JACKSON v. THE STATE.
S02A1837
Supreme Court of Georgia
FEBRUARY 24, 2003
MARCH 28, 2003
276 Ga. 408 | 577 SE2d 570
HUNSTEIN, Justice.
4. Finally, Reece appeals the trial court‘s award of attorney fees to Smith under
The trial court found that while Reece asserted in his earliest pleading that Chappell was an indispensable party, he made no effort to either join Chappell in this action, or to separately seek specific performance of an oral agreement between himself and Chappell. The court also found that throughout the litigation, Reece attempted to defeat the partitioning by contending that Smith had acquired his interest in the property illegally, and that his contentions so lacked any justiciable issue of law or fact that it could not be reasonably believed that a court would accept them. See
An award under
Judgments affirmed. All the Justices concur.
DECIDED FEBRUARY 24, 2003 —
RECONSIDERATION DENIED MARCH 28, 2003.
Adam & Talley, James M. Adam, for appellant.
McClure, Ramsay, Dickerson & Escoe, Allan R. Ramsay, for appellee.
HUNSTEIN, Justice.
Jerome A. Jackson was indicted on charges of malice murder, felony murder based on aggravated assault, aggravated assault and two counts of involuntary manslaughter (based on reckless conduct
1. The jury was authorized to find that Jackson and the victim were involved in a romantic relationship. Jackson and his friend Larry Lovett were invited to the victim‘s apartment the evening of June 14, 1999. The victim‘s two cousins were visiting her at that time; both cousins saw Jackson in possession of a handgun he was keeping in his book bag. The victim and Jackson were talking in the kitchen when the cousins stepped out for a few minutes. Upon their return five or ten minutes later, the cousins saw Jackson and Lovett “rushing” from the apartment and found the victim collapsed in the kitchen. Expert testimony established that she had been shot once in the head from a distance of less than two feet. Lovett told the police that he saw Jackson put a .380 caliber handgun to the victim‘s head and heard him threaten to kill her. The weapon then fired and the two men fled the apartment. Jackson threw the murder weapon into the trash where Lovett retrieved it; it was in his possession when he was arrested by police at a nearby MARTA station shortly after the homicide.
Jackson was arrested several weeks later in Florida. In his statement to the police, Jackson admitted he fired the gun but claimed the shooting was an accident. At trial Lovett repudiated his statement to the police; he testified that Jackson made no threats and that the shooting was an accident.
We find the evidence adduced was sufficient to enable a rational trier of fact to find Jackson guilty beyond a reasonable doubt of the crimes for which he was convicted. Jackson v. Virginia, 443 U. S. 307 (99 SC 2781, 61 LE2d 560) (1979).
2. Jackson challenges his convictions for felony murder and involuntary manslaughter predicated upon reckless conduct, contending that they were mutually exclusive because the verdict reflects the jury may have found that Jackson acted with both criminal intent and criminal negligence in regard to his actions involving
Verdicts are mutually exclusive “where a guilty verdict on one count logically excludes a finding of guilt on the other. [Cits.]” United States v. Powell, 469 U. S. 57, 69 fn. 8 (105 SC 471, 83 LE2d 461) (1984). Accord Dumas v. State, 266 Ga. 797, 800 (471 SE2d 508) (1996) (verdicts are mutually exclusive where it is “both legally and logically impossible to convict [the accused] of both counts“).3 Looking at the essential elements for both felony murder and involuntary manslaughter,
That does not end the inquiry, however, because both felony murder and involuntary manslaughter are predicated upon the commission or omission of another offense or act.
Case law is clear that convictions for both felony murder and involuntary manslaughter do not exclude each other in those situations where the offenses underlying the convictions can be reconciled by looking to either the legal requirements for each underlying offense or to the unique facts adduced at trial. See, e.g., Carter v. State, 269 Ga. 420 (5) (499 SE2d 63) (1998) (where two-year-old victim sustained numerous potentially fatal injuries, felony murder/cruelty to children conviction not mutually exclusive of involuntary manslaughter/simple battery conviction); Smith v. State, supra, 267 Ga. at 376 (6) (convictions for felony murder/aggravated assault and involuntary manslaughter/reckless conduct not mutually exclusive where evidence showed defendant intentionally assaulted one victim, while acting recklessly toward another victim); Robinson v. State, 254 Ga. App. 842 (1) (563 SE2d 919) (2002) (convictions for aggravated assault and reckless conduct not mutually exclusive because charges involved two different victims); Davis v. State, 245 Ga. App. 402 (1) (538 SE2d 67) (2000) (verdicts for both first and second degree vehicular homicide not mutually exclusive where evidence of different traffic offenses underlay each conviction).
