Crowley v. State
315 Ga. App. 755
Ga. Ct. App.2012Background
- Crowley was convicted by Fulton County jury of armed robbery, aggravated assault with a deadly weapon, possession of a handgun by a person under 18, and possession of a firearm during the commission of a felony against another person.
- Crowley appealed arguing (a) improper dismissal of a juror and denial of a mistrial, (b) error in not instructing robbery as a lesser included offense, and (c) that armed robbery and aggravated assault should merge for sentencing.
- The trial court dismissed Juror No. 35 and seated an alternate before any evidence or opening statements, and denied Crowley’s motion for mistrial.
- The court allowed the trial to proceed with the alternate and held the replacement did not prejudice Crowley, given the timing before evidentiary submissions.
- The court refused to give a robbery lesser‑included offense instruction because the uncontradicted evidence showed use of a firearm to effectuate the armed robbery.
- The convictions for armed robbery and aggravated assault were held to merge for sentencing, requiring vacatur of the sentence on those counts and remand for resentencing.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Juror dismissal was proper without prejudice | Crowley | State | Not reversible error; replacement with an alternate was proper under OCGA 15-12-169/172. |
| Robbery as a lesser included offense of armed robbery | Crowley | State | No error; evidence showed use of a firearm, so robbery was not a lesser included offense. |
| Merger of armed robbery and aggravated assault for sentencing | Crowley | State | Convictions should merge; sentence vacated and remanded for resentencing. |
Key Cases Cited
- Herring v. State, 224 Ga. App. 809 (Ga. App. 1997) (juror replacement discretion requires a sound basis to avoid prejudice)
- Scott v. State, 272 Ga. App. 32 (Ga. App. 2005) (alternate replacement before trial proper when no prejudice shown)
- Clark v. State, 279 Ga. 243 (Ga. 2005) (uncontradicted evidence of greater offense; no lesser included instruction required)
- Rainly v. State, 307 Ga. App. 467 (Ga. App. 2010) (courts may refuse lesser included instruction where evidence supports only greater offense)
- Long v. State, 287 Ga. 886 (Ga. 2010) (no element of aggravated assault not contained in armed robbery; merger when same act or transaction)
- Ingram v. State, 279 Ga. 132 (Ga. 2005) (aggravated assault merged into murder when continuous act; supports single‑transaction merger)
- Taylor v. State, 304 Ga. App. 395 (Ga. App. 2010) (merger where offenses under same criminal act)
- Mack v. State, 283 Ga. App. 172 (Ga. App. 2007) (merged aggravated assault with gun where rapid succession; no intervening act)