VAN v. THE STATE
S13A1780
Supreme Court of Georgia
DECIDED JANUARY 27, 2014
754 SE2d 355
The 2003 disposition of the property in dispute in this case is not governed by these 2006 changes to the law governing eminent domain. We conclude that at the time of the 2003 conveyance to Southeastern Maintenance, the City of Alma and Bacon County were not required to formulate an economic development plan for an alternative use of the property originally acquired by condemnation thirty years earlier. See Talley, supra. Further, the conveyance in this case was made for what appears to have been a proper public purpose at that time. We reject the Carter heirs’ assertion that it was a one-to-one transfer of property interests for a private and not a public purpose which violates the Fifth Amendment.7 Consequently, we reverse the trial court‘s holding that the 2003 conveyance to Southeastern Maintenance was invalid.
For these reasons, the trial court‘s order granting summary judgment to the Carter heirs is reversed, and the decree establishing title is vacated.
Judgment reversed in part and vacated in part. All the Justices concur, except Hunstein and Nahmias, JJ., who concur in judgment only as to Division 2.
DECIDED JANUARY 27, 2014.
Hunter, Maclean, Exley & Dunn, Robert B. Lovett, Heather N. Hammonds, for appellant.
Smith, Ramay & Bennett, Ken W. Smith, for appellees.
MELTON, Justice.
Following a jury trial, Tony Van was found guilty of murder, felony murder, aggravated assault, and two counts of possession of a firearm during the commission of a crime.1 Van now appeals, contending that the trial court gave the jury coercive instructions
1. In the light most favorable to the verdict, the record shows that, on September 18, 2010, Van drove Jonathan Pring and Robert Keovongsa to a Citgo to play video slot machines. Pring kept losing, and he asked Van for money. Van got angry, because Pring already owed him a prior debt. Van decided to take everyone home at that point, and took Pring to a QuikTrip to drop him off. Pring refused to get out of the car, so Van drove to Keovongsa‘s home, arguing with Pring the entire way. Pring began yelling, “We can do this right here. We can do this right here. We can get out of the car, I‘m going to slice your throat, I‘m not going to get out right now.” Despite these statements, Pring did not have a weapon. Van stopped his car near Keovongsa‘s house, got out, grabbed a gun, loaded it, and shot Pring in the chest. Pring put his hands up, stating, “I‘m sorry, I‘m sorry.” Pring died from his gunshot wound. Later, after being arrested, Van led police to a drainage ditch where he had thrown the murder weapon. The bullet taken from Pring‘s body matched the recovered weapon. From jail, Van wrote a number of letters to Keovongsa, telling him how to testify. The letters contained an admission to the shooting.
This evidence was sufficient to enable the jury to find Van guilty of the crimes for which he was convicted beyond a reasonable doubt. Jackson v. Virginia, 443 U. S. 307 (99 SCt 2781, 61 LE2d 560) (1979).
2. Van contends that the trial court erred by giving the jury coercive instructions which favored his conviction, both during the main charge and a subsequent re-charge, regarding the completion of the verdict form. We disagree.
The record shows that, in the main charge, the trial court fully and correctly instructed the jury on the presumption of innocence, the burden of proof, and the definitions of all crimes involved. Thereafter, with regard to completing the verdict form, the trial court instructed: “[I]f you find and believe beyond a reasonable doubt . . . that the defendant is guilty of murder with malice aforethought, then you
As an initial matter, the record shows that Van never objected to the trial court‘s charge. Where no objection is made to a jury charge at trial, “appellate review for plain error is required whenever an appealing party properly asserts an error in jury instructions.” (Footnote omitted.) State v. Kelly, 290 Ga. 29, 32 (1) (718 SE2d 232) (2011).
The “plain error” test adopted by this Court in [Kelly] authorizes reversal of a conviction if the instruction was erroneous, the error was obvious, the instruction likely affected the outcome of the proceedings, and the error seriously affected the fairness, integrity or public reputation of judicial proceedings.
(Citation omitted.) Smith v. State, 292 Ga. 316, 319 (3) (737 SE2d 677) (2013).
There was no plain error in this case, as the instruction was not erroneous. Nothing in the trial court‘s instructions regarding the manner in which the jury was to complete the verdict form mandated a conviction in any way. Ultimately, the instructions merely required the jurors to put in writing whatever verdict they reached, guilty or not. In any event, prior to the instructions about which Van complains, the trial court clearly and accurately instructed the jurors regarding Van‘s presumption of innocence, the State‘s burden of proof, and the duty to acquit if reasonable doubt existed. Considered as a whole, the jury instructions, including the re-charge, were not erroneous. See Hambrick v. State, 256 Ga. 688 (3) (353 SE2d 177) (1987).
3. As the jury instructions were not erroneous, Van‘s contention that his trial counsel rendered ineffective assistance by failing to object to the instructions lacks merit. See Hayes v. State, 262 Ga. 881 (3) (c) (426 SE2d 886) (1993) (failure to make a meritless objection cannot be evidence of ineffective assistance).
With regard to pre-printed jury forms, we have opined:
We conclude that the use of a jury verdict form preprinted with the words “Guilty” and “Not Guilty” does not constitute error unless the form would mislead jurors of reasonable understanding, or the trial court erroneously instructed the jury on the presumption of innocence, the State‘s burden of proof, the possible verdicts that could be returned, or how the verdict should be entered on the printed form. In and of itself, merely listing the possible guilty verdict option(s) before the “Not Guilty” option does not render the verdict form misleading so as to constitute reversible error. See Harris v. State, 202 Ga. App. 618 (5) (414 SE2d 919) (1992).
Rucker v. State, 270 Ga. 431, 435 (5) (510 SE2d 816) (1999). The same concept holds true here. As discussed previously, the trial court properly instructed the jurors on the presumption of innocence, the State‘s burden of proof, and the possible verdicts that could be returned. Merely listing the offenses on the verdict form in the order of malice murder, felony murder, and voluntary manslaughter did not constitute reversible error. Id.
Judgment affirmed. All the Justices concur.
DECIDED JANUARY 27, 2014.
Lloyd J. Matthews, for appellant.
Tracy Graham-Lawson, District Attorney, Frances C. Kuo, Deah B. Warren, Erman J. Tanjuatco, Assistant District Attorneys, Samuel S. Olens, Attorney General, Patricia B. Attaway Burton, Deputy Attorney General, Paula K. Smith, Senior Assistant Attorney General, Meghan H. Hills, Assistant Attorney General, for appellee.