In the instant case, Jackson contends his felony murder and involuntary manslaughter guilty verdicts are mutually exclusive because they represent a positive but illogical finding by the jury that he acted with both criminal intent and criminal negligence in shooting the victim.
Felony murder requires the accused to possess the criminal intent to commit the underlying felony. See Chapman v. State, 275 Ga. 314 (3) (565 SE2d 442) (2002). Jackson was convicted of felony murder based on an assault, here aggravated into felony status by the use of a deadly weapon.
“[A]n aggravated assault with a deadly weapon based on
Reckless conduct, on the other hand, is “an act of criminal negligence, rather than an intentional act, that causes bodily harm or endangers the bodily safety of another.” Lindsey v. State, 262 Ga. 665, 666 (2) (b) (424 SE2d 616) (1993). It involves “consciously disregarding a substantial and unjustifiable risk that [a person‘s] act or omission will cause harm or endanger the safety of the other person.”
Given the different elements of these two offenses, we have held that a verdict of guilty as to aggravated assault based on
Looking to the facts in this case, we conclude that the jury‘s verdict finding Jackson guilty of felony murder predicated upon an
“[W]here there are mutually exclusive convictions, it is insufficient for an appellate court merely to set aside the lesser verdict, because to do so is to speculate about what the jury might have done if properly instructed, and to usurp the functions of both the jury and trial court.” (Footnote omitted.) Id. Thus, where, as here, it was both legally and logically impossible to convict Jackson of both felony murder and involuntary manslaughter, we must reverse both mutually exclusive convictions and order a new trial. Thomas v. State, 261 Ga. 854 (413 SE2d 196) (1992); Camsler v. State, 211 Ga. App. 826 (440 SE2d 681) (1994); see also Milanovich v. United States, 365 U. S. 551 (81 SC 728, 5 LE2d 773) (1961). Accord State v. Freeman, 272 Ga. 813 (2) (537 SE2d 92) (2000).
3. Because the issue may arise upon retrial, we address Jackson‘s final enumeration in which he contends that the trial court erred by admitting testimony by the victim‘s sister regarding a similar transaction. Cintrella Thomas testified that about a month prior to the victim‘s death, Jackson made sexual overtures toward her and when she argued with him, he retrieved a gun from his book bag, pointed it at her and threatened to shoot her. Focusing upon the similarities between the assault and the victim‘s death, see Farley v. State, 265 Ga. 622 (2) (458 SE2d 643) (1995), we find sufficient connection or similarity between the offense and the crime charged, so that “proof of the former tends to prove the latter.” Williams v. State, 261 Ga. 640, 642 (2) (b) (409 SE2d 649) (1991). Accordingly, the trial court did not err by admitting this testimony.
Judgment reversed. All the Justices concur, except Carley, J., who dissents.
CARLEY, Justice, dissenting.
A jury found Jackson guilty of felony murder during commission of aggravated assault, as well as involuntary manslaughter based upon reckless conduct. There was only one homicide victim, and the trial court merged the involuntary manslaughter into the felony murder and imposed a life sentence only for that greater offense. Involuntary manslaughter can be a lesser included offense of felony
According to the majority, the trial court, rather than instructing the jury not to return a repugnant verdict, “expressly charged that it could render a verdict of guilty on every count in the indictment.” Majority opinion, p. 410. Thus, the apparent trial court ruling upon which the majority relies to support its reversal of the felony murder conviction is the instruction regarding the form of the verdict. However, Jackson does not enumerate that charge as error. Indeed, the trial court gave it at his request and over the protest of the prosecution. Compare State v. Freeman, 272 Ga. 813, 815 (2) (537 SE2d 92) (2000) (State did not object to erroneous charge). Therefore, any error as to the form in which the jury returned its verdicts clearly was induced by Jackson himself. See Torres v. State, 272 Ga. 389, 392 (7) (529 SE2d 883) (2000). He insisted that the jurors return a verdict as to all counts without regard to any purported inconsistency in their findings and urged that any conflict should be addressed at sentencing. That is precisely what occurred. The trial court gave the charge that the defense requested and, merging the involuntary manslaughter verdict, sentenced Jackson only for the greater offense of felony murder.
