Lead Opinion
Fоllowing a jury trial, Lester James Smith, Jr., was found guilty of, among other things, malice murder and attempting to elude a police officer in connection with the shooting death of Joel Andresen during a failed drug deal aneed chase involving five police officers.
1. Viewed in the light most favorable to the jury’s vеrdict, the evidence reveals that, on June 17, 2008, Andresen and his best friend, Stephanie Newbi, walked to Big John Road for Andresen to sell marijuana to Smith, a convicted felon. Smith drove to the site of the proposed drug deal in a black Acura, and Andresen entered the passenger side of the Acura. The two men drove away and turned onto Powers Ferry Road. Newbi walked home.
Later that night, Andresen’s body was found in the Powers Ferry Church of Christ parking lot with a fatal gunshot wound to the abdomen. Police were called to the scene, where they retrieved a cell phone and a green nylon bag from thе ground near the victim. Police accessed the cell phone and discovered several calls to and from Smith. The next day, police went to Smith’s address in search of Smith and his black Acura. After setting up surveillance near the residence, police observed Smith’s black Acura leaving the neighborhood.
Police followed the Acura, and, when a marked Cobb County police car arrived and approached the Acura as well, the Acura accelerated, eventually leading five marked police cars on a high-speed chase. At varying points during the chasе, three different police vehicles became the lead police cars pursuing the Acura, and the police officers in these vehicles were close enough to maintain visual contact with the vehicle. One of the police vehicles even pulled alongside the Acura for a brief time before the driver of the Acura was able to accelerate and get away from the police car. In any event, all of the marked police vehicles involved in the chase had their police lights and sirens engaged and made direct visual contact with the Acura such that the driver of the Acura had the opportunity to see them during the chase. Nevertheless, with each new police encounter, the Acura driver still refused to end the chase. Eventually, the Acura stopped after it collided with one of the pursuing patrol cars. An officer went to the stopped Acura and pulled the driver,
After waiving his Miranda rights, Smith agreed to talk to police. Smith told police he contacted Andresen to buy marijuana. Smith said Andresen pulled a gun during the transaction in the Powers Ferry Church of Christ parking lot, and that the gun discharged as Smith and Andresen struggled over it.
The evidence was sufficient to enable a rational trier of fact to find Smith guilty of all the crimes for which he was convicted beyond a reasonable doubt. Jackson v. Virginia,
2. Citing Heard v. State,
“In Heard, [supra,] this Court held that justification can be a defense to felony murder in some situations, notwithstanding the limitations of OCGA § 16-3-21 (b) (2).” Williams v. State,
In this connection, we must recognize that “Heard did not abolish OCGA § 16-3-21 (b) (2) altogether; rather, Heard made it clear that ‘that section applies where it makes sense to do so, for example, to a burglar or robber who kills someone while fleeing.’ Heard, supra at 263.” (Emphasis supplied.) Williams, supra,
Here, however, much like in the case of a fleeing robber, it “makes sense” to apply the prohibition of OCGA § 16-3-21 (b) (2). See Heard, supra. In the instant case, as opposed to simply minding his own business as a convicted felon, Smith affirmatively chose to engage in the potentially dangerous and violent criminal business of a felony drug deal before the fatal confrontation with Andresen took place.
3. Smith argues that the trial court erred by sentencing him on five separate counts of attempting to elude a police officer. We disagree.
The question of multiple punishments (as opposed to multiple prosecutions) for the same criminal conduct is addressed under the rubric of substantive double jeopardy. Whether multiple punishment is permissible requires examination of the legislative intent underlying the criminal statute. It is for the legislature to determine to what extent certain criminal conduct has demonstrated more serious criminal interest and damaged society and to what extent it should be punished. Typically, the question is whether the same conduct may be punished under different criminal statutes. In that situation, it is appropriate to apply the . . . “required evidence” test. . . .[4 ] However, a different ques*773 tion is presented here: whether a course of conduct can result in multiple violations of the same statute. The United States Supreme Court has held that this question requires a determination of the “unit of prosecution,” or the precise act or conduct that is being criminalized under the statute. [See United States v. Universal CIT Credit Corp.,344 U. S. 218 , 224 (73 SC 227, 97 LE 260) (1952).] . . . Accordingly, the starting point must be the statute itself.
(Punctuation and footnotes omitted; emphasis supplied.) State v. Marlowe,
Pursuant to OCGA § 40-6-395:
It shall be unlawful for any driver of a vehicle willfully to fail or refuse to bring his or her vehicle to a stop or otherwise to flee or attempt to elude a pursuing police vehicle or police officer when given a visual or an audible signal to bring the vehicle to a stop. The signal given by the police officer may be by hand, voice, emergency light, or siren. The officer giving such signal shall be in uniform prominently displaying his or her badge of office, and his or her vehicle shall be appropriately marked showing it to be an official police vehicle. . .. Any person violating [this provision] who, while fleeing or attempting to elude a pursuing police vehicle or police officer in an attempt to escape arrest for any offense, other than a violation of this chapter not expressly provided for in this paragraph: (i) Operates his or her vehicle in excess of 20 miles an hour above the posted speed limit; (ii) Strikes or collides with another vehicle or a pedestrian; (iii) Flees in traffic conditions which place the general public at risk of receiving serious injuries; (iv) Commits a violаtion of paragraph (5) of*774 subsection (a) of Code Section 40-6-391; or (v) Leaves the state[;] shall be guilty of a felony punishable by a fine of $5,000.00 or imprisonment for not less than one year nor more than five years or both.
