S16A1514. JOHNSON v. THE STATE.
S16A1514
Supreme Court of Georgia
March 6, 2017
300 Ga. 665
BOGGS, Justice.
FINAL COPY
An autopsy revealed the victim suffered numerous sharp-force injuries to her cheek, lips, forehead, collar bone, right shoulder, left shoulder, right hip, mid-back and nеck (which severed her jugular vein). The medical examiner
Johnson waived his rights and agreed to be interviewed by police. He had a scratch on his arm, some scratches on his left leg, and pointed to places on his neck where he claimed he was hit with a bottle. Johnson had some blood on his hand, shorts, and on the outside of his right foot. He told police that at some point, he dozed off, and when he woke up, he noticed the victim was carrying her clothes and trying to leave, but that he blocked the door. Johnson explained further that when he noticed his money was missing from his wallet, he “wanted to look at [the victim‘s] facial expressions. At that point, he sat down on the bed and that‘s . . . when she became irate and jumped up,” and thrеw the bottle at him. Johnson stated he threw the bottle back and hit the victim in the forehead, and that she ended up with the bottle and tried to break it on the entrance to the bathroom.
Johnson does not challenge the sufficiency of the evidence. Nevеrtheless, we have independently reviewed the record and conclude that the evidence, as outlined above, was legally sufficient to authorize a rational trier of fact to find beyond a reasonable doubt that Johnson was guilty of the crimes сharged under the standard of Jackson v. Virginia, 443 U. S. 307 (99 SCt 2781, 61 LE2d 560) (1979).
2.
Johnson argues that his conviction for aggravated assault merged with his malice murder conviction.
OCGA § 16-1-7 (a) affords a defendant with substantive double jeopardy protection by prohibiting multiple convictions and punishments for the same offеnse. Drinkard v. Walker, 281 Ga. 211, 212 (636 SE2d 530) (2006).OCGA § 16-1-7 (a) (1) prohibits a defendant from being convicted of more than one crime if one crime is included in another, and aggravated assault is included in the crime of malice murder when the former is established by proof of the same or less than all the facts or a less culpable mental state than is required to establish the commission of the latter.
(Citations and punctuation omitted.) Reddings v. State, 292 Ga. 364, 366 (2) (738 SE2d 49) (2013). “Separate convictions for the malice murder and aggravated assault of a single victim may be permitted, however, where there is evidence that a ‘dеliberate interval’ separated the infliction of an initial non-fatal injury from the infliction of a subsequent fatal injury. [Cits.]” Id. at 367 (2).
3.
Johnson contends that his false imprisonment conviction merged with his conviction for malice murder. Relying on the argument of the State in opening and closing, he asserts that the evidence showed that thе victim was pinned against a wall and slashed until she died.
As explained in Division 2 above, the test for determining whether one crime is included in another, and therefore merges, is whether the conviction for one of the offenses is established by proof of the same or less than all the facts
4.
Johnson presents three claims of error in the trial court‘s instructions to the jury. Although he argues only that the trial court committed reversible еrror, he concedes in his claims of ineffective assistance that counsel failed to object in each instance; we therefore review the instructions for plain error.4
First, there must be an error or defect — some sort of deviation from a lеgal rule — that has not been intentionally relinquished or abandoned, i.e., affirmatively waived, by the appellant. Second, the legal error must be clear or obvious, rather than subject to reasonable dispute. Third, the error must have affected the aрpellant‘s substantial rights, which in the ordinary case means he must demonstrate that it affected the outcome of the trial court proceedings. Fourth and finally, if the above three prongs are satisfied, the appellate court has the discretion to remedy the error
— discretion which ought to be exercised only if the error seriously affects the fairness, integrity, or public reputation of judicial proceedings.
(Citations, punctuation and emphasis omitted.) State v. Kelly, 290 Ga. 29, 33 (2) (a) (718 SE2d 232) (2011). But Johnson either has failed to demonstrate error, must less plain error, in the court‘s instructions, sеe Woodard v. State, 296 Ga. 803, 807 (2) (771 SE2d 362) (2015), or has failed to show that any error affected the outcome of his trial.
(a) Johnson asserts that the trial court erred in failing to inform the jury that voluntary manslaughter is a lesser included offense to felony murder and that a finding of provocation preсludes a guilty verdict for felony murder. The trial court instructed the jury on voluntary manslaughter following its instruction on malice murder and before its instruction on felony murder, and explained that voluntary manslaughter is a lesser included offense of malice murder (and the verdict form listed voluntary manslaughter as a lesser included offense of only malice murder). The jury found Johnson guilty of malice murder as well as the two counts of felony murder.