The majority nevertheless concludes that “[i]nduced error cannot serve to render a void judgment valid.” Majority opinion, p. 410, fn. 2. However, there is no showing that, under the circumstances of this case, Jackson‘s conviction for felony murder is void. The only deficiency identified by the majority is in the underlying verdicts, not in the judgment itself. Compare Bush v. State, 273 Ga. 861 (548 SE2d 302) (2001) (judgment entered by court without subject matter jurisdiction a mere nullity). Because the crimes were included offenses, the verdicts were not repugnant on their face. Compare State v. Freeman, supra (guilty both as party and as accessory after the fact);
The majority holds that, in those limited instances involving included crimes having a greater and lesser mens rea, “a jury may not properly render verdicts of guilt as to both offenses in those factual situations involving the same act by the accused as to the same victim at the same instance of time. [Cits.]” Majority opinion, p. 412, fn. 4. However, that is exactly the request Jackson made of the trial court in this case. “A party cannot request a ruling from the trial court and then, on appeal, take the contrary position and complain that the ruling was error. [Cits.]” Heidler v. State, 273 Ga. 54, 61 (9) (537 SE2d 44) (2000). Thus, by reversing the trial court for complying with the procedure Jackson himself sought, today‘s holding violates the principle that “““[o]ne cannot complain of a judgment, order, or ruling that his own procedure or conduct procured or aided in causing.’ (Cits.)” (Cit.)’ [Cit.]” Payne v. State, 273 Ga. 317, 319 (5) (540 SE2d 191) (2001).
Even if the majority were correct in determining that the felony murder conviction is “void,” its conclusion that Jackson can be retried for that crime would still be erroneous. A new trial is appropriate when the trial court commits reversible error. See
With regard to the merits of Jackson‘s contention, the majority mistakenly asserts that the jury convicted him of “killing both with and without an intention to do so.” Majority opinion, p. 412. The jury acquitted him of malice murder, and thus clearly did not find that the homicide was intentional. Compare Dumas v. State, supra at 800 (2) (guilty of both malice murder and vehicular homicide). It returned guilty verdicts as to felony murder and involuntary manslaughter, and neither of those crimes required proof of his intent to kill. Holliman v. State, 257 Ga. 209 (356 SE2d 886) (1987); Hardrick v. State, 96 Ga. App. 670 (1) (101 SE2d 99) (1957). The felony murder verdict was based upon commission of aggravated assault, whereas the predicate for the involuntary manslaughter verdict was conduct that constituted a gross deviation from the standard of care a reasonable person would have exercised. As previously noted, Jackson does not contend that his reckless handling of the gun was not included in the aggravated assault he committed. Therefore, the multiple guilty verdicts are not mutually exclusive, but merely “dispose of the State‘s alternative allegations regarding the manner in which [he] unintentionally caused the death of the [victim].” (Emphasis supplied.) Carter v. State, supra at 423 (5). The jury found that Jackson unintentionally killed the victim during commission of aggravated assault, and it also found that he killed her unintentionally while engaged in reckless conduct. Compare Dumas v. State, supra.
Aggravated assault is an intentional act, whereas reckless conduct is an act of criminal negligence. Dunagan v. State, 269 Ga. 590, 591 (2) (502 SE2d 726) (1998). According to the majority, “the requisite mental states for these two offenses cannot logically and legally co-exist.” Majority opinion, p. 412. I cannot agree with that assertion.
[T]here is nothing legally incompatible or legally inconsistent between the mens rea of a reckless disregard for life-threatening consequences and the mens rea of a specific intent to inflict harm. The latter is more blameworthy than the former, but it is not legally inconsistent with the former. To be sure, a specific intent to effect a desired consequence, on the one hand, and a conscious disregard of or callous indifference to the consequence, on the other hand, are mental states that are distinct and apparently contradictory in both a linguistic and psychological sense. They are not, however, incompatible or inconsistent in a legal sense.