Id. at (a) and (b) (5) (A).
Based on the plain language of the statute, the act or conduct that is prohibited by OCGA § 40-6-395 is the “ willful [ ] ... fail[ure] or refus[al] to bring [one’s] vehicle to a stop or otherwise to flee or attempt to elude a pursuing police vehicle or police officer when given a visual or an audible signal to bring the vehicle to a stop.” (Emphasis supplied.) Thus, it is the act of fleeing from an individual police vehicle or police officer аfter being given a proper visual or audible signal to stop from that individual police vehicle or officer, and not just the act of fleeing itself, that forms the proper “unit of prosecution” under OCGA § 40-6-395. See State v. Mitchell,
4. Smith claims that the trial court erred by denying his motion to strike Juror No. 7 for cause. The record reveals that, although Juror No. 7 initially expressed concern that the details of the high-speed chase as reflected in the indictment made him question why Smith did not plead guilty, he ultimately answered “yes” when asked whether he could keep an open mind until after the evidence had been presented and was asked by the trial judge to make a final
[n]othing in the juror’s responses [that would] compel[ ] a finding that [he] had formed an opinion of [Smith’s] guilt or innocence that was so fixed and definite that [he] would be unable to set the opinion aside, or that [he] would be unable to decide the case based upon the court’s charge and upon the evidence^] . . . [i]t was not an abuse of discretion [for the trial court] to refuse to excuse the juror.
(Citation omitted.) Corza v. State,
5. Finally, Smith argues that the trial court erred by failing to instruct the jury that his prior convictions that were entered into evidence could only be used for impeachment purposes. However, the record reveals that, although the trial court initially indicated that it would give a limiting instruction at the time that the prior convictions were admitted, Smith’s counsel failed to object when the trial court failed to give such an instruction at the time that the prior convictions were actually tendered into evidence. Smith has therefore waived review of this issue on appeal. See Igidi v. State,
Judgment affirmed.
Notes
On April 2, 2009, Smith was indicted on one count of malice murder, three counts of felony murder (with possession of a firearm by a convicted felon, aggravated assault, and violation of the Georgia Controlled Substances Act as the underlying offenses), two counts of aggravated assault (one count for assault with a deadly weapon and one count for assault with the intent to rob), two counts of possession of a firearm during the commission of a crime, one count of possession of a firearm by a convicted felon, one count of criminal attempt to commit a violation of the Georgia Controlled Substances Act, and five counts of attempting to elude a
We note that the jury was specifically charged that each of the separate counts of attempting to elude a police officer related to each of the individual police vehicles involved in the high-speed chase. Thus, in order to find Smith guilty of attempting to elude a police officer with respect to each vehicle, the jury had to find that all of the relevant elements of OCGA § 40-6-395 had been satisfied with respеct to each police vehicle involved in the chase.
We note that, contrary to Smith’s arguments, Williams, supra, does not stand for the proposition that this Court has “implied that under the proper factual circumstances, a justification defense may be lawfully asserted in the course of an illegal drug transaction.” Appellant’s Brief at 30. In Williams, this Court specifically declined to reach the question whether a viable justification defense could be raised during the course of a drug deal, as, in that case, “the State did not allege, nor did it seek to prove, that [the defendant] killed [the victim] while they were dealing with drugs.” Id. at 373 (2). Here, on the other hand, Smith was specifically charged with, and the State specifically proved that Smith was guilty of, engaging in a felony drug deal when he shot and killed Andresen. See OCGA § 16-13-30 (j).
Because the instant case does not involve two distinct statutory provisions, the “required evidence” test does not apply. In Drinkard v. Walker,
[u]nder the “required evidence” test,. . . [t]he applicable rule is that where the same act or transactiоn constitutes a violation of two distinct statutory provisions, the test to be applied to determine whether there are two offenses or only one, is whether each provision requires proof of a fact which the other does not.
(Emphasis supplied.) Drinkard, supra. We further explained that
[t]he “required evidence” test applies strictly within the context of determining whether multiple convictions are precluded because one of the crimes was “established by proof of the same or less than all the facts” that were required to establish the other crime under OCGA § 16-1-6 (1). There are additional statutory provisions concerning prohibitions against multiple conviсtions for closely related offenses that are not at issue here. These provisions include: OCGA § 16-1-6 (1) (one crime is*773 included in the other where it is established by “proof of... a less culpable mental state”); OCGA § 16-1-6 (2) (one crime is included in the other where it differs only in that it involves a “less serious injury or risk of injury to the same person, property, or public interest or a lesser kind of culpability”); and OCGA § 16-1-7 (a) (2) (precluding multiple convictions where one crime differs from another “only in that one is defined to prohibit a designated kind of conduct generally and the other to prohibit a specific instance of such сonduct”). These other statutory provisions resolve potential gaps in the Blockburger “required evidence” analysis which otherwise might support multiple convictions for closely related offenses where multiple convictions are unwarranted.
