Lead Opinion
Aрpellant Dennis Allaben was found guilty of malice murder, felony murder, aggravated assault with intent to murder, battery, simple battery, and reckless conduct in connection with the strangulation death of his wife, Maureen Allaben.
1. Viewed in the light most favorable to the verdicts, the evidence shows that on January 3, 2010, Allaben strangled the victim to death. He rolled her body up in blankets that he secured with duct tape and placed her in the back of his pickup truck. He drove his two children, who were seven аnd eight years old, to his brother’s house in Virginia, telling them on the way that he had killed their mother. In Virginia, he also told his sister-in-law that he had killed his wife. He said that she was engaging in some unusual practices, including the poisoning of his food, and that he took a cloth soaked with ether and held it to her face so that she would go to sleep. He then planned to tie her up, so that he could talk to her about what she was doing. However, he told his sister-in-law that the cloth went too far down the victim’s throat, and she choked to dеath.
Leaving the children at their relatives’ house in Virginia, Allaben returned with his wife’s body to Atlanta and drove to a friend’s house. He told the friend that his wife was in his truck, that she was dead, and that he needed an attorney. Allaben also told the friend the
The medical examiner testified that the victim was placed in a police choke hold and strangled to death and that there was no evidence of a rag on or in her body. According to the medical examiner, someone placed in a police choke hold would probably lose consciousness in one to two minutes and would suffer irreversible brain damage and die after four to six minutes. Finally, he testified that the victim’s death was a homicide, “[t]he intentional taking of a life by another person.”
This evidence was suffiсient to authorize a rational jury to find beyond a reasonable doubt that Allaben was guilty of the crimes of which he was convicted. See Jackson v. Virginia,
2. Allaben contends that the verdicts on malice murder, felony murder, aggravated assault, battery, and simple battery were mutually exclusive of the verdict on reckless conduct, because the former required the jury to find criminal intent and the latter required only a finding of criminal negligence. We agree.
“Verdicts are mutually exclusive ‘where a guilty verdict on one count lоgically excludes a finding of guilt on the other.’ ” Jackson v. State,
Here, all the verdicts involve the “ ‘same act by the accused as to the same victim at the same instance of time.’ ” Walker,
(a) Malice murder requires a jury to find that the defendant acted with criminal intent. See Walker,
(1) Relying on Parker v. State,
general rule that extremely negligent conduct, which creates what a reasonable man would reаlize to be not only an unjustifiable but also a very high degree of risk of death or serious bodily injury to another or to others — though unaccompanied by any intent to kill or do serious bodily injury — and which actually causes the death of another, may constitute murder. If a reckless disregard for human life constitutes implied malice and implied malice is, in turn, the equivalent of a specific intent to kill, then it necessarily follows that reckless disregard for human life may be the equivalent of a specific intent to kill. Evidence thаt the defendant acted in reckless disregard for human life is, for purposes of demonstrating his guilt of the crime of malice murder, as equally probative as evidence that he acted with a specific intent to kill.
Id. (citations and punctuation omitted). The State contends that, because reckless disregard for life is the equivalent of a specific intent to kill, the malice murder verdict is not logically excluded by the reckless conduct verdict, a crime which is committed when
[a] person ... causes bodily harm to or endangers the bodily safety of another person by consciously disregarding a substantial and unjustifiable risk that his act or omission will cause harm or endanger the safety of the other person and the disregard constitutes a gross deviation from the standard of care which a reasonable person would exercise in the situation. . . .
OCGA § 16-5-60 (b).
