S19A1361. MCELRATH v. THE STATE.
SUPREME COURT OF GEORGIA
FEBRUARY 28, 2020
308 Ga. 104
MELTON, Chief Justice.
Murder. Cobb Superior Court. Before Judge Green.
On Dеcember 11, 2017, a jury found Damian McElrath guilty but mentally ill of the felony murder and aggravated assault of his adoptive mother, Diane, whom McElrath killed by stabbing over 50 times in a single episode.1 Based on the same episode, McElrath was also found not guilty of the malice murder of Diane by reason of insanity. McElrath now appeals, contending among other things
1. The Evidence at Trial.
(a) The evidence presented at trial showed that McElrath, who was 18 at the time of the stabbing, had suffered from either schizophrenia or a related schizoaffective disorder. As a result of this
On July 16, 2012, McElrath stabbed Diane more than 50 times in an attack that began in an upstairs bedroom of the home Diane and McElrath shared and ended at the front door. There, Diane
Shortly thereafter, police arrived at the scene. McElrath was transported to the police station for interrogation, where he admitted that “I killed my Mom because she poisoned me.” When the detective attempted to clarify any difficulties McElrath may have had with Diane, McElrath stated that he was only mad that she poisoned him. When the detective asked him if he thought stabbing Diane was right or wrong, McElrath stated, “It was right to me.”
A number of experts testified at McElrath‘s trial.6 There was a general consensus that McElrath was, in fact, mentally ill and suffering from at least some delusions, including the delusion that he was bеing poisoned by Diane. Dr. Kevin Richards, the defense expert, testified that, at the time McElrath stabbed Diane, McElrath was acting under the delusion that he was in imminent danger of
(b) As an initial matter, this evidence authorized the jury to find that McElrath was not guilty of malice murder by reason of insanity at the time that he stabbed his mother.
In Georgia, a defendant is presumed to be sane and “a defendant asserting an insanity defense has the burden to prove by a preponderance of the evidenсe that he was insane at the time the crime was committed.” Buford [v. State], 300 Ga. [121, 122 (1) (b) (793 SE2d 91) (2016)] (citing Alvelo v. State, 290 Ga. 609 (3) (724 SE2d 377) (2012)). A defendant may prove insanity by showing that,
at the time of the incident, he lacked the mental capacity to distinguish right from wrong or that he was suffering from a delusional compulsion. See OCGA §§ 16-3-2 9 and16-3-3 ;10 Buford, [supra], 300 Ga. [at 124-125].
Bowman v. State, 306 Ga. 97, 100 (1) (c) (829 SE2d 139) (2019). The delusional compulsion defense is available only when the defendant is “suffering under delusions of an absurd and unfounded nature [and] was compelled by that delusion to act in a manner that would have been lawful and right if the facts had been as the defendant imagined them to be.” (Footnote omitted.) Lawrence v. State, 265 Ga. 310, 313 (2) (454 SE2d 446) (1995).
Here, Dr. Richards testified specifically that McElrath was suffering from a multifaceted delusion, one in which he believеd both
(c) But there was also sufficient evidence to allow the jury to find beyond a reasonable doubt that McElrath was guilty but mentally ill of felony murder based on aggravated assault for stabbing Diane.12 As to guilt, McElrath admitted that he stabbed Diane, and his confession was amply corroborated by the forensic
2. Classification of McElrath‘s Contradictory Verdicts.
(a) Inconsistent verdicts. As a general rule, inconsistent verdicts occur when a jury in a criminal case renders seemingly incompatible verdicts of guilty on one charge and not guilty on another. In Georgia, as explained below, we have abolished the rule that inconsistent verdicts require reversal. Milam v. State, 255 Ga. 560, 562 (2) (341 SE2d 216) (1986). Perhaps the classic example of inconsistent verdicts occurred in United States v. Powell, 469 U. S. 57 (105 SCt 471, 83 LE2d 461) (1984). In Powell, the defendant was acquitted of conspiring to possess cocaine with the intent to distribute but convicted of the “compound offenses of using the telephone in ‘committing and in causing and facilitating’ certain
where truly inconsistent verdicts have been reached, “[t]he most that can be said . . . is that the verdict shows that either in the acquittal or the conviction the jury did not speak their real conclusions, but that does not show that they were not convinced of the defendant‘s guilt.” Dunn [v. United States], 284 U. S. 390, 393 (52 SCt 189, 76 LE 356) (1932). The rule that the defendant may not upset such a verdict embodies a prudent acknowledgment of a number of factors. First, as the above quote suggests, inconsistent verdicts — even verdicts that acquit on a predicate offense while convicting on the compound offense — should not necessarily be interpreted as a windfall to the Government at the defendant‘s expense. It is equally possible that the jury, convinced of guilt, properly reached its conclusion on the compound offense, and then through mistake, compromise, or lenity, arrived at an inconsistent conclusion on the lesser offense. But in such situations the Government has no recourse if it wishes to correct the jury‘s error; the Government is precluded from appealing or otherwise upsetting such an acquittal by the Constitution‘s Double Jeopardy Clause.