Id. at 216, n. 32. Because the “required evidence” test only applies “where the same act or transaction constitutes a violation of two distinct statutory provisions” (id.), to the extent that Cooper v. State,
Indeed, the possibility for multiple punishment in the context of a high speed chase involving several police officers makes sense under OCGA § 40-6-395. Seo Marlowe, supra,
Concurrence Opinion
concurring.
Under our Constitution and legal tradition, judges are supposed to apply the law enacted by the legislature based on what a statute says, not based on whether the judges believe it “makes sense” to apply the statute to the case at hand or instead feel it would be “unfair” to do so. This Court’s decision in Heard v. State,
Deciding this case under Heard’s misbegotten approach, it “makes sense” and seems “fair” enough to me, and to thе other judges on this Court, that OCGA § 16-3-21 (b) (2) precluded Smith from claiming, or having the jury instructed, that the felony murder
OCGA § 16-3-21 (a) establishes one of this State’s justification defenses to criminal charges, allowing the use of forcе, sometimes even deadly force, in the defense of oneself and others. However, subsection (b) (2) of the statute then says, in plain English, that “[a] person is not justified in using force under the circumstances specified in subsection (a) . . . if he . . . [i]s attempting to commit, committing, or fleeing after the commission or attempted commission of a felony.” Reading this law, one would think that a defendant who was “committing ... a felony” when he used deadly force could not claim, or receive a jury instruction, on self-defense. And because the statute refers to “a felony,” excluding no type or class of felony, if in cоmmitting a felony the defendant used force to cause the death of another person, thereby committing a felony murder, see OCGA § 16-5-1 (c), the law would not allow him to claim self-defense.
In accordance with this plain statutory language, this Court repeatedly held before Heard that “[s]elf-defense is not a defense to felony murder.” Ely v. State,
The Heard majority did not base this assertion on any analysis of the statutory language or other canons of statutory construction, such as a need to avoid a constitutional violation. It simply held that statute would no longer apply “where there is sufficient evidence of a confrontation between the defendant and the victim, or other circumstances which ordinarily would support a charge on justification,” as may exist where the predicate felony is aggravated assault. Id. at 262-263. Henceforth, OCGA § 16-3-21 (b) (2) would apply only where judges decided that “it makes sense to do so, for example, to a burglar or robber who kills someone while fleeing.” Id. at 263. The majority found it particularly “unfair and illogical to deny a defendant the defense of justification against a felony murder charge merely because of his status as a convicted felon in possession of a firearm,” or, in what it deemed “a more dramatic, though analogous example,” to deny a defendant “a charge on self-defense if he happened to have 1.1 ounces of marijuana in his pocket when he killed someone while trying to defend himself.” Id. at 263, n. 3. Our contrary precedent was overruled. See id. at 263 (specifically overruling Hall and Ely).
The Heard majority’s view of when self-defense may be raised against a charge of felony murder is reasonable, perhaps even wise. Indeed, if I were a legislator drafting or voting on a self-defense statute, I might favor one that allows the defense to be raised in felony murder cases when the underlying felony is passive and incidental,
Of course, other policymakers might decide that felony murder liability should be imposed very broadly to deter and punish felonious conduct that proximately causes death, and thus to prohibit claims of self-defense even when, for example, a convicted felon
But whether the policy established by the Heard majority is good or bad is not the point, because it is not the policy established by the body that is constitutionally entitled to establish the laws of Georgia. See Ga. Const, of 1983, Art. Ill, Sec. VI, Par. I (“The General Assembly shall have the power to make all laws not inconsistent with this Constitution, and not repugnant to the Constitution of the United States, which it shall deem necessary and proper for the welfare of the state.”). If such laws are not unconstitutional, the obligation of this Court is to apply them, whether we like them or not. As Chief Justice Russell put it, in determining constitutional and other questions, “the courts are not permitted to concern themselves with the wisdom of an act, or to apply or obtrude the personal views of the judges as to such matters.” Shadrick v. Bledsoe,
Heard comes from an era in which this Court cut back on the scope of the felony murder statute in several ways inconsistent with its text, history, and precedent. See, e.g., Ford v. State,
It took almost 30 years for this Court to overrule our patently incorrect decision in Crane. For the reasons discussed above, if we are asked to overrule Heard, the request would require serious consideration.
I am authorized to state that Presiding Justice Carley and Justice Hines join in this concurrence.
Indeed, I think Smith’s Heard claim is easier to resolve than the majority opinion suggests. Smith does not only need to show error under Heard, he must show “plain error,” because he did not object to the jury charge at trial based on Heard’s interpretation of OCGA § 16-3-21 (b) (2), instead complaining only that the jury charge was unconstitutional, an issue he does not raise on appeal. See OCGA § 17-8-58 (b); State v. Kelly,
I use the term “passive” felony rather than “status” felony, a term that has been misused in Heard and other felony murder cases. See Shivers v. State,