Borders v. State
| Court | Supreme Court of Georgia |
| Citation | 514 S.E.2d 14,270 Ga. 804 |
| Docket Number | No. S98A1581., No. S98A1579 |
| Parties | BORDERS v. The STATE. White v. The State. |
| Decision Date | 08 March 1999 |
514 S.E.2d 14
270 Ga. 804
v.
The STATE.
White
v.
The State
Nos. S98A1579, S98A1581.
Supreme Court of Georgia.
March 8, 1999.
Reconsideration Denied April 2, 1999.
Michael D. Reynolds, Columbus, for Isaac Borders.
John Gray Conger, Dist. Atty., Alonza Whitaker, Neal Joseph Callahan, Asst. Dist. Attys., Columbus, Thurbert E. Baker, Atty. Gen., H. Maddox Kilgore, Asst. Atty. Gen., Paula K. Smith, Senior Asst. Atty. Gen., Department of Law, Atlanta, for the State.
BENHAM, Chief Justice.
Appellants Herbert White and Isaac Borders and three others were named in an indictment charging them with malice murder and felony murder, with the underlying felony being aggravated assault, [270 Ga. 805] in connection with the death of Kevin Smith. White and Borders were tried together, and two of their co-indictees (one having been acquitted in an earlier trial and the other given prosecutorial immunity) testified against them. White and Borders were convicted of felony murder and sentenced to life imprisonment.1
The State presented evidence that Borders saw the victim with a bicycle on a Columbus street and approached him, asking for money Borders believed Smith owed him. Borders told Smith not to come back into the area without the money or Borders would beat him. Smith left and returned without the money. Borders punched Smith, and other persons present began kicking and punching Smith. Paramedics found the victim without a pulse and not breathing, and rushed him to a hospital where a heartbeat was re-established and the victim was placed on life-support machinery. He died three days later, with the cause of death being blunt-force trauma to the head.
A man replacing a car battery near the site of the fatal beating identified Borders as the person who slammed Smith's head into the ground during the group confrontation. Both Borders and White made statements to police which were admitted into evidence: Borders admitted striking the victim one time; White admitted being present and hearing the verbal dispute over money, but denied ever touching the victim. Each of the two co-indictees who testified stated that Borders struck the victim repeatedly with his fists and feet, and that White had been an active participant in the fight and had struck the victim several times.
1. Both Borders and White contend that the trial court erroneously denied their motion2 to quash the count of the indictment which charged them with felony murder. That count read as follows:
And the GRAND JURORS ... further charge [appellants] ... with the offense of FELONY MURDER for that said accused,... on the 11th day of February, 1997, did then and there unlawfully while in the commission of a felony, to wit: Aggravated Assault, cause the death of [the victim], a [270 Ga. 806] human being, by beating [the victim] about the body causing him to fall and strike his head and by beating and kicking him about the head and body, contrary to the laws of said State....
While the indictment contained another count charging appellants with the malice murder of the victim, it did not contain a count charging appellants with the aggravated
In McCrary v. State, 252 Ga. 521, 524, 314 S.E.2d 662 (1984), this Court ruled that due process of law requires that an indictment "put the defendant on notice of the crimes with which he is charged and against which he must defend." An indictment apprises a defendant that he may be convicted of the crime named in the indictment, of a crime included as a matter of law in the crime named, and of a crime established by the facts alleged in the indictment regarding how the crime named was committed. Id. An indictment is void if it fails to charge a necessary element of the crime. State v. Eubanks, 239 Ga. 483, 486, 238 S.E.2d 38 (1977). See also DeFrancis v. Manning, 246 Ga. 307, 271 S.E.2d 209 (1980), where this Court held that due process of law requires that the indictment on which a defendant is convicted contain all the essential elements of the crime.
The issue for resolution is the specificity a felony murder indictment must have to withstand a due process challenge. Is it sufficient, as the State maintains, that the felony murder indictment allege only the statutory elements of felony murder, i.e., that the defendant caused the death of another human being while in the commission of [270 Ga. 807] a felony?3 Or, as appellants claim, where the underlying felony may be committed in several ways and is not the basis of a separate count of the indictment, must the manner in which the underlying felony was allegedly committed be set forth in the felony murder count of the indictment?
We need not decide today whether the felony murder indictment was adequate to put appellant on notice that he might be convicted of felony murder because the malice murder indictment sufficiently apprised appellant of that possibility. "This court on numerous occasions has held that a defendant may be convicted of felony murder under an indictment for malice murder where the underlying felony used to support the felony murder conviction is set forth in a separate count of the indictment or where the defendant is put on notice of the felony by the facts alleged in the indictment to show how the murder was committed." Dunn v. State, 263 Ga. 343(2), ...
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Reed v. State, S12A0443.
...to cause serious bodily injury when used offensively. Morgan v. State, 275 Ga. 222, 226–227(9), 564 S.E.2d 192 (2002); Borders v. State, 270 Ga. 804, 807–808(1), 514 S.E.2d 14 (1999). Compare Smith v. Hardrick, 266 Ga. 54, 55–56(3), 464 S.E.2d 198 (1995) (a non-homicide case where the indic......
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Morgan v. State, S02A0739.
...is put on notice of the felony by the facts alleged in the indictment to show how the murder was committed." [Cit.] Borders v. State, 270 Ga. 804, 807(1), 514 S.E.2d 14 (1999). We have frequently held that a malice murder indictment gives a defendant sufficient notice that he is accused of ......
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Carruthers v. State, S99P1418.
...Ledford v. State, 264 Ga. 60, 67(18), 439 S.E.2d 917 (1994); Todd v. State, 261 Ga. at 766(2), 410 S.E.2d 725. 35. See Borders v. State, 270 Ga. 804, 807(1), 514 S.E.2d 14 (1999); Franklin v. State, 268 Ga. 865, 867(2), 494 S.E.2d 327 (1998); see also Dunn v. State, 263 Ga. 343, 344(2), 434......
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State v. Wilson, A12A1122.
...disregard for the safety of persons or property.” Consequently, the indictment charged no crime and was void.); cf. Borders v. State, 270 Ga. 804, 806–808(1), 514 S.E.2d 14 (1999) (The indictment charged the defendants with committing felony murder and malice murder by causing the death of ......