(Citations omitted.) Id. at 64-65. The Supreme Court then further concluded:
Inconsistent verdicts therefore present a situation where
Eventually, we followed the United States Supreme Court‘s approach to inconsistent verdicts.
In Milam v. State, [supra], this Court abolished the rule that inconsistent verdicts in irreconcilable conflict in criminal cases warranted reversal (see Hines v. State, 254 Ga. 386, 387 (329 SE2d 479) (1985)), adopting the rationale set out by the U. S. Supreme Court in United States v. Powell, [supra], at 65. . . . In our cases endorsing the abolition of the inconsistent verdict rule, we have determined it is not generally within the court‘s power to make inquiries into the jury‘s deliberations, or to speculate about the reasons for any inconsistency between guilty and not guilty verdicts. Dumas v. State, 266 Ga. 797 (2) (471 SE2d 508) (1996). As we observed in King v. Waters, 278 Ga. 122 (1) (598 SE2d 476) (2004), appellate courts “cannot know and should not speculate why a jury acquitted on . . . [one] offense and convicted on . . . [another] offense. The reason could be an error by the jury in its consideration or it could be mistake, compromise, or lenity. . . .”
Turner v. State, 283 Ga. 17, 20 (2) (655 SE2d 589) (2008).
(b) Mutually exclusive verdicts. The term “mutually exclusive” generally applies to two guilty verdicts that cannot legally exist simultaneously. In such cases, where it is “both legally and logically impossible to convict [on] both counts, a new trial [should be] ordered.” Dumas, supra, 266 Ga. at 799 (2). In Dumas, we explained:
[V]irtually all . . . Georgia cases affirming Georgia‘s abolition of the inconsistent verdict rule involve jury verdicts of guilty and not guilty that are alleged to be inconsistent. These cases are in accordance with the principle that it is not generally within the trial court‘s power to make inquiries into the jury‘s deliberations, or to speculate about the reasons for any inconsistency between guilty and not guilty verdicts. However, this appeal presents an entirely different scenario, because it involves two verdicts of guilty that not only were inconsistent, but also were mutually exclusive.
(Footnotes and emphasis omitted.) Id. We went on to point out that
where there are mutually exclusive convictions, it is insufficient for an appellate court merely to set aside the lesser verdict, because to do so is to speculate about what the jury might have done if properly instructed, and to usurp the functions of both the jury and trial court.
Dumas illustrates the problem of mutually exclusive verdicts. In that case, the jury found the defendant guilty of malice murder, vehicular homicide, and driving under the influence. Thereafter, the trial court instructed the jury it had rendered contradictory verdicts, and, as a result, the trial court sent the jury back for further deliberations. The jury later returned verdicts finding the defendant guilty of malice murder and driving under the influence. On appeal, the defendant argued both that the trial court was obligated to accept the jury‘s first verdicts and that the essential elements of malice murder and vehicular homicide contradicted each other, making those verdicts mutually exclusive. Id. at 798 (1).
We ultimately affirmed the defendant‘s conviction based on the second set of verdicts. We ruled that the first verdicts could not be accepted because the guilty verdicts for malice murder, an offеnse requiring a showing of the presence of malice aforethought, and vehicular homicide, requiring a showing of the absence of malice
As McElrath‘s verdicts are not two contradictory guilty verdicts, his verdicts cannot be classified as “mutually exclusive.”
(c) Repugnant verdicts. Though they do not involve two guilty
when[,] instead of being left to speculate about the unknown motivations of the jury [regarding its return of contradictory verdicts,] the appellate record makes transparent the jury‘s reasoning why it found the defendant not guilty of one of the charges, “[t]here is . . . no speculation, and the policy explained in Powell and adopted in Milam, supra, . . . does not apply.” King v. Waters, supra, 278 Ga. at 123.
Turner, supra, 283 Ga. at 20-21 (2). See also Guajardo v. State, 290 Ga. 172 (2) (718 SE2d 292) (2011).
This case falls into the category of repugnant verdicts, as the
In this case, the jury must have determined that McElrath was
3. Milam and Shepherd Do Not Control.
Contrary to the State‘s arguments, McElrath‘s case is not
(a) Milam. In Milam, unlike here, there was evidence to support a finding that the defendant‘s mental state changed during the commission of the charged crimes. More specifically, in Milam, the defendant contended that he was suffering from delusions that made him very angry and madе him want “to blast away everybody.” Milam, supra, 255 Ga. at 561. On the day of the crimes,
[Appellant] went to his father‘s bedroom and obtained a single-barreled, single-shot shotgun belonging to his father. As [Ben] Cheese exited the bathroom appellant shot him. [Walter] Beasley testified that he opened his bedroom door after hearing the gunshot and walked down a hallway toward Horace Milam‘s bedroom. Appellant, who was standing inside the bedroom, yelled for Beasley to get back, and Beasley returned to his room. Horace Milam stepped over Cheese and went into his own bedroom, where he was shot by appellant.
