Thompson v. StateThompson v. State
- Reporters:
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- Before:
- Hunstein
Lead Opinion
Christopher L. Thompson was found guilty of felony murder, burglary, possession of a firearm during the commission of a crime, and possession of a firearm by a convicted felon. He appeals from the denial of his motion for a new trial.1 For the reasons which follow, we reverse.
We categorically reject the position that the element of an unlawful entry mаy be established solely by proof that an accused had the intent to commit a theft or other felony within another’s premises. This is contrary to the plain language of the statute and would lead to the anomalous result that a person could be convicted of burglarizing a grocery store mеrely by entering the store with the intent to steal a food item therein. By instructing the jury it could find unauthorized entry based on the accused’s criminal intent, the challenged charge improperly eliminated the State’s obligation to prove the essential element of unauthorized entry beyond a reasonable doubt.
Contrary to the State’s argument, nothing in Bradshaw v. State, 172 Ga. App. 330 (2) (323 SE2d 253) (1984); Jackson v. State, 151 Ga. App. 596 (2) (260 SE2d 565) (1979); or Parrish v. State, 141 Ga. App. 631 (1) (234 SE2d 174) (1977) supports the giving of this charge. These cases stand for the principle that evidence of an accused’s unlawful entry into a building where valuable goods are stored may give rise to an inference of an intent to commit a theft therein, particularly where no other motive is aрparent for the entry. This inference is based on the recognition that intent is usually not easily susceptible of direct proof, Thomas v. State, 166 Ga. App. 650, 651 (1) (305 SE2d 182) (1983), but may “be manifested by the circumstances connected with the perpetration of the offense.” Mallette v. State, 119 Ga. App. 24, 27 (165 SE2d 870) (1969). Accord
The record reveals that the trial court did not subsequently сorrect the error or recharge the jury properly on this issue. Our review of the evidence adduced by the State on the burglary charge does not support the State’s contention that Thompson was not harmed by the error. See Division 2, infra. Accordingly, we hold that the trial court committed
2. We turn now to the sufficiency of the evidence to support the convictions. At trial the State adduced evidence from which the jury was authorized to find that Thompson, Adams and Ray drove to the home of Ricky Wyatt, a drug dealer whom Adams knew. The plan was that Adams would visit Wyatt, use some ruse to persuade him to leave his home, and then Adams would page Thompson so that he and Ray could enter Wyatt’s home and help Adams steal Wyatt’s money and drugs. Ray, armed with a Colt Python .357 revolver, and Thompson, armed with Ray’s .25 caliber semiautоmatic pistol, watched the home while Adams entered and remained in Wyatt’s home at his invitation. During their wait, Thompson heard a siren and, believing the police might be checking on the truck the trio had arrived in, returned to the vehicle. However, finding no police and no traffic ticket on the truck, Thompson walked back to Wyatt’s home in time to see the side door open and hear three shots being fired, with first Ray and then Adams fleeing from the direction of the house. Nothing was taken from the victim or his home. Although Thompson told police that he “knew” Ray had entered the home, in statements he made tо the police and as a witness for the State during the trial of Adams and Ray, Thompson consistently claimed that he did not personally see the actual shooting and that Ray had fled the scene before Thompson approached the house. The victim was found with his feet inside the side door аnd his body outside the house at the top of stairs leading to the door. He died from wounds inflicted by the .357 revolver subsequently recovered from Ray’s truck. The State also introduced a certified copy of Thompson’s first offender conviction for a Gordon County burglary.
We find the evidence adduced sufficient to enable a rational trier of fact to find Thompson guilty of felony murder, possession of a firearm during the commission of a felony, and possession of a firearm by a convicted felon beyond a reasonable doubt. Jackson v. Virginia, 443 U. S. 307 (99 SC 2781, 61 LE2d 560) (1979). However, we must conclude that the State failed to adduce sufficient evidence from which a jury could have convicted Thompson of burglary either directly or as a party to the crime. The evidence established that Thompson’s co-defendant Adams entered and remained in Wyatt’s house with Wyatt’s permission. See footnote 2, supra. Contrary to the State’s contention, our review of the evidence fails to reflect any documentary or testimonial evidence from which the jury could have reasonably found that Thompson’s co-defendant Ray made an unauthorized entry into Wyatt’s house even for the brief time leading up to the victim’s shooting. No reasonable trier of fact could have interpreted Thompson’s statement that he “knew” Ray had entered the home to mean that Thompson had personally observed Ray’s entrance therein so as to establish this necessary element of burglary. Therefore, we reverse the conviction and sentence entered on the burglary count. Accord Caldwell v. State, 183 Ga. App. 110 (1) (357 SE2d 845) (1987).
