STATE v. TIRABOSCHI

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Docket Number

S98A0706.

Attorney(S)

Charles H. Weston, District Attorney, Laura D. Hogue, Wayne G. Tillis, Assistant District Attorneys, for appellant. Leighton R. Berry, Jr., for appellee.

Judges

P. Harris Hines

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Smart Summary

Factual and Procedural Background

The case arises from events occurring on December 4, 1995, when Thomas J. Tiraboschi was driving a stolen 1994 Ford Explorer while in possession of a sawed-off shotgun. During a high-speed police pursuit in which Tiraboschi exceeded the speed limit by more than 30 miles per hour, he collided head-on with a vehicle driven by Lonnie Raymond Lang, who died from injuries sustained in the collision.

Tiraboschi was indicted on six counts, including two counts of felony murder—one predicated on fleeing and attempting to elude a police officer and the other on theft by receiving and retaining a stolen motor vehicle and possession of a sawed-off shotgun—as well as charges of first degree homicide by vehicle, felony fleeing and attempting to elude a police officer, theft by receiving stolen property, and possession of a sawed-off shotgun.

Tiraboschi filed a special demurrer challenging both felony murder counts and the felony fleeing charge. The trial court sustained the demurrer as to the felony murder count based on fleeing and attempting to elude a police officer but overruled the demurrer as to the separate felony fleeing charge. The court’s order did not address the felony murder charge based on theft and possession of a sawed-off shotgun, which was not before the Supreme Court.

The State appealed the trial court’s ruling sustaining the demurrer on the felony murder charge predicated on fleeing and attempting to elude a police officer. The appeal was ultimately docketed in the Supreme Court of Georgia and submitted for decision without oral argument.

Legal Issues Presented

Whether the felony of fleeing and attempting to elude a police officer, as defined under OCGA § 40-6-395 (b)(5)(A), constitutes a predicate felony dangerous per se that can support a charge of felony murder under OCGA § 16-5-1 (c).
Whether the indictment charging both felony murder and vehicular homicide based on the same conduct is permissible under Georgia law.
Whether the trial court erred in sustaining the special demurrer to the felony murder charge predicated on fleeing and attempting to elude a police officer.

Arguments of the Parties

Appellant's Arguments (The State)

The felony of fleeing and attempting to elude a police officer, when committed under the circumstances alleged (exceeding speed limit by more than 30 mph, collision causing death, and placing the public at risk), is a felony dangerous per se and can serve as a predicate felony for felony murder.
The State may charge both felony murder and vehicular homicide arising from the same conduct, as Georgia law permits prosecution for multiple crimes based on the same behavior.
The trial court erred in sustaining the demurrer to the felony murder count because the felony fleeing charge meets the statutory requirements for a predicate felony under felony murder.

Appellee's Arguments (Tiraboschi)

The only homicide charge appropriate for the death resulting from fleeing a police officer is vehicular homicide under OCGA § 40-6-393 (a).
Because OCGA § 40-6-393 (a) references OCGA § 40-6-395 (a) as a predicate, and felony fleeing under subsection (b)(5)(A) always involves violation of subsection (a), felony murder charges are inappropriate when vehicular homicide is charged.
The General Assembly did not intend felony fleeing to serve as a predicate felony for felony murder, as the statute does not explicitly reference felony murder.

Table of Precedents Cited

Precedent	Rule or Principle Cited For	Application by the Court
Ford v. State, 262 Ga. 602 (1992)	Definition of felony murder requiring the underlying felony to be dangerous per se, creating a foreseeable risk of death.	Used to establish that felony fleeing under the alleged circumstances qualifies as a dangerous felony predicate for felony murder.
Sanborn v. State, 251 Ga. 169 (1983)	Permits prosecution for multiple crimes based on the same conduct.	Supported the conclusion that Tiraboschi could be indicted for both felony murder and vehicular homicide.
Carter v. State, 269 Ga. 420 (1998)	Distinguishes felony murder as a greater offense than vehicular homicide when different elements are proven.	Clarified that felony murder requires proof of additional elements beyond vehicular homicide, supporting separate charges.
State v. Foster, 141 Ga. App. 258 (1977)	Addressed whether reckless disregard could supply implied malice for malice murder; did not limit homicide charges to vehicular homicide in fleeing cases.	Rejected Tiraboschi’s reliance on this case to argue exclusivity of vehicular homicide charge.
Chapman v. State, 266 Ga. 356 (1996)	Statutory silence on felony murder predicate status does not preclude a felony from serving as a predicate felony.	Supported that felony fleeing can serve as a predicate felony for felony murder despite no explicit reference.
Avnet, Inc. v. Wyle Labs., Inc., 263 Ga. 615 (1993)	Legislature is presumed to enact statutes with knowledge of existing law.	Supported the inference that the legislature intended felony fleeing to expose accused to felony murder charges.

