Lead Opinion
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,
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,
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. OCGA §§ 16-5-1 (c), 16-5-3. We agree with Jackson that a mutually exclusive verdict may be rendered in a particular case where the offenses or acts alleged in the indictment as underlying the felony murder and involuntary manslaughter counts reflect that the jury, in order to find the defendant guilty on both counts, necessarily reached “two positive findings of fact that cannot logically mutually exist.” Strong v. State,
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,
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,
“[A]n aggravated assault with a deadly weapon based on OCGA § 16-5-20 (a) (1) cannot be committed by criminal negligence.” Dunagan v. State,
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,
Given the different elements of these two offenses, we have held that a verdict of guilty as to aggravated assault based on OCGA § 16-5-20 (a) (1) requires a finding of an intentional infliction of injury, which precludes the element of criminal negligence in reckless conduct. Dunagan, supra; Sheats v. State,
Looking to the facts in this case, we conclude that the jury’s verdict finding Jackson guilty of felony murder predicated upon an OCGA § 16-5-20 (a) (1) aggravated assault on Princess Thomas was mutually exclusive of a verdict finding Jackson guilty of involuntary manslaughter predicated upon reckless conduct in regard to the same act involving the same victim at the same instance of time. Accord Kolokouris v. State,
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,
Judgment reversed.
Notes
The crimes occurred on June 14-15, 1998. A DeKalb County grand jury indicted Jackson on September 14, 1998 and reindicted him on October 21, 1998. He was found guilty on November 5, 1999 and was sentenced November 12, 1999. His motion for new trial, filed November 29, 1999, was denied June 20, 2002. A notice of appeal was filed July 19, 2002. The appeal was docketed August 15, 2002 and was submitted for decision on the briefs.
The transcript reflects that the jury submitted the following question: “The prosecution mentioned in the closing that involuntary manslaughter charges and the aggravated assault/felony murder charges are mutually exclusive. Is this true?” After 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. Compare Dumas v. State,
Mutually exclusive verdicts, which cannot both stand, result in two positive findings of fact which cannot logically mutually exist. Inconsistent verdicts, which do not introduce invalidity, bespeak a positive finding of fact as to one charge and the failure to make a positive finding of fact as to the other. The latter, which results in an acquittal, does not constitute a negative finding of fact but may be explained as compromise, mistake, or lenity. We can neither speculate nor inquire.
Strong v. State,
While an offense committed by criminal negligence may be a lesser included offense of an offense committed with criminal intent, in that criminal negligence constitutes a less culpable mental state, see OCGA §§ 16-1-6, 16-2-1, 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. See, e.g., Dumas v. State, supra,
We recognize that while OCGA § 16-5-20 (a) (1) requires the defendant to act with a criminal intent in regard to the victim, subsection (a) (2) of that statute does not. “There is an intent of the accused that must be shown, but it is only the criminal intent to commit the acts which caused the victim to be reasonably apprehensive of receiving a violent injury, not any underlying intent of the accused in assaulting the victim. [Cit.]” Dunagan, supra,
Dissenting Opinion
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,
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,
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,
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 OCGA § 5-5-20 et seq. Thus, mutually exclusive verdicts will authorize a new trial in those instances in which the trial court improperly charges the jury. Dumas v. State, supra at 800 (2); Thomas v. State,
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,
Aggravated assault is an intentional act, whereas reckless conduct is an act of criminal negligence. Dunagan v. State,
[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,
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,
*418 It is difficult to see how involuntary manslaughter can be included within the offense of murder and yet be logically inconsistent with that offense. For this reason, courts in other jurisdictions have recognized that multiple guilty verdicts for the same conduct that are based on varying levels of mens rea are not mutually exclusive. [Cits.]
Buehl v. Vaughn,
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.
After considering Jackson’s adamant request, the trial court did instruct the jury to return a verdict on all counts and, when guilty verdicts were returned, the court resolved the matter in the context of sentencing. Today, however, a majority of this Court reverses and orders a new trial because the trial court gave the very instruction that Jackson insisted upon. The “void judgment” concept advanced as justification for refusing to adhere to the principle of induced error is a complete and utter fiction. The judgment of conviction for felony murder is valid in every respect, since it was entered on guilty verdicts finding the accused guilty of that offense and the lesser crimes that were included in it. I submit that the so-called “void judgment” rationale effectively abolishes the concept of induced error. The simple truth is that, if the induced error rule is not applicable here, it cannot be invoked in any future case. Thus, the trial courts of this state should be apprised that it is no longer possible to avoid reversal when giving a criminal defendant’s requested charge, since he or she is now free to attack on appeal the very instructions that were sought below.