MAXWELL v. THE STATE; WASHINGTON v. THE STATE
S21A0302, S21A0303
In the Supreme Court of Georgia
Decided: June 1, 2021
Zоnnique Maxwell and Tyquarius Washington (collectively “Appellants“) appeal the lower court‘s partial denial of their respective motions for autrefois convict and pleas of procedural double jeopardy based on
1. The available evidence2 relevant to Appellants’ motions indicates that, on September 17, 2017, a shooting occurred on East 33rd Street in Savannah. A police officer wаs dispatched to that scene, but he was subsequently directed to Memorial Medical Center, where Jaheim Morris had arrived with a gunshot wound to his head. Morris died later that day. At the hospital, police learned that Morris had been driven to the hospital in a
Maxwell was arrested for possession of a handgun by a person under the age of 18, see
Similar to Maxwell, Washington was initially arrested at the hospital and charged with carrying weapons without a license. See
On May 15, 2019, and October 21, 2019, the trial court held a hearing regarding the motions filed by Appellants. At this hearing, the State agreed to the dismissal of the single count of carrying a weapon without a license against Maxwell (Count 29) and the two cоunts of carrying a weapon without a license against Washington (Counts 33 and 34).8 The trial court granted Appellants’ motions with regard to these charges, because they arose from Appellants’ possession of the same handguns at the hospital and were thereby barred by procedural double jeopardy. However, the trial court denied the motions with respect to all of the remaining superior court charges. Appellants now challenge this ruling with largely idеntical arguments.
For the reasons set forth below, we hold that, for the majority of the superior court counts against Appellants, the trial court properly denied Appellants’ motions. However, as set out in Division 4, we hold that, with respect to one count of street gang activity against Maxwell and two counts against Washington, the trial court should have dismissed these counts as they are explicitly premised in the indictment on the counts that were dismissed.
2. “On appeal from the grant or denial of a double jeopardy plea in bar, we review the trial court‘s oral and written rulings as a whole to determine whether the trial court‘s findings support its conclusion.” (Citation and punctuation omitted.) State v. Hill, 333 Ga. App. 785, 785 (777 SE2d 265) (2015). When the facts are undisputed, our review of the trial court‘s application of the law to those facts is de novo. See id. The trial court‘s factual findings are assessed under the standard of clear error. See Jenkins v. State, 294 Ga. 506, 508 (1) (755 SE2d 138) (2014).
As background for Appellants’ claim regarding procedural double jeopardy protection, we have previously explained:
The [constitutional] rule against double jeopardy is . . . expressed in various terms but basically provides that no person shall be put in jeopardy of life or liberty more than once for the same offense. It is a simple and concise statement of law. Unfortunately[,] it has become confused because many courts have not distinguished its application to the bar of successive prosecutions and the bar to multiple convictions. The bar to successive prosecutions is referred to as the procedural aspect of the double jeopardy rule. The rationale behind the bar to successive prosecutions is to prevent harassment of the accused. The bar to multiple convictions is referred to as the substantive aspect. The rationale behind the bar to multiple conviсtions is to prevent multiple and excessive punishments.
The bar to multiple convictions usually arises where several crimes arising out of one criminal transaction are tried at the same time. In such cases the rule does not operate until after the verdicts. Under Georgia law it bars the conviction and therefore the punishment of all crimes which are as a matter of law or a matter of fact included in a major crime for which the defendant has been convicted. State v. Estevez, 232 Ga. 316 (206 SE2d 475) (1974). However, the bar to multiple convictions may have a procedural aspect where the crimes arising out of the same criminal transaction are tried separately. Where crimes are tried separately it is generally held that if multiple convictions arising out of a single prosecution are
barred they will likewise be barred from successive prosecution. Therefore[,] when crimes are to be prosecuted sepаrately[,] the more serious known crimes should be prosecuted first to avoid the conviction of a lesser crime barring a subsequent prosecution for a more serious crime.
(Footnote omitted.) Keener v. State, 238 Ga. 7, 7-8 (230 SE2d 846) (1976).
These constitutional double jeopardy protections are enhanced by additional statutory protections provided under state law. See State v. Adams, 355 Ga. App. 875, 880-881 (846 SE2d 148) (2020). “Because the Georgia Code expands the proscription of double jeopardy beyond that provided for in the United States and Georgia Constitutions, all questions of double jeopardy in Georgia must now be determined under
Turning to the pertinent statutes,
A prosecution is barred if the accused was formerly prosecuted for a different crime . . . if such former prosecution . . . [r]esulted in either a conviction or an acquittal and the subsequеnt prosecution . . . is for a crime with which the accused should have been charged on the former prosecution (unless the court ordered a separate trial of such charge)[.]
In other words, “[a] second prosecution is barred under
3. To properly assess Appellants’ arguments, we consider each of these three procedural double jeopardy factors in turn. We note at the outset of this consideration that application of thesе factors may often be difficult when, in cases like this one, the question of procedural double jeopardy initially arises at a time before trial has occurred. The defendant bears the burden of proving procedural double jeopardy, see id., and a court must make decisions based on the limited facts or representations that are currently available from the parties. And, as discussed more fully in Division 3 (c), a court must also focus on consideratiоn of how the State could prove its case at a future trial, as it may be impossible to know how the State actually will prove its case once trial is underway.
