Smith v. State, A17A1252, September 7, 2017. Quincy Alexander Smith was convicted of first-degree vehicular homicide for causing the death of another with a blood alcohol concentration over 0.08 grams within three hours of driving.  After dropping his wife and children off at a friend’s house, he was turning left into his subdivision when he turned in front of an oncoming motorcycle. He appealed his conviction alleging that the Trial Court committed reversible error by failing to charge the jury on second-degree homicide, a misdemeanor, based on his failure to yield as a lesser included offense of the DUI vehicular homicide. The Court of Appeals agreed, reversed, and remanded for a new trial.

Because the difference between first and second-degree vehicular homicide is the nature of the predicate traffic offense, second-degree vehicular homicide is a lesser included offense of first-degree vehicular homicide. Brown v. State, 207 Ga. App. 755, 757, 652 S.E.2d 631 (2007).  The State has the burden to establish the casual connection between the defendant’s traffic violation and the victim’s Death.  Miller v. State, 236 Ga. App. 825, 828, 513 SE2d 27 (1999).  The State must prove both the legal cause or proximate cause and the cause in fact of the victim’s death.  Further, if there is any evidence that Defendant is guilty of the lesser included offense, then a written charge on the lesser included offense must be given.  Shah v. State, 300 Ga 14, 19, 793 SE2d 81 (2016).  In the context of a vehicular homicide premised upon a DUI, the lesser including offense jury charge must be given if there is any evidence that underlying traffic offense caused the fatal collision. Brown, 287 Ga. App. at 757-758. The jury could believe that the Defendant was DUI but that the underlying traffic offense actually caused the death.

Finally, the Trial also erred by failing to consider the admissibility of the other act evidence under 24-4-404(b) after performing the balancing test of 24-4-403.  See, Jones v. State, ___ Ga.___ (Case No. S16G0890, June 26, 2017).

-Author: George C Creal Jr.

-Image: Public Domain

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