Taylor v. State

Citation262 Ga. 584,422 S.E.2d 430
Decision Date05 November 1992
Docket NumberNo. S92A0940,S92A0940
PartiesTAYLOR v. The STATE.
CourtSupreme Court of Georgia

Russell Gabriel, University of Georgia Legal Aid Clinic, Athens, for Taylor.

Harry N. Gordon, Dist. Atty., Gerald W. Brown, Bradley McClung, Asst. Dist. Attys., Athens, Michael J. Bowers, Atty. Gen., Susan V. Boleyn, Sr. Asst. Atty. Gen., Dept. of Law, Robert D. McCullers, Staff Atty., Atlanta, for the State.

BENHAM, Justice.

Appellant was convicted of felony murder for the stabbing death of the victim. 1 The evidence at trial showed that appellant and the victim, after a day of drinking alcohol and using drugs, argued and fought. Part of the fight was witnessed by a police officer and parts of it were witnessed by others. At the conclusion, when the police officer required the combatants to separate, the victim collapsed. His subsequent death after arriving at the hospital was caused by a single stab wound to the abdomen. A knife which a pathologist testified was consistent with the victim's fatal wound was found at the scene and appellant's girlfriend gave police officers an identical knife from the apartment she shared with appellant. Appellant fled the scene of the stabbing, explaining later that his flight was due to his possession of drug paraphernalia. At trial, he testified that he and the victim had argued about drugs and money, that he had hit the victim when the victim tried to take money from him, and that the victim then pulled out a knife which, in the ensuing struggle, must have been pushed into the victim.

1. Although much of the evidence was circumstantial, it was sufficient to authorize a rational trier of fact to find appellant guilty beyond a reasonable doubt of felony murder. Hardy v. State, 258 Ga. 635, 373 S.E.2d 361 (1988); Jackson v. Virginia, 443 U.S. 307, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979).

2. In one enumeration of error, appellant complains of two elements of the trial court's charge regarding felony murder:

If it should be proved to you to the extent required by law that the defendant, unintentionally and without malice, caused the death of the alleged victim while in the commission of the crime of Aggravated Assault with a deadly weapon, then you would be under the duty to find the Defendant guilty of Felony Murder.

a. Appellant first contends that the charge relieves the jury of the necessity of finding malice in the underlying felony, permitting the jury to convict without finding an intent to commit the aggravated assault. We disagree. It is clear that the phrase "unintentionally and without malice" refers not to the aggravated assault, but to the killing. The charge in this case is more clear than that considered in Holliman v. State, 257 Ga. 209(1), 356 S.E.2d 886 (1987), and we find, as we did in Holliman, that no substantial confusion was created by the charge.

b. Appellant next contends that the trial court's use of the word "duty" in the charge prevented the jury from considering the question of provocation. We do not find the charge to produce such an effect.

In Sutton v. State, 262 Ga. 181, 415 S.E.2d 627 (1992), we suggested that it would be better practice to use the charge in the current edition of the Suggested Pattern Jury Instructions, Vol. II: Criminal Cases (2d ed. 1991), but found no error in the charge as given. That holding applies here as well, and we find no merit in appellant's suggestion that the combination of that word with the charge discussed in the first part of this division deprived appellant of meaningful jury consideration of whether the homicide was the result of provocation. The trial court gave a correct charge on voluntary manslaughter and on provocation and we find no ground for reversal in the jury charge.

3. In charging on the included offense of voluntary manslaughter, the trial court directed a sequential consideration:

In the event you should find that the State has not proved the Defendant guilty of the crime of Felony Murder to the extent required by law, you would go further and determine whether or not the State has proved the Defendant guilty of the lesser included offense of Voluntary Manslaughter to the extent required by law.

Appellant correctly asserts that this is essentially the same charge we disapproved in Edge v. State, 261 Ga. 865(2), 414 S.E.2d 463 (1992), and insists that the giving of the charge entitles him to a new trial. The State's response is that Edge does not apply here because the trial in this case took place five months before our decision in Edge. We must decide, therefore, whether the holding in Edge disapproving of the sequential charge is to be applied retroactively.

In deciding this issue, we have been strongly influenced by considerations of fairness and the even-handed administration of justice. In order to ensure that similarly situated defendants are treated similarly and to maintain the integrity of the judicial process while still providing finality, we deem it appropriate to adopt the "pipeline" approach, that is, that a new rule of criminal procedure (here, the disapproval of the sequential jury charge on murder and manslaughter) will be applied to all cases then on direct review or not yet final. 2 Accord, Griffith v. Kentucky, 479 U.S. 314, 107 S.Ct. 708, 93 L.Ed.2d 649 (1987). Application of the new rule to a pending case will, of course, depend on the preservation of the issue for appellate review, which was accomplished in the present case by appellant's reservation of the right to raise objections to the jury charge on appeal. See White v. State, 243 Ga. 250, 253 S.E.2d 694 (1979).

Adoption of the rule stated above results in the application of Edge to the present case, which in turn leads to the conclusion that the sequential charge given in the present case requires that appellant be given a new trial.

Judgment reversed.

CLARKE,...

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