Moreover, even if the trial court had charged the jury that a reckless disregard for human life may be the equivalent of a specific intent to kill, the State’s argument would still be unavailing. The jury was charged that it could base a malice murder verdict on express malice, which requires a specific intent to kill, or implied malice, and the verdict form did not offer the jury an opportunity to specify whether the malice murder verdict was based on express or implied malice. Thus, even if the trial court had charged on reckless disregard for human life, we could not “conclusively state” that the malice murder verdict “rested exclusively” on that ground “so as to eliminate the reasonable probability that the jury might have returned a mutually exclusive verdict by finding [that Allaben] acted with both criminal intent and criminal negligence at thе same time as to the same victim.” Jackson,
(2) The State argues that, because the aggravated assault verdict merged into the malice murder conviction and the reckless conduct offense was charged as a lesser included offense to aggravated assault, any error regarding the reckless conduct verdict is moot. See Roberts v. State,
(3) The State argues that the jury’s verdict of not guilty on the lesser included crime of involuntary manslaughter on the malice murder count shows that the jury found that Allaben did not act with recklessness when he killed the victim, as the trial court charged the jury that it could find Allaben guilty of involuntary manslaughter if it found that he caused the victim’s death “without any intention to do so by the commission of the offense of simple battery or battery or reckless conduct.” However, the State’s reliance on the not guilty verdict for involuntary manslaughter is misplaced, as “this Court will not ‘speculate why a jury acquitted on ... (one) offense and convicted on . . . (another) offense. The reason could be an error by the jury in its consideration or it could be mistake, compromise, or lenity.’ ” Dryden v. State,
(4) The State also contends that, because reckless conduct was charged as an included offense only on the aggravated assault count of the indictment, a verdict on reckless conduct should only affect that count and not the malice murder count. This Court, however, has never held that a verdict on an offense included in one count may only be considered mutually exclusive to another offense сharged as part of that count. Rather, verdicts are mutually exclusive where a guilty verdict is entered on one offense, no matter in which count, that logically excludes a verdict of guilt on another offense, such as where, as in this case, a jury returns “ ‘verdicts of guilt as to both (criminal intent and criminal negligence) offenses in those factual situations involving the same act by the accused as to the same victim at the same instance of time.’ ” Walker,
(5) For these reasons, there is at least a reasonablе probability that the jury returned mutually exclusive verdicts for malice murder and reckless conduct. Accordingly, we must reverse Allaben’s malice murder conviction, set aside the guilty verdict for that offense and reckless conduct, and remand for a new trial on those counts. See Walker,
(b) As mentioned previously, Allaben also contends that the guilty verdicts for felony murder, aggravated assault, battery, and simple battery were mutually exclusive of the guilty verdict for reckless conduct. Although the guilty verdict for felony murder was vaсated by operation of law because he was convicted of malice murder for killing the victim, see Malcolm v. State,
(1) An aggravated assault charge may be predicated on OCGA § 16-5-20 (a) (1) (assault by attempting “to commit a violent injury to the person of another”), which requires specific criminal intent and would be mutually exclusive of a verdict for a crime of criminal negligence. Alternatively, such a charge maybe predicated on OCGA § 16-5-20 (a) (2) (assault by placing the victim “in reasonable apprehension of immediately receiving a violent injury”), which does not require a specific intent toward the victim and would not be mutually exclusive of a verdict based on negligence. See Walker,
Here, the indictment charged Allaben with felony murder based on aggravated assault and with aggravated assault with intent to murder. The trial court instructed the jury that the felony murder charge was predicated on aggravated assault with intent to murder and separately charged on aggravated assault with intent to murder. The court also charged the jury that it could find Allaben guilty of felony murder based on aggravated assault and of aggravated assault
(2) As for the guilty verdicts for simple battery and battery, thе trial court charged the jury that to find Allaben guilty of simple battery, it had to find that he intentionally caused physical harm to the victim, see OCGA § 16-5-23 (a) (2), and to find him guilty of battery, it had to find that he intentionally caused substantial physical harm or visible bodily harm to the victim. See OCGA § 16-5-23.1 (a). Thus, the guilty verdicts for those crimes and reckless conduct were mutually exclusive, and we must set aside the guilty verdicts for the two battery offenses. See Walker,
3. We do not address Allaben’s remaining enumerations of error, because they relate to issues that are not likely to recur in the event of a retrial.
Judgment reversed and case remanded.
Notes
The crimes occurred on January 3, 2010, and Allaben was indicted in DeKalb County on March 31,2010, for malice murder, felony murder based on aggravated assault, and aggravated assault with intent to murder, all based on Allaben strangling the victim. In addition to these charges, the trial court charged the jury on involuntary manslaughter as a lesser included offense on the malice murder and felony murder counts. It also charged the jury on battery, simple battery, and reckless conduct as lesser included offenses on the aggravated assault count. On August 11, 2011, the jury foundAllaben not guilty of involuntary manslaughter but guilty of the remaining offenses. That same day, the trial court sentenced him to life imprisonment on the malice murder count, and the remaining verdicts were merged or vacated by operation of law. Allaben filed a motion for new trial on September 12, 2011, and an amended motion for new trial on November 2, 2012, which was denied on December 17, 2012. Allaben filed a notice of appeal on January 15, 2013. The case was docketed in this Court for the April 2013 term and orally argued on June 4, 2013.