Id. at 560. The jury found Milam to be not guilty by reason of insanity for the murder of Cheese and guilty but mentally ill of the murder of Horace Milam. We analyzed the conflicting verdicts as follows:
Initially, we note that, although the psychiatrist testified, first, that [Appellant] told him that he had heard voices in the past and that on the day of the killings those voices had made him very angry, and second, that he was of the opinion that appellant was mentally ill, he did not testify that appellant did not know the difference between right and wrong at the time of the crime. Moreover, . . . the state did present evidence of sanity in this case [to rebut the prior finding of insanity]. In this regard the record shows thаt appellant reloaded the gun after shooting Ben Cheese, and that when he saw Walter Beasley, he merely told Beasley to get back, instead of shooting him. After Beasley retreated, appellant shot and killed Horace Milam when Horace entered the bedroom. From appellant‘s warning to Beasley, the jury could infer that appellant knew that killing was wrong; that he did not want to kill Beasley; and that the demons he claimed to hear actually did not “make him want to blast away everybody.” In addition, appellant‘s flight from the house is evidence which a rational juror could consider as a factor indicating that appellant knew that his actions were wrong. Finally, the arresting officers testified that appellant was calm and cooperative following his arrest, thus contradicting appellant‘s testimony that, at the time of the killings, voices were driving him mad and he did not know what he was doing.
Id. In other words, there was evidence that supported the jury‘s determination that Milam‘s mental state shifted between the distinct acts of shooting Cheese and shooting Horace Milam, which were separated by Milam‘s act of reloading the gun he was shooting
In this case, however, McElrath was indicted for stabbing Diane in a single episode. No evidence of a deliberate interval during the stabbing was presented to the jury to support a finding that McElrath‘s mental state changed at any time as he stabbed Diane.
(b) Shepherd. Shepherd v. State, supra, on which the State largely relies, is distinguishable from the present case, at least as to the result of that opinion. In Shepherd, the defendant shot and killed his half-sister, and the jury found him not guilty by reason of insanity for malice murdеr, but found him guilty but mentally ill of felony murder predicated on aggravated assault, felony murder predicated on possession of a firearm by a convicted felon, aggravated assault, possession of a firearm by a convicted felon, and possession of a firearm during the commission of a crime. In sentencing Shepherd, the trial court merged the counts of felony
The defendant contended that these verdicts were mutually exclusive. This Court rejected the defendant‘s claim, explaining that only two contradictory guilty verdicts fall into the category. Shepherd, 280 Ga. at 248 (1). We went on to discuss the verdicts as inconsistent, and determined that, despite the fact that the crimes occurred at one time and against the same victim,17 the rule that inconsistent verdicts require reversal had been abolished by Milam.
As to that unaddressed issue, there was evidence to logically and legally suрport both a finding that the defendant was not guilty by reason of insanity for malice murder and a finding that the defendant was guilty of the ongoing offense of possession of a firearm by a convicted felon and felony murder predicated on that crime. The defendant had admitted that he knew that, as a convicted felon, he was not allowed to be in possession of the handgun, the felonious possession of which was the proximate cause of the victim‘s death.18 See Shepherd, supra, 280 Ga. at 250 (2).
The jury‘s verdicts that the defendant in Shepherd was guilty but mentally ill of aggravated assault and felony murder predicated on aggravated assault are more problematic, given our analysis of
4. The Order Remanding McElrath to the Department of Corrections.
McElrath argues that the trial court improperly discharged him from a state mental hеalth facility and remanded him to the custody of the Department of Corrections by applying an inappropriate subsection of
5. McElrath‘s Remaining Contentions.
McElrath‘s remaining enumerations all relate specifically to his contention that he was improperly found guilty but mentally ill of and convicted for felony murder based on aggravated assault. Because we conclude that both of McElrath‘s verdicts must be vacated as repugnant, we need not reach these remaining arguments.
Judgment vacated and case remanded with direction. All the Justices concur.
Murder. Cobb Superior Court. Before Judge Green.
Kilgore & Rodriguez, H. Maddox Kilgore, Carlos J. Rodriguez, for appellant.
Joyette M. Holmes, District Attorney, Amelia G. Pray, Assistant District Attorney; Christopher M. Carr, Attorney General, Patricia B. Attaway Burton, Deputy Attorney General, Paula K. Smith, Senior Assistant Attorney General, Meghan H. Hill, Assistant Attorney General, for appellee.