Carter v. StateCarter v. State
- Reporters:
- , ,
- Before:
- Benham
Lead Opinion
Aрpellant was convicted of felony murder in the stabbing death of Charlie Swinney and sentenced to life imprisоnment after a jury found him guilty of felony murder and voluntary manslaughter. 1 The evidence presented at trial establishеd that the victim died from stab wounds appellant inflicted upon him ten minutes after learning that the 33-year-old victim hаd beaten appellant’s mother, who had been taken by ambulance to a hospital. The evidenсe was sufficient to authorize a jury to find appellant guilty beyond a reasonable doubt of felony murder, with thе underlying felony being the aggravated assault of the victim. Jackson v. Virginia, 443 U. S. 307 (99 SC 2781, 61 LE2d 560) (1979); Stoudemire v. State, 261 Ga. 49 (401 SE2d 482) (1991).
*7411. The trial court did not err in admitting 32 photographs depiсting the location and nature of the 23 stab wounds received by the victim since such photos are relevant and material (Goss v. State, 255 Ga. 678 (1) (341 SE2d 448) (1986)), and therefore are admissible though they may be duplicative and inflame the jury. Burgan v. State, 258 Ga. 512 (3) (371 SE2d 854) (1988).
2. Instructing the jury on thе issue of felony murder was not error since the indictment charged appellant with causing the death of thе victim by stabbing him while in the commission of a felony, aggravated assault, and the evidence established the victim diеd from the stab wounds appellant admittedly inflicted. Catchings v. State, 256 Ga. 241 (6) (347 SE2d 572) (1986).
3. When the jury returned verdicts of guilty for both felony murder and voluntary mаnslaughter, the trial court accepted the jury’s verdict of guilty of felony murder after instructing the foreman to strike through the voluntary manslaughter guilty verdict. There having been no objection to the trial court’s action, we will nоt consider appellant’s assertion that the trial court should have vacated the felony murder conviction and sentenced him for voluntary manslaughter.
4. Appellant contends that his felony murder conviction, predicated upon an aggravated assault which is an integral component of the homicide, violаtes due process of law. Because this constitutional challenge is raised for the first time on appeal, it cannot be considered by this court. Brock v. State, 239 Ga. 326 (236 SE2d 835) (1977).
5. The bailiff improperly communicated with a juror by responding to her inquiry concerning the difference between malice murder and felony murder.
6. Appellant contends the trial court erred when it imposed reimbursement of attorney fees as a condition of appellant’s sentence. Neithеr the transcript of appellant’s October 11 sentencing nor the final disposition form, dated October 11, reflects that such a condition was imposed upon appellant. While the Indigent Defense Coordinatоr submitted a post-sentencing recommendation that appellant be required to reimburse the county $1,272.98 for “the total claim of his attorney,” the recommendation does not constitute appellant’s sentence, and the record contains no order from the trial court incorporating that recommendation. Therefore, we conclude that reimburse*742ment of attorney fees to the county is not a part оf appellant’s sentence, and decline to review the issue further.
Judgment affirmed.
All the Justices concur.Notes
The crime was committed on Marсh 10, 1990. Appellant turned himself in to authorities on that day and was indicted on August 10, 1990. He was convicted on September 10, and sentenced to life imprisonment on October 11. After his motion for new trial was denied February 26, 1991, appеllant filed a notice of appeal on March 26. The appeal was docketed in this court оn April 1, 1991, and oral arguments were heard on June 3, 1991.
Concurrence Opinion
concurring.
I concur in the judgment but have a comment as to Division 3 of the оpinion.
I would have dissented to Division 3 and to the opinion but for the appellant’s failure to object to the striking of the voluntary manslaughter finding of guilty and allowing the felony murder verdict to stand.
When a defendant, as in this casе, has been found guilty of two crimes, one lesser than the other, and the convictions are based upon the same evidence, the greater crime should be struck. In Parks v. State, 254 Ga. 403, 414 (330 SE2d 686) (1985), this Court held:
Intent to kill is an essential element of both murder and vоluntary manslaughter.OCGA §§ 16-5-1 and 16-5-2. Provocation, or the lack thereof is what distinguishes the two offenses.
Our voluntary manslaughter statute,
(a) A person сommits the offense of voluntary manslaughter when he causes the death of another human being under circumstаnces which would otherwise be murder and if he acts solely as the result of a sudden, violent, and irresistible passion resulting from serious provocation sufficient to excite such passion in a reasonable person. . . . (Emphases supplied.)
By virtue of being found guilty оf both murder and voluntary manslaughter, the defendant was necessarily found to have committed an act which would otherwise be murder and to have acted solely as the result of a sudden, violent, and irresistible passion resulting from a provocation serious enough to еlicit such passion from a reasonable person. By the language of our own statutes, the acts of murdеr and voluntary manslaughter contain elements which make them mutually exclusive and not susceptible to prоof by the same evidence. To read these laws otherwise, is to make the existence of the lesser offense of voluntary manslaughter a nullity.