Court's Reasoning and Analysis

The Court began by defining felony murder under OCGA § 16-5-1 (c) as causing death during the commission of a felony, with the underlying felony required to be dangerous per se, meaning it creates a foreseeable risk of death. The Court examined the felony of fleeing and attempting to elude a police officer under OCGA § 40-6-395, noting that while subsection (a) defines a misdemeanor, subsection (b)(5)(A) elevates the offense to a felony under circumstances including speeding over 30 mph above the limit, causing a collision, or endangering the public.

The Court found that the felony fleeing charge in this case met the dangerous per se standard because the alleged conduct created a foreseeable risk of death. Therefore, it could serve as a predicate felony for felony murder.

The Court rejected Tiraboschi’s argument that vehicular homicide is the exclusive charge when death results from fleeing a police officer. It reasoned that although vehicular homicide and felony murder may arise from the same conduct, Georgia law permits prosecution for multiple offenses based on the same facts. The Court emphasized that felony murder requires additional elements, such as fleeing to escape arrest for a felony and specific dangerous conduct, making it a greater offense than vehicular homicide.

The Court also addressed Tiraboschi’s reliance on State v. Foster, clarifying that the case involved reckless driving and malice murder, not fleeing and attempting to elude a police officer, and did not support his exclusivity argument.

Finally, the Court considered the legislative intent regarding felony fleeing’s status as a predicate felony for felony murder. It noted that other predicate felonies similarly lack explicit felony murder references, and the legislature is presumed to have enacted the statute with knowledge of existing law, including felony murder doctrine. Thus, the Court concluded the legislature intended felony fleeing to expose an accused to felony murder charges when death results.

Holding and Implications

The Court reversed the trial court’s order sustaining the special demurrer to the felony murder charge predicated on fleeing and attempting to elude a police officer.

The direct effect of this decision is that Thomas J. Tiraboschi remains subject to prosecution on the felony murder charge based on the felony of fleeing and attempting to elude a police officer. The Court’s ruling clarifies that felony fleeing under the circumstances alleged constitutes a predicate felony for felony murder and that charging both felony murder and vehicular homicide arising from the same conduct is permissible. No new precedent was set beyond affirming the application of existing statutory interpretation and case law principles.

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THE STATE v. TIRABOSCHI.

HINES, Justice.

The State appeals the trial court's sustaining Thomas J. Tiraboschi's special demurrer to a charge of felony murder. For the reasons which follow, we reverse.

The crimes occurred on December 4, 1995. Tiraboschi was indicted on May 24, 1996. On August 13, 1996, Tiraboschi filed his special demurrer; argument was had on August 28, 1996, and on April 18, 1997, the court sustained the demurrer. The State filed its notice of appeal on May 19, 1997, and the appeal was docketed in the Court of Appeals on June 2, 1997; the Court of Appeals transferred the case to this Court on January 21, 1998. The appeal was docketed in this Court on January 29, 1998, and submitted for decision without oral argument on March 23, 1998.

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.

The court's order is silent as to the challenge to the felony murder charge based on theft by receiving and retaining a stolen motor vehicle and possession of a sawed-off shotgun, and the propriety of such a charge is not before us.

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. 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.

We note that vehicular homicide and felony murder here are not proved on identical facts. In order to gain a conviction for vehicular homicide, the State must prove that while fleeing or attempting to elude a police officer in the manner described in OCGA § 40-6-395 (a), Tiraboschi caused the death of another person. In order to gain a conviction for felony murder, the State must not only prove that Lang's death was caused by Tiraboschi fleeing or attempting to elude a police officer in the manner described in OCGA § 40-6-395 (a), but also that Tiraboschi was attempting to escape arrest for a felony, and was either driving in excess of 30 miles an hour over the speed limit, collided with Lang's vehicle, or fled in traffic conditions such that the general public was placed at risk of serious injuries. Under these circumstances, felony murder is a greater offense. See Carter v. State, 269 Ga. 420, 423-424 (5) ( 499 S.E.2d 63) (1998).

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 language of OCGA § 16-1-7 (a), an accused may be indicted for only one crime when his behavior would also establish the violation of another. The indictment comports with OCGA § 16-1-7 (a).

Tiraboschi also argues that in establishing the crime of felony fleeing in 1995, the General Assembly did not intend it to serve as a predicate felony for felony murder, and had it so intended, OCGA § 40-6-395 (b) (5) (A) would have included a reference to felony murder. However, statutes defining other predicate felonies also do not refer to felony murder, and those felonies are properly predicate felonies. See Chapman v. State, 266 Ga. 356, 358 (4) ( 467 S.E.2d 497) (1996). The legislature is presumed to know the condition of the law and to enact statutes with reference to it, Avnet, Inc. v. Wyle Labs., Inc., 263 Ga. 615, 619-620 (2) ( 437 S.E.2d 302) (1993), and it must be concluded that when the General Assembly created the felony level crime of fleeing or attempting to elude, it knew that a violation of OCGA § 40-6-395 (b) (5) (A) would expose an accused to a charge of felony murder when death resulted.

Judgment reversed. All the Justices concur.