State v. Tiraboschi, S98A0706.
| Decision Date | 21 September 1998 |
| Docket Number | No. S98A0706.,S98A0706. |
| Citation | 504 S.E.2d 689,269 Ga. 812 |
| Parties | The STATE v. TIRABOSCHI. |
| Court | Georgia Supreme Court |
OPINION TEXT STARTS HERE
Charles H. Weston, Dist. Atty., Laura Diane Hogue, Hogue & Hogue, Wayne G. Tillis, Asst. Dist. Attys., Macon, for the State.
Leighton Reid Berry, Jr., Macon, for Thomas J. Tiraboschi.
The State appeals the trial court's sustaining Thomas J. Tiraboschi's special demurrer to a charge of felony murder.1 For the reasons which follow, we reverse.
According to the indictment, while in possession of a sawed-off shotgun, Tiraboschi was driving a 1994 Ford Explorer that he knew was stolen. The police pursued Tiraboschi in a high-speed chase in which Tiraboschi exceeded the speed limit by more than 30 miles an hour. The chase ended when he collided head-on with a vehicle driven by Lonnie Raymond Lang, who died as a result of injuries sustained in the collision.
Tiraboschi was indicted on six counts: 1) felony murder during the commission of the felony of fleeing and attempting to elude a police officer; 2) felony murder during the commission of theft by receiving and retaining a stolen motor vehicle, and possession of a sawed-off shotgun; 3) first degree homicide by vehicle; 4) felony fleeing and attempting to elude a police officer; 5) theft by receiving stolen property; and 6) possession of a sawed-off shotgun.
Tiraboschi filed a special demurrer to both counts of felony murder, and to the charge of felony fleeing and attempting to elude a police officer. The court sustained the demurrer as to the felony murder count based on the felony of fleeing and attempting to elude a police officer, and overruled the demurrer as to the separate charge of felony fleeing and attempting to elude a police officer.2
A person commits felony murder when, while committing a felony, he or she causes the death of another person, irrespective of malice. OCGA § 16-5-1(c). The underlying felony must also be one that is dangerous per se; that is, its attendant circumstances must create a foreseeable risk of death. See Ford v. State, 262 Ga. 602, 603(1), 423 S.E.2d 255 (1992).
Under OCGA § 40-6-395(a), it is a misdemeanor for any driver to flee, elude, or fail to stop when a police officer signals to stop. However, a person commits a felony when he or she violates OCGA § 40-6-395( a) in an attempt to escape arrest for a felony, and either: 1) drives in excess of 30 miles an hour over the speed limit; 2) collides with another vehicle or pedestrian; 3) flees in traffic conditions such that the general public is placed at risk of serious injuries; or 4) leaves the state. OCGA § 40-6-395(b)(5)(A). Tiraboschi was specifically charged with driving in excess of 30 miles an hour over the speed limit, colliding with Lang's vehicle, and fleeing in traffic conditions such that the general public was placed at risk of serious injuries. In being charged with felony fleeing, Tiraboschi is not only charged with a felony, but is charged with a felony that is dangerous per se; by driving in the manner specifically alleged in the indictment, Tiraboschi created a foreseeable risk of death. The felony fleeing charge can therefore serve as a predicate to felony murder.
Tiraboschi contends the only homicide that he can be indicted for is vehicular homicide, OCGA § 40-6-393(a). He argues that, because OCGA § 40-6-393(a) refers to OCGA § 40-6-395(a) as a predicate act, and because OCGA § 40-6-395(b)(5)(A) defines the crime of felony fleeing as occurring only when OCGA § 40-6-395(a) is violated in a certain manner, vehicular homicide always is present when felony fleeing results in a death. This is so because OCGA § 40-6-395(a) always is violated in such a situation, and Tiraboschi contends other prosecution is inappropriate. This argument is unavailing.
It is certainly true that OCGA § 40-6-395(a) is always violated whenever OCGA § 40-6-395(b)(5)(A) is violated, but the fact remains that the acts alleged in the indictment fit the requirements of both felony murder and vehicular homicide. That a charge of vehicular homicide may also lie does not mean that the State is precluded from indicting Tiraboschi under both OCGA § 16-5-1(c) and OCGA § 40-6-393(a). "When the same conduct of an accused may establish the commission of more than one crime, the accused may be prosecuted for each crime." OCGA § 16-1-7(a). Although Tiraboschi may not properly be sentenced for felony murder and vehicular homicide, that does not prevent his trial on both charges.3 See OCGA § 16-1-7(a); Sanborn v. State, 251 Ga. 169, 170(4), 304 S.E.2d 377 (1983). The fact that the State also charged Tiraboschi with vehicular homicide is not an appropriate basis on which to sustain a demurrer.
Contrary to Tiraboschi's claim, State v. Foster, 141 Ga.App. 258, 233 S.E.2d 215 (1977), does not serve as authority for the proposition that when a death occurs as a result of fleeing a police officer, the only homicide that can be charged is vehicular homicide under OCGA § 40-6-393(a). First, that opinion did not deal with the crime of fleeing an officer, but with reckless driving. Second, the issue in that case was whether "`reckless disregard for the safety of persons' as that phrase is used in the reckless driving statute" could supply implied "malice aforethought" necessary for a charge of malice murder. See Foster v. State, 239 Ga. 302, 236 S.E.2d 644 (1977). Neither the opinion of the Court of Appeals, nor this Court's opinion on certiorari, holds that, contrary to the express...
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