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State v. Mondor

Court of Appeals of Georgia, Fifth Division

June 27, 2018

THE STATE
v.
MONDOR. MONDOR
v.
THE STATE.

          MCFADDEN, P. J., RAY and RICKMAN, JJ.

          Ray, Judge.

         These related appeals concern a fatal, multi-vehicle collision. The State charged Dannie Mondor with hit and run (OCGA § 40-6-270 (b)) and with first degree vehicular homicide predicated upon the hit-and-run offense (OCGA § 40-6-393 (b)). In response to Mondor's special demurrer, the trial court dismissed the indictment. Apparently anticipating that the State will re-indict him, the trial court also rejected constitutional challenges that Mondor made to the hit and run and vehicular homicide statutes and to a statute barring him from introducing evidence of the accident victim's seat belt use (OCGA § 40-8-76.1).

         In Case No. A18A0268, the State appeals from the trial court's ruling on the special demurrer. Because the indictment contains the elements of the hit-and-run statute and sufficiently notifies Mondor of the accusations against him, we reverse the trial court's order granting his special demurrer and dismissing the indictment.

         In Case No. A18A0269, Mondor appeals from the trial court's rulings on the constitutional arguments. Because this cross-appeal may fall within the Supreme Court's exclusive jurisdiction, we transfer it to our Supreme Court.

         1. Agreed-to facts from appellate briefs.

         In their appellate briefs, the State and Mondor agree that the accident occurred on an interstate highway. Mondor was driving a large recreational vehicle and was towing a trailer. The State alleges that the front right bumper of Mondor's recreational vehicle struck the left rear bumper of a second vehicle during a lane change. The second vehicle lost control and struck a third vehicle. The passenger in the third vehicle died after being ejected from the vehicle. After the accident, Mondor stopped on the side of the road at a nearby exit. He then apparently drove to a shopping center parking lot, called the police to report the accident, and waited for their arrival.

         2. A18A0268 - Special demurrer to indictment.

         A special demurrer challenges the sufficiency of the form of the indictment. Jackson v. State, 316 Ga.App. 588, 591 (2) (730 S.E.2d 69) (2012). "In reviewing a ruling on a special demurrer, we apply a de novo standard of review, because it is a question of law whether the allegations in the indictment are legally sufficient." (Citation and punctuation omitted.) McGlynn v. State, 342 Ga.App. 170, 175 (2) (803 S.E.2d 97) (2017). Mondor was entitled to an indictment "perfect in form" because he filed his special demurrer before going to trial. Kimbrough v. State, 300 Ga. 878, 881 (3) (779 S.E.2d 229) (2017).

         When inquiring whether an indictment is sufficient to withstand a special demurrer,

the applicable standard is not whether [the indictment] could have been made more definite and certain, but whether it contains the elements of the offense intended to be charged, and sufficiently apprises the defendant of what he must be prepared to meet, and, in case any other proceedings are taken against him for a similar offense, whether the record shows with accuracy to what extent he may plead a former acquittal or conviction.

(Citation and punctuation omitted.) Hairston v. State, 322 Ga.App. 572, 575 (2) (745 S.E.2d 798) (2013).

         The trial court granted Mondor's special demurrer and dismissed the indictment, finding that the indictment was "not perfect in form and substance" because it "makes no mention of any knowledge by [Mondor] of any death, damage, or injury."[1] The State argues that the trial court erred in concluding that the indictment did not sufficiently allege all of the elements of the hit-and-run offense. We agree with the State.

         As required by OCGA § 40-6-270 (a), "[t]he driver of any vehicle involved in an accident resulting in injury to or death of 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 [render specified assistance]." Further, "[i]f such accident is the proximate cause of death or a serious injury, any person knowingly failing to stop and comply with ...


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