ELLIS v. STATE (2009)

Benjamin Martin Ellis appeals from the trial court's denial of his Motion to Dismiss and Plea in Bar, alleging that the trial court erred in concluding that his prosecution for murder and aggravated assault was not barred by double jeopardy. For the reasons that follow, we affirm in part and reverse in part.

The record reveals that, on July 23, 2001, Ellis was arrested for repeatedly shaking Kayla McCoy, a child, which resulted in serious injuries to McCoy. In connection with the shaking incident, on February 22, 2002, Ellis pled guilty to one count of felony cruelty to children and was sentenced to fifteen years. Subsequent to the entry of the plea, however, McCoy died, allegedly as a result of the injuries she sustained from the shaking incident.

On June 3, 2008, Ellis was charged with malice murder, felony murder, and aggravated assault in connection with the July 23, 2001 shaking incident involving McCoy. On September 8, 2008, Ellis filed a Motion to Dismiss and Plea in Bar, contending, primarily, that pursuant to OCGA §§ 16-1-7(b) and 16-1-8(b), his 2002 guilty plea barred the State from prosecuting him for these additional crimes relating to the shaking incident.¹ With respect to the murder counts in the new indictment, however, Ellis is incorrect. Indeed, “[s]ince the murder was not yet complete because the victim had not died at the time of the [cruelty to children] conviction, the subsequent prosecution for murder [was] not barred by the express terms of [OCGA §§ 16-1-7(b) and 16-1-8(b) dealing with procedural double jeopardy].” Lowe v. State, 240 Ga. 767, 768(1), 242 S.E.2d 582 (1978). The trial court therefore did not err in denying Ellis' Motion to Dismiss and Plea in Bar insofar as it related to the murder and felony murder counts against him.

To the extent that the trial court's order would also allow the State to prosecute Ellis for aggravated assault under the new indictment, however, the trial court did err.² “If ․ several crimes arising from the same conduct are known to the proper prosecuting officer at the time of commencing the prosecution and are within the jurisdiction of a single court, they must be prosecuted in a single prosecution except [where] the court in the interest of justice [has] order[ed] that one or more of such charges be tried separately.” OCGA §§ 16-1-7(b) and (c). The same facts in this case that supported the initial charge of felony cruelty to children also supported a charge of aggravated assault. Unlike the facts that supported the murder charges here, which arose later, all of the facts necessary to support an aggravated assault charge were known by the prosecutor to exist at the time that Ellis was initially indicted for cruelty to children. Thus, absent an order from the trial court that, in the interest of justice, the charges needed to be tried separately, the State was required to prosecute Ellis for aggravated assault in the same prosecution that it had initiated against him for cruelty to children. Id. See also State v. McCrary, 253 Ga. 747, 325 S.E.2d 151 (1985); Billups v. State, 228 Ga.App. 804(1), 493 S.E.2d 8 (1997). Therefore, we reverse the trial court's order to the extent that it would allow the State to proceed with a separate charge of aggravated assault against Ellis based on the shaking incident involving McCoy.

Judgment affirmed in part and reversed in part.

MELTON, Justice.

All the Justices concur.