Williams v. State, 641 A2d 990, 994 (Md. App. 1994). The majority fails to recognize that, when considered in the applicable legal sense,
the terms “recklessness” and “intent” are not mutually exclusive. . . . [C]onscious disregard of the substantial, unjustifiable risk that fear of immediate bodily harm will be created, does not preclude an intent to create fear or an intent to inflict bodily harm, nor does it preclude intent to point a gun. The term “reckless” refers to the risk created, not the mental intent which resulted in an act which produced fear or injury. [Cit.]
State v. Cole, 542 NW2d 43, 51-52 (IV) (Minn. 1996). See also Commonwealth v. Dobbs, 682 A2d 388, 390-391 (Pa. Super. 1996); People v. Noble, 635 P2d 203, 211 (VI) (Colo. 1981) (the culpability element of recklessness can exist simultaneously with the culpability element of knowledge). To prove that Jackson acted recklessly, the State was not required to negate his intent to commit aggravated assault. He certainly could have intended to inflict injury or cause the victim to be reasonably apprehensive of receiving an immediate violent injury at the same time that he consciously disregarded a substantial risk that harm would result from the manner in which he handled the gun. See State v. Cole, supra at 52 (IV). As is true in all other instances of included offenses, the greater proof consisting of his specific intent to commit aggravated assault “does not negate or contradict the lesser proof but only subsumes it.” Williams v. State, supra at 994.
Buehl v. Vaughn, 166 F3d 163, 180 (II) (H) (3d Cir. 1999). Compare Kolokouris v. State, 271 Ga. 597, 598 (2) (523 SE2d 311) (1999) (no multiple guilty verdicts); Dunagan v. State, supra (no mutually exclusive verdicts); Dumas v. State, supra (no contention that vehicular homicide an included offense in malice murder charge); Idowu v. State, 233 Ga. App. 418 (2) (504 SE2d 474) (1998) (not involving multiple guilty verdicts); Sheats v. State, 210 Ga. App. 622 (1) (436 SE2d 796) (1993) (no multiple guilty verdicts). Thus, there was no error in this case.
In conclusion, I am constrained to return to the staggering blow which today‘s opinion delivers to the established concept of induced error. The impact of that holding in the conduct of criminal trials should not be underestimated or discounted by the bench and bar. The only trial error which is ever identified by the majority is that, “[a]fter discussing the matter with counsel, the trial court instructed the jury that it could return a guilty verdict on every count if it found the State had proven its case beyond a reasonable doubt as to each count. [Cit.]” Majority opinion, p. 410, fn. 2. Review of the record reveals that what is characterized as a mere discussion is, in fact, a long colloquy wherein Jackson emphatically insisted that the jury be allowed to return a verdict as to all counts and the prosecution vigorously objected. The following is only a portion of defense counsel‘s argument to the trial court on this issue:
They have to arrive at a verdict on each count. . . . [T]hey can find him guilty of all of those counts. . . . They have to reach a verdict, on those counts. . . . Judge, I‘m telling you, they can convict him on all four [counts] . . . but . . . sentencing is another matter. . . . They can . . . [convict him] of all of them. . . . But when it comes down to sentencing, that‘s a different matter. . . . They can convict on all [counts]. The sentencing is a different thing. . . . But the answer . . . is yes, you can convict him on all [counts]. . . . The question is: Can he be convicted of those counts? . . . And the answer is: Yes. . . . They have to return a verdict on all counts . . . can he be convicted on Counts 2 and 3, can he also be convicted of Counts 4 and 5? The simple answer is yes.
DECIDED FEBRUARY 24, 2003 —
RECONSIDERATION DENIED MARCH 28, 2003.
Christopher E. Latham, Robert J. Storms, for appellant.
J. Tom Morgan, District Attorney, Barbara B. Conroy, Robert M. Coker, Assistant District Attorneys, Thurbert E. Baker, Attorney General, Madonna M. Heinemeyer, Assistant Attorney General, for appellee.