We acknowledge that it is possible that someone might begin to strangle another person with only criminal negligence and then continue to strangle her to death with criminal intent. However, the State did not pursue that theory at trial. In fact, the prosecutor argued in closing that Allaben was acting with the intent to kill at the time he began strangling the victim and that the case involved an “[i]ntentional killing. ... Not reckless conduct.” Moreover, based on the indiсtment, the evidence, the verdict form, and the jury instructions, we cannot know if the jury relied on such an “evolving intent” in rendering its verdicts. Thus, “we cannot conclusively state” that the jury relied on that theory “so as to eliminate the reasonable probability that the jury might have returned a mutually exclusive verdict by finding [Allaben] acted with both criminal intent and criminal negligence at the same time as to the same victim.” Walker,
In defining malice murder, OCGA § 16-5-1 (a), (b) says:
(a) A person commits the offense of murder when he unlawfully and with malice aforethought, either express or impliеd, causes the death of another human being.
(b) Express malice is that deliberate intention unlawfully to take the life of another human being which is manifested by external circumstances capable of proof. Malice shall be implied where no considerable provocation appears and where all the circumstances of the killing show an abandoned and malignant heart.
Concurrence Opinion
concurring.
I join the Court’s opinion in full, because it fairly applies our current doctrine on mutually exclusive verdicts as enunciated in Jackson v. State,
Jackson is only a decade old, and its holding creates no substantive rights or other substantial reliance interests. See id. And while the Jackson majority analyzed the issue thoughtfully and reached a tenable conclusion, I find Justice Carley’s dissent on this point, and
But what concerns me most is the workability of the Jackson line of decisions, particularly in relation to other lines of our precedent. Most significantly, Georgia courts have long treated crimes with a mens rea element of criminal negligence or recklessness as “lesser included offenses” of related crimes requiring proof of intent or malice —that is, as crimes that are “established by proof of... a less culpable mental state than is required to establish the commission of the [greater] crime charged.” OCGA § 16-1-6 (1) (emphasis added).
Yet if the jury finds the defendant guilty of both the “greater” crime requiring the “greater” mental state (intent or malice) and its “lesser included” crime requiring a “less culpable” mental state (negligence or recklessness), we no longer treat those crimes as greater and lesser, merging the lesser into the greater for sentencing. Instead, under Jackson, the crimes are now deemed “mutually exclusive,” requiring the verdicts on both crimes to be set aside. See Jackson,
A second incongruity arises in cases like this one, involving guilty verdicts for malice murder and reckless conduct. In applying the malice murder statute, see OCGA § 16-5-1 (a), (b), we have equated recklessness with intent, holding that “a reckless disregard for human life constitutes implied malice and implied malice is, in turn, the equivalent of a specific intent to kill, [so] it necessarily follows that reckless disregard for human life may be the equivalent of a specific intent to kill.” Parker v. State,
Moreover, if Jackson is right, then defendants charged only with crimes requiring proof of criminal negligence or recklessness could defend themselves by asserting that they actually acted with specific intent and utter malice. Thus, for example, a defendant charged with reckless driving resulting in a car crash, see OCGA § 40-6-390, could defend himself by testifying that he actually intended to cause the crash; likewise, a defendant charged with second-degree cruelty to children for negligently shaking her baby, causing the child excessive physical pain, see OCGA § 16-5-70 (c), could defend herself by showing that she actually hurt the child maliciously. This consequence of Jackson’s understanding of the relation between reckless/nеgligent and intentional/malicious mental states seems strange, and it may create an incentive for the State to overcharge defendants whose conduct was only reckless or criminally negligent.
Finally, I note that if Jackson was wrongly decided, then the error cannot be readily corrected by statutory amendment; if indeed the Court erred, it is our responsibility to correct the mistake. Nevertheless, this is not the case in which to answer that question. As in Walker, the State in this case did not argue in its brief on appeal that Jackson should be overruled, сontending instead that the precedent could be distinguished. It cannot, as the Court correctly holds.
I am authorized to state that Justice Blackwell joins in this concurrence.
See, e.g., Kendrick v. State,