Appellant Corrick D. Johnson was tried before a jury on charges of malice murder, felony murder (two counts), aggravated assault, and false imprisonment, in the death of Latresh Brown.
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 neck (which severed her jugular vein). The medical examiner testified that all of the sharp-force injuries could have been inflicted by the broken liquor bottle. He concluded that the victim’s death was caused by “multiple sharp force trauma ... with blunt force head and abdominal trauma.” The victim was five feet two and a half inches tall and weighed 120 pounds.
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 threw 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.
1. Johnson does not challenge the sufficiency of the evidence. Nevertheless, 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 charged under the standard of Jackson v. Virginia,
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 offense. 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,
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 the 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 required to establish the other conviction. Grissom v. State,
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 error, he concedes in his claims of ineffective assistance that counsel failed to object in each instance; we therefore review the instructions for plain error.
First, there must be an error or defect — some sort of deviation from a legal 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 appellant’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,
(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 precludes 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,
[vjoluntary 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 both 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 provocation 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,
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 they 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 manslaughter 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,
(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,
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 of 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,
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
Judgment affirmed in part and vacated in part.
Notes
The crimes occurred in June 2007. On December 7, 2007, a Terrell County grand jury indicted Johnson on charges of malice murder, felony murder (predicated on aggravated assault and false imprisonment), aggravated assault, and false imprisonment. Following an August 2008 jury trial, Johnson was found guilty on all charges. He was sentenced to life in prison for murder and given concurrent sentences for aggravated assault and false imprisonment. Johnson’s motion for new trial was filed on August 19, 2008, amended by new counsel on November 3, 2014, and denied on November 5,2015. His notice of appeal was filed on November 23, 2015. The case was docketed in this Court for the September 2016 term and submitted for a decision on the briefs.
We also note that the trial court purported to “merge” the felony murder convictions with the malice murder conviction. However, the felony murder counts did not merge but were vacated by operation of law. See Southall v. State,
Around the time of the incident, Johnson weighed 190 pounds and was five feet nine inches tall.
Johnson was tried in 2008, after the 2007 effective date of OCGA § 17-8-58, providing for plain error review of unobjected-to jury instructions.