Howard v. State
288 Ga. 741
| Ga. | 2011

Background

  • Howard and Ross were tried together; Ross was convicted of malice murder of Bell, felony murder during possession of a firearm by a felon, and a related underlying offense; Howard was convicted of felony murder during aggravated assault, four counts of aggravated assault, and firearm possession during a felony.
  • The verdicts against Ross for felony murder were vacated by operation of law and Bell’s aggravated assault count against him merged into the murder verdicts; judgments were entered for the remaining convictions and sentences included life, consecutive 20-year terms for four aggravated assaults, and firearm possession terms.
  • Evidence showed a confrontation with White and his group; Howard reportedly returned with firearms and fired toward the parking lot where Bell and others stood; shell casings matched a .380 pistol.
  • Counts related to aggravated assaults on Sanders, Simon, and Smith were upheld; the jury could infer reasonable apprehension of imminent injury from victims’ conduct (running from gunfire) and positions in the line of fire.
  • The defense argued issues including jury instructions on simple assault, potential provocation for voluntary manslaughter, Batson, recharge procedures, and credibility instructions; the court addressed these on appeal.
  • The Georgia Supreme Court affirmed the judgments, with Justice Nahmias writing separately to express a different view on plain error review of unobjected jury-charge errors.

Issues

Issue Plaintiff's Argument Defendant's Argument Held
Sufficiency of aggravated assault convictions Howard argues the evidence shows only that victims heard gunshots and ran. State contends evidence supported the victims’ apprehension of immediate injury. Evidence supports all aggravated assaults; rational jury could find guilt beyond reasonable doubt.
Jury instruction on simple assault Howard asserts failure to define simple assault as an element of aggravated assault was reversible error. State argues no reversible or plain error given post-amendment law and lack of harm. No reversible or plain error; no impact on outcome; waiver due to lack of objection.
Charge allowing conviction of one defendant for murder based on another's felony murder Ross contends recharge improperly allowed joint liability for murder based on co-defendant's conduct. State argues charge viewed in context of full instructions and no error. No reversible error; jury was instructed to consider each defendant separately and recharge did not mislead.
Voluntary manslaughter instruction Ross seeks a voluntary manslaughter instruction based on provocation by the initial threat to Howard. State contends provocation did not reach level required; Ross not present during provocation. Provocation did not rise to the level requiring a voluntary manslaughter instruction; law applied correctly.
Batson issue and contempt remedy Ross challenges pre-trial Batson remedies announced by the court. State argues defense counsel waived these objections by remaining silent and not raising Batson earlier. Issue waived; no reversible error under waiver principles; no contempt-based reversal.

Key Cases Cited

  • Jackson v. Virginia, 443 U.S. 307 (1981) (sufficiency standard: proof beyond a reasonable doubt)
  • Lewis v. State, 215 Ga.App. 161 (1994) (proof of victim’s apprehension may be circumstantial)
  • Heard v. State, 204 Ga.App. 757 (1992) (conduct can establish apprehension of injury)
  • Adkins v. State, 279 Ga. 424 (2005) (apprehension evidence may be inferred from victim conduct)
  • Roberts v. State, 267 Ga. 669 (1997) (apprehension and line-of-fire considerations for aggravated assault)
  • Bates v. State, 275 Ga. 862 (2002) (distinguishes reasonable apprehension from fear)
  • Merrell v. State, 162 Ga.App. 886 (1982) (recklessness vs. intent in assault cases)
  • Emmanuel v. State, 300 Ga.App. 378 (2009) (limits on simple-assault definition in charging aggravated assault)
  • Coney v. State, 290 Ga.App. 364 (2008) (jury instruction on assault definitions)
  • Madrigal v. State, 287 Ga. 121 (2010) (waiver and plain-error considerations in trial objections)
  • Ward v. State, 239 Ga. 205 (1977) (credibility instruction and intelligence factor guidance)
  • Davis v. State, 278 Ga.App. 628 (2006) (recharge procedure and clarity of charges)
  • Collier v. State, 288 Ga. 756 (2011) (plain-error review considerations (special concurrence context))
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