The record reveals that Thompson was charged in a single count with felony murder based on three underlying felonies: aggravated assault with a deadly weapon, aggravated assault with the intent to rob, and burglary. The jury returned a general verdict on the felony murder count without delineating which of the underlying felonies served as the predicate for the felony murder conviction. Accordingly, because the general verdict of guilty did not indicate which of the alternate theories the felony murder conviction was based upon, we must likewise set aside Thompson’s conviction for felony murder. Stromberg v. California, 283 U. S. 359 (51 SC 532, 75 LE 1117) (1931); Dunagan v. State, 269 Ga. 590 (3) (502 SE2d 726) (1998), overruled on other grounds, Parker v. State, 270 Ga. 256 (4) (507 SE2d 744) (1998); Crawford v. State, 254 Ga. 435 (1) (330 SE2d 567) (1985). Compare Lumpkins v. State, 264 Ga. 255 (443 SE2d 619) (1994). While Thompson’s conviction for possession of a firearm during the commission of a crime must also be reversed, we affirm Thompson’s conviction for possession of a firearm by a convicted felon as it is highly probable that the error in the charge discussed in Division
3. We find no error in the trial court’s admission of the sworn testimony Thompson gave during the trial of his co-defendants. The trial court found that Thompson testified at the earlier trial after knowingly and voluntarily waiving his Fifth Amendment right against self-incrimination. It is well-established that
[w]hat a witness voluntarily testified [to] at a former trial of another party for the homicide is not privileged on a trial of the witness himself for the same homicide. It may be given in evidence against him as an admission.
Burnett v. State, 87 Ga. 622, hn. 4 (13 SE 552) (1891). See Dawson v. State, 153 Ga. App. 130 (265 SE2d 74) (1980); McDowell v. State, 78 Ga. App. 487, hn. 1 (51 SE2d 546) (1949); Sheppard v. State, 68 Ga. App. 127 (22 SE2d 347) (1942). See also 23 CJS, Criminal Law, § 884.
Corthran v. State, 268 Ga. 443 (491 SE2d 66) (1997), relied upon by Thompson, is distinguishable in that it involved a videotaped statement given police by the accused pursuant to a negotiated plea agreement, rather than trial testimony given by a party who constitutionally waived his right against self-incrimination.
4. Based on the facts adduced at trial, we find no error in the trial court’s refusal to give Thompson’s requested charge on abandonment.
5. Thompson’s remaining enumeration, regarding the trial court’s alleged incomplete charge on parties to a crime, is unlikely to recur upon retrial.
Judgment affirmed in part and reversed in part.
All the Justices concur, except Carley, J., who concurs specially.Notes
The crimes occurred on December 5,1997. Thompson was originally indicted in Floyd Cоunty with two co-defendants, Paul Ray and LaShay Adams, and testified against the co-defendants pursuant to a guilty plea agreement with the State. Upon withdrawing his guilty plea, Thompson was reindicted July 10, 1998. A jury found him guilty on September 16, 1998 and two days later he was sentenced to life imprisonment for the murder, a concurrent twenty-year term for the burglary, and two five-year consecutive terms on the possession charges. His motion for new trial, filed October 15,1998, was denied November 17, 1998. A notice of appeal was filed December 17, 1998. The appeal was docketed December 31, 1998 and was orally argued Marсh 15,1998.
The Suggested Pattern Jury Instructions, Vol. II: Criminal Cases, 2d ed. (1991) sets forth the following charge on burglary: “A person commits the offense of burglary when, without authority, that person enters (or remains in) any building or dwelling house of another . . . with the intent to commit a theft.” Burglary can result when, with the requisite criminal intent, a person either еnters another’s premises without authority (such as by breaking through the door or entering a window) or the person enters the premises with authority then remains on the premises after that authority has been revoked (such as entering a store open to the public for business, but remaining hidden inside when business hours are over).
Concurrence Opinion
concurring specially.
I concur in Division 1, wherein the majority concludes that the trial court erred in its recharge on unauthorized entry as an essential element of the crime of burglary. Because the jury returned a general verdict on the felony murder count, the erroneous recharge requires reversal of Thompson’s convictions for that offense, as well as reversal of his convictions for the separate offenses of burglary and possession of a firearm during the commission of a crime. Dunagan v. State, 269 Ga. 590, 594 (3) (502 SE2d 726) (1998). In Division 2, however, the majority further holds that the evidence was not sufficient to authorize Thompson’s conviction for burglary. As a consequence, the State сannot retry him either for burglary or for felony murder with burglary as the predicate offense. Priest v. State, 265 Ga. 399 (1) (456 SE2d 503) (1995). I do not agree with this holding, because the evidence of Thompson’s guilt for the burglary offense satisfies the standard of Jackson v. Virginia, 443 U. S. 307 (99 SC 2781, 61 LE2d 560) (1979). I also concur in Divisions 3, 4 and 5, of the Court’s opinion. Thus, I concur in the affirmance of Thompson’s conviction for possession of a firearm by a convicted felon, and in the reversal of his convictions for felony murder, burglary and possession of a firearm during the commission of a crime. However, I believe that the State may retry Thompson for all three of the latter offenses as originаlly alleged in the indictment.
The majority finds the theory that Thompson was a party to the crime of burglary inapplicable, because there is no evidence that the co-defendant Ray made an unauthorized entry into the victim’s house “even for the brief time leading up to the victim’s shooting.” (Majority opinion p. 108.) Even assuming this to be a correct assessment of the transcript, there nevertheless is evidence that Ray did enter the victim’s home without authority. In his statement, Thompson told officers that “I know that Ray stepped at least into the doorway” after the shooting. Although this statement would not be admissible against Ray, it is admissible against Thompson himself. “Any references in [his] statement regarding what transpired shortly before, during, or shortly after the murder would be admissible as res gestae evidence. [Cit.]” Garcia v. State, 267 Ga. 257, 258 (4) (477 SE2d 112) (1996). See also Johnson v. State, 264 Ga. 456, 457 (1) (448 SE2d 177)