(a) It is undisputed that the state court charges relating to possession of a firearm for both Appellants could have been brought in superior court along with all of the remaining charges in a single prosecution. Superior courts have concurrent jurisdiction with all inferior courts over misdemeanor offenses. See Hicks v. State, 228 Ga. App. 235, 236 (1) (a) (494 SE2d 342) (1997) (citing
(b) Both the state court crimes and the superior court charges also were known to the proper prosecuting officer when the accusations against Appellants were filed. The District Attorney for the Eastern Judicial Circuit is the proper prosecuting officer for both the State and Superior Courts of Chatham County. Tellingly, the accusations for the state court crimes as well as the indictments for the superior court charges against both Appellants were signed by that district attorney. “[T]he appearance of the district attorney‘s name on both an accusation and indictment constitutes circumstantial evidence which conclusively establishes [her] actual knowledge of the pendency of the prosecutions and of the offenses charged in each.” Mack v. State, 249 Ga. App. 424, 426 (547 SE2d 697) (2001). See also State v. Smith, 259 Ga. 352, 352 (381 SE2d 37) (1989). The second factor is also satisfied.
(c) The only question that remains is whether the state court crimes and the superior court charges for Appellants аrise from the same conduct for purposes of statutory procedural double jeopardy.
In order to determine whether offenses occurred as a result of the same conduct to constitute procedural double jeopardy, . . . the crimes, inter alia, must arise from the same transaction or continuing course of conduct, occur at the same scene, occur on the same date, and occur without a break in the action; additionally, if it is necessary to present evidence of the one crime in order to prove the other, then the State must prosecute those charges at the same time.
(Footnote omitted.) Johns v. State, 319 Ga. App. 718, 719 (738 SE2d 304) (2013). See also State v. Stewart, 317 Ga. App. 82, 84 (729 SE2d 478) (2012) (“A court also should consider whether the crimes occurred on the same date, at the same time, and in the same place, and whether the crimes had the same object and involved the same circumstances and parties.“) (citation omitted). As the trial court correctly emphasized in its order,10 it is impossible to know at this stage in the proceedings exactly how the State will prove its case, so, as the trial court did, we must consider how the State could prove its case at a future trial based on whatever facts may be currently available.
While the state court crimes and the alleged superior court offenses were committed on the same date, as indicated by the prosecutors’ representations at the pleа hearings, they did not necessarily occur at either the same scene or the same time. According to the prosecutor, the state court gun possession crimes arose from Appellants’ encounter with police at the hospital, where Appellants were apprehended. In contrast, rather than at the hospital, the superior court charges could be proved based on the shooting of Morris that occurred approximatеly 2.5 miles away at East 33rd Street. Additionally, the crimes at the hospital were committed at some time after the shooting – at least a period of time long enough for Morris to be driven to the hospital from the scene of the shooting. In other words, the State could conceivably prove the actions leading to Morris‘s shooting happened at a distinct point in time from Appellants’ arrival at the hospital. These actions would also be separated by the Appellants’ efforts to get their companion to a hospital in order for him to receive medical help. So, it is possible that at least by the time Appellants reached the hospital, one course of conduct had ended, and a different course of conduct had begun. See Cooper v. State, 253 Ga. 736, 737 (2) (325 SE2d 137) (1985) (violation of ordinance by possessing a knife at a location different than a rape committed at knifepoint on the same date considered a sеparate transaction). See also Jackson v. State, 336 Ga. App. 140, 144-45 (2) (784 SE2d 7) (2016) (no continuous course of conduct existed when defendant was charged in superior court with sexually assaulting victim inside an apartment and was charged in state court for criminal trespass and weapons charges after being found outside a different building in the same apartment complex “some time later” that same day); Johns, supra, 319 Ga. App. at 720 (defendant‘s guilty plea to misdemeanor criminal trespass did not bar subsequent DUI prosecution on procedural double jeopardy grounds where the criminal trespass was completed prior to the traffic stop, even though stop occurred near the residence in question and police had information that defendant was intoxicated during the criminal trespass event). Therefore, for all of the reasons discussed above, the trial court appropriately determined that the superior court charges could be proven by a course of conduct different than the state court crimes.
The last inquiry is whether it is necessary to present evidence of the gun possession crimes at the hospital in order to prove the superior court charges. With regard to the charges of felony murder, aggravated assault, and possession of a firearm during the commission of a felony, the State could prove those felonies by showing that the Appellants possessed firearms and actually сommitted these offenses, or that a co-defendant of the Appellants actually committed the crimes and that Appellants helped in the commission of the crimes, encouraged a co-defendant to commit the crimes, or otherwise engaged in conduct that would make Appellants criminally responsible as parties to the crimes. See
and both of which could be presented to a trier of fact without disclosing evidence of the other“); Jaheni v. State, 285 Ga. App. 266, 269-270 (2) (a) (645 SE2d 735) (2007) (“We reject any contention that when one steals a vehicle, every act however unrelated and independent which he commits while in possession of that vehicle is, by virtue of that single fact, of the same conduct and same continuing transaction as the theft of the vehicle.“) (footnote and punctuation omitted). It is also the case that, for the bulk of the remaining superior court charges against Appellants (excluding Counts 56, 60, and 61, which are addressed in the next division), we cannot say at this point in the proceeding that evidence of the state court crimes would be necessary to prove the superior court charges, and, as such, the trial court correctly held that Appellants had not satisfied their burdens of proving procedural double jeopardy. See Stewart, supra, 317 Ga. App. at 84-85.12
4. However, because of the dismissal of Count 29 against Maxwell and Counts 33 and 34 against Washington, to which the State agreed and has not sought to appeal, certain of the counts of criminal street gang activity must be considered differently from the others. Count 56 against Maxwell and Counts 60 and 61 against Washington allege that Appellants engaged in criminal street
Accordingly, the trial court did not err in the manner it handled Appellants’ procedural double jeopardy motiоns, except with respect to Counts 56, 60, and 61.
Judgments affirmed in part and reversed in part. All the Justices concur.