IN THE MATTER OF HARVEY N. GOLDBERG.
S98Y1931
Supreme Court of Georgia
SEPTEMBER 21, 1998
(505 SE2d 216)
PER CURIAM.
Harvey N. Goldberg petitions this Court to accept the voluntary surrender of his license to practice law in this state. Goldberg admits that he has been charged with, and will plead guilty to, possession of cocaine, a felony under the Georgia Controlled Substances Act. He admits that a conviction based on his plea will constitute a violation of Standard 66 (conviction of a felony or misdemeanor) of Bar Rule 4-102 (d). The State Bar has no objection to Goldberg‘s petition, and Goldberg waives all his rights to a hearing.
We have reviewed the record and agree to accept Goldberg‘s petition for the voluntary surrender of his license, which is tantamount to disbarment under Bar Rule 4-110 (f). The name of Harvey N. Goldberg is hereby removed from the roll of persons entitled to practice law in the State of Georgia. Goldberg is reminded of his duties under Bar Rule 4-219 (c) to timely notify all clients of his inability to represent them, to take all actions necessary to protect their interests, and to certify to this Court that he has satisfied the requirements of the rule.
Voluntary surrender of license accepted. All the Justices concur.
DECIDED SEPTEMBER 21, 1998.
William P. Smith III, General Counsel State Bar, E. Duane Cooper, Assistant General Counsel State Bar, for State Bar of Georgia.
Steven E. Lister, for Goldberg.
JOHNSON v. THE STATE.
S98A0652
Supreme Court of Georgia
SEPTEMBER 28, 1998
(506 SE2d 374)
SEARS, Justice.
SEARS, Justice.
Michael Johnson appeals from his felony murder conviction and resulting life sentence concerning the death of his sister‘s five-month-old son.1 Following a joint trial, Johnson, his sister, and her boyfriend
The evidence of record, when viewed in a light most favorable to the guilty verdict, was sufficient to enable rational jurors to make the following factual findings: On the night of December 28, 1996, Jennifer Johnson‘s apartment was occupied by three adults — appellant Johnson, his sister Jennifer, and her boyfriend Christopher Morman.2 Johnson was downstairs in the apartment, either on the sofa or on a mattress placed on the floor, and Jennifer and Morman were upstairs with the baby. At approximately 6:00 the following morning, Johnson placed a call to 911 emergency services. Johnson told the 911 operator that the baby was not breathing. When emergency technicians arrived at the apartment, the baby was dead. It was later determined that the infant had been bludgeoned to death.
Ms. Snell, who lived in the adjoining apartment, testified that at approximately 3:00 a.m., she had heard the baby crying through the upstairs common wall between the apartments, and that she then heard a loud thump. After that, she did not hear the baby cry again. Thirty minutes later, she heard footsteps on the neighboring apartment‘s stairwell. At approximately 4:00 a.m., she heard Johnson on the porch outside the apartment saying “I didn‘t do it. I didn‘t do it.” The next day, another neighbor saw Johnson outside the apartment crying and saying, “They just aggravate, just aggravate, just aggravate.” Still another neighbor heard Johnson on the telephone, saying that he “did not do it.” When investigators went to the apartment to photograph the baby‘s crib, they were told by Jennifer Johnson that the crib had been destroyed and placed in a dumpster. A search of dumpsters in the apartment complex proved fruitless; the crib was not recovered. When questioned by police about the baby‘s death, Johnson denied any knowledge of it.
Thus, the State presented evidence that (1) on the night of the murder, Johnson was downstairs in the apartment; (2) on the night of the murder, two other adults — the baby‘s mother and her boyfriend — were upstairs in the apartment, with the baby; (3) Johnson called 911 to report that the baby was not breathing; (4) neighbors heard Johnson say he “did not do it,” and observed him acting upset; (5) Johnson denied knowledge about the murder, and offered no help to investigators; and (6) someone, acting alone or in concert with someone else, removed the crib from the apartment. There also was
In considering whether the evidence presented at trial is sufficient to support a criminal conviction, this Court views the evidence submitted in a light most favorable to the prosecution,3 and defers to the jury‘s assessments of the weight of the evidence and the credibility of witnesses.4 Even with the benefit of these favorable inferences, however, the State did not present evidence upon which a reasonable jury could have concluded that Johnson committed felony murder in connection with the infant‘s death. Under
The State is, of course, required to prove every element of a crime charged beyond a reasonable doubt.6 In this case, the State failed to meet that burden. Certainly, no direct evidence was introduced at trial to establish that Johnson acted with malicious intent toward the baby, or caused the baby to suffer physical pain. Nor was there any circumstantial evidence from which the jury could infer that Johnson mistreated the baby. It was shown only that Johnson was present in the apartment on the night of the murder, denied having committed the murder, called 911, and failed to assist in the police investigation. Since Johnson was heard saying “I didn‘t do it” roughly two hours before the 911 emergency call was made, it might be inferred that he failed to call 911 immediately after learning that the baby had been harmed. While it also might be inferred that he withheld relevant information from investigators, such conduct, while culpable, provides no basis for reasonable persons to conclude beyond a reasonable doubt that Johnson was guilty of bludgeoning the baby, causing its death. As made clear by the recitation of facts above, the State‘s evidence did not establish, or even infer, the existence of any of the essential elements of cruelty to children or felony murder.
Furthermore, the State‘s case against Johnson was based entirely upon circumstantial evidence, and the law is clear that unless the State‘s evidence excludes every reasonable hypothesis except that of Johnson‘s guilt, it has failed to carry its burden to
Accordingly, we must conclude that the evidence presented at trial was insufficient to support Michael Johnson‘s conviction for felony murder, with cruelty to children being the underlying felony, in connection with the death of his infant nephew.
Judgment reversed. All the Justices concur, except Hunstein, Thompson and Hines, JJ., who dissent.
HUNSTEIN, Justice, dissenting.
For the reasons set forth in my majority opinions in Johnson v. State, 269 Ga. 632 (501 SE2d 815) (1998) and Morman v. State, 269 Ga. 632 (501 SE2d 815) (1998), I am committed to the view that the evidence presented in this case was sufficient to support the jury‘s verdict finding Michael Johnson and his co-defendants guilty of felony murder based on the underlying felony of cruelty to children. Therefore, I respectfully dissent to the reversal of his conviction.
There is evidence in the record that Michael Johnson had been a party to or complied with the prior abuse of the baby. One neighbor specifically testified that she observed Chris Morman grab the three-four-month-old baby by the wrist and swing him above his head until the baby threw up. This same witness testified that Michael Johnson
I am likewise committed to the conclusion that Michael Johnson, a member of the household, knew as well as any of the co-defendants how Chris Morman treated the baby, and was lying about it when he talked to investigators. “A participant to a crime may be convicted for the crime although he . . . is not the person who directly commits the crime.
I am authorized to state that Justice Thompson and Justice Hines join in this dissent.
DECIDED SEPTEMBER 28, 1998.
Robert M. Thomas, for appellant.
J. Brown Moseley, District Attorney, Robert R. Auman, Assistant District Attorney, Thurbert E. Baker, Attorney General, Paula K. Smith, Senior Assistant Attorney General, Elizabeth L. Jaeger, Assistant Attorney General, for appellee.