Hollins v. the State
340 Ga. App. 190
| Ga. Ct. App. | 2017Background
- Hollins and co-defendant Adam Pfeifer rode in a taxicab; the driver was later found dead from a single gunshot behind the right ear at an apartment complex.
- Pfeifer’s latent print was found in the cab; at arrest he carried a backpack with the murder weapon and papers bearing Hollins’s name; Hollins’s fingerprint was on the rear driver door handle.
- Pfeifer pled and testified that Hollins said he intended to rob and kill the driver and that Hollins fired the fatal shot after Pfeifer exited the cab.
- Hollins was indicted on murder, felony murder, aggravated assault (alleging assault “with a firearm…by shooting him”), and possession of a firearm during a felony; the jury convicted on aggravated assault and firearm possession but acquitted on murder.
- At trial the court read the indictment and instructed the jury on aggravated assault and the full definition of simple assault (both means: attempt to cause violent injury or placing another in reasonable apprehension of immediate violent injury).
- Hollins did not object at trial; after denial of his motion for new trial he appealed, arguing the jury could have convicted on an unindicted theory (reasonable apprehension) rather than the indicted method (shooting).
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether charging the jury on both methods of simple assault (including apprehension) improperly allowed conviction on an unindicted theory of aggravated assault | Hollins: Jury could have convicted based on placing the victim in apprehension rather than the indicted method of shooting, which is error | State: Indictment alleged the aggravating element (use of a gun); simple assault is a lesser-included offense with two statutory methods, so defining both is proper | Court: No error — instructing on the full simple-assault definition was proper because simple assault is a lesser included offense and the indictment sufficiently alleged the aggravating element |
| Applicable standard of review given lack of objection | Hollins: Plain error review applies | State: Agreed plain error governs | Court: Applied plain error test (Kelly) and found no reversible error |
Key Cases Cited
- Simpson v. State, 277 Ga. 356 (trial court may instruct jury on both methods of simple assault when aggravated assault indictment alleges use of a gun)
- Childs v. State, 257 Ga. 243 (holding that it is error to charge on two methods when indictment charges one specific method)
- Bates v. State, 275 Ga. 862 (instruction on aggravated assault necessarily includes law on simple assault; indictment alleging ‘‘by shooting’’ raised possibility of other simple-assault method)
- State v. Kelly, 290 Ga. 29 (plain error standard described for unobjected-to jury instructions)
- Crankshaw v. State, 336 Ga. App. 700 (statement of appellate review standard viewing evidence in light most favorable to the verdict)