Just as in McGill v. State, 263 Ga. 81 (428 SE2d 341) (1993),
[v]oluntary manslaughter was eliminated from the jury‘s
consideration by its finding that appellant was guilty of malice murder. Intent to kill is an essential element of bоth murder and voluntary manslaughter. Provocation, or the lack thereof, is what distinguishes the two offenses. By finding that appellant had committed the homicide with malice, the jury necessarily found that appellant had committed the homicide without the provoсation sufficient to authorize a verdict of guilty of voluntary manslaughter.
(Citations, punctuation and emphasis omitted.) Id. at 83 (3). Therefore Johnson has failed to demonstrate that any error in failing to instruct the jury that voluntary manslaughter is also a lesser included offense of felony murder, affected the outcome of the proceedings.
(b) Johnson asserts that the trial court erred in giving a sequential jury instruction in violation of Edge v. State, 261 Ga. 865 (414 SE2d 463) (1992). In Edge, this Court held that a charge is improperly sequential if it requires “the jury to consider voluntary manslaughter only if it has considered and found the defendant not guilty of malice murder and felony murder.” (Emphasis in original.) Id. at 867 (2). But here, the trial court instructed the jury:
If, after listening to the evidence, you find and believe beyond a reasonable doubt that the defendant committed the offense of malice murder, then you would simply put an X by guilty and then consider the other offenses as thеy are applicable on this verdict form. If, however, you believe there‘s a reasonable doubt as to his guilt, then you would check not guilty, or, if after considering the evidence, you believe that the defendant committed the offense of
voluntary manslаughter as I gave you the charge, then you would consider the offense of voluntary manslaughter as a lesser included offense . . . .
And the verdict form is consistent with this instruction — providing that the jury could find Johnson guilty of malice murder or voluntary manslaughter (or felony murder). See Cloud v. State, 290 Ga. 193, 196-197 (3) (719 SE2d 477) (2011) (jury clearly understood it could consider voluntаry manslaughter as an alternative to murder charges). In any event, as explained in Division 4 (a) above, Johnson has failed to demonstrate that any error affected the outcome of the proceedings.
(c) Johnson argues that the trial court erred in failing to instruct the jury that while mutual combat would prohibit a finding of self-defense, it would support a finding of voluntary manslaughter by provocation. But “[a] charge on mutual combat generally is proper when there is evidence of a mutual intention or agreement to fight.” (Citation and punctuation omitted.) Pulley v. State, 291 Ga. 330, 334 (3) (729 SE2d 338) (2012). There is no evidence here that Johnson and the victim mutually agreed to fight, and evidence of an argument over money that turned violent is not sufficient to show mutual combat. See Carruth v. State, 290 Ga. 342, 348-349 (6) (721 SE2d 80) (2012) (charge on mutual
5.
Johnson contends that his trial counsel was ineffective in failing to object to the trial court‘s instructions to the jury on the grounds presented in Division 4, and that the cumulative effect оf counsel‘s errors was so prejudicial to his trial as to require reversal of his convictions. But as explained above, there was either no error in the court‘s instructions or any alleged error did not affect the outcome of the trial, so Johnson cannot succeed on his claims of ineffective assistance. See Johnson v. State, 295 Ga. 615, 619 (3) (a) (759 SE2d 837) (2014). Likewise, he cannot succeed on his claim that counsel‘s cumulative errors deprived him of a fair trial. See Smith v. State, 288 Ga. 348, 354 (8) (j) (703 SE2d 629) (2010).
6.
Finally, Johnson asserts that his conviction for false imprisonment must be reversed because the indictment was insufficient to state a crime because it quoted only the statutory language without informing him of how he allegedly committed the crime. However, his “failure to file [a] special demurrer seeking additional information before pleading not guilty to the indictment constitutes a waiver of his right to be tried on a perfect indictment. [Cits.]” Stinson v. State, 279 Ga. 177, 180 (2) (611 SE2d 52) (2005).
Judgment affirmed in part and vacated in part. All the Justices concur.
Decided March 6, 2017.
Murder. Terrell Superior Court. Before Judge Bishop.
Richard Parker, for appellant.
T. Craig Earnest, District Attorney, Ronald S. Smith, Assistant District Attorney; Samuel S. Olens, Attorney General, Paula K. Smith, Senior Assistant Attorney General, Scott O. Teague, Assistant Attorney General, for appellee.