "challenges the sufficiency of the substance of the indictment) (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 OCGA § 9-11-12 (b) (6) performs substantially the same function as a general demurrer," while "a motion for a more definite statement under OCGA § 9-11-12 (e) is in some ways ‘the modern replacement for a special demurrer.’ " 300 Ga. at 881 n.12, 799 S.E.2d 229. We therefore review the trial court’s order based on the understanding that the indictment was dismissed based on a general demurrer, and we conduct that review "de novo in order to determine whether the allegations in the indictment are legally sufficient." State v. Cohen , 302 Ga. 616, 618, 807 S.E.2d 861 (2017) (citation and punctuation omitted).

Our review of the trial court’s ruling does not turn on whether the indictment 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 S.E.2d 411 (2018) ; see also Atkinson v. State , 301 Ga. 518, 526, 801 S.E.2d 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 S.E.2d 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 "set out all the elements of the offense" or "allege all the facts necessary to establish" a violation); Henderson v. Hames , 287 Ga. 534, 538, 697 S.E.2d 798 (2010) (holding that the omission of the statutory mens rea element rendered the indictment void). On the other hand, if an indictment does "recite the language of the statute that sets out all the elements of the offense charged" or "allege the facts necessary to establish violation of a criminal statute," then the indictment is sufficient to withstand a general demurrer because "the accused cannot admit the allegations of the indictment and yet be not guilty of the crime charged." Jackson , 301 Ga. at 141, 800 S.E.2d 356. Indeed, we have before explained that "[t]he true test of the sufficiency of an indictment" to withstand a general demurrer is " [i]f all the facts which the indictment charges can be admitted, and still the accused be innocent, the indictment is bad; but if, taking the facts alleged as premises, the guilt of the accused follows as a legal conclusion, the indictment is good.’ " Allen v. State , 300 Ga. 500, 502, 796 S.E.2d 708 (2017) (citation omitted).

Here, Count 2 of the indictment charged Mondor with hit and run under OCGA § 40-6-270. The relevant subsections of that statute provide:

(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, appears 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

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    • Georgia Supreme Court
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    ...the facts necessary to establish" a violation of the code section is insufficient to withstand a general demurrer. State v. Mondor , 306 Ga. 338, 341, 830 S.E.2d 206 (2019) (citation and punctuation omitted).On the other hand, if an indictment does "recite the language of the statute that s......
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2 books & journal articles
  • Evidence
    • United States
    • Mercer University School of Law Mercer Law Reviews No. 72-1, September 2020
    • Invalid date
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    • Georgia State University College of Law Georgia State Law Reviews No. 36-1, September 2019
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