Calloway v. State

• Decision Date: 05 February 2018
• Docket Number: S17A2019
• Parties: CALLOWAY v. The STATE.
• Court: Georgia Supreme Court

303 Ga. 48

810 S.E.2d 105

CALLOWAY

v.The STATE.

S17A2019

Supreme Court of Georgia.

Decided: February 5, 2018

Jennifer E. Hildeband, for appellant.

Herbert E. Franklin, Jr., District Attorney; Christopher M. Carr, Attorney General, Patricia B. Attaway Burton, Deputy Attorney General, Paula K. Smith, Senior Assistant Attorney General, Scott O. Teague, Assistant Attorney General, for appellee.

Peterson, Justice.

Suzzett Marie Calloway was convicted in a federal court of several crimes related to manufacturing methamphetamine. She then was convicted in a state court of felony murder predicated on manufacturing meth; the state charges arose from the same conduct as the federal charges.¹ Calloway argues that the State’s prosecution was barred by OCGA § 16-1-8 (c), which, in some instances, prohibits a successive prosecution when the accused was previously acquitted or convicted in federal court for the same conduct. Calloway also argues that the evidence was insufficient to support the jury’s verdicts and that the trial court erred in allowing the prosecutor to "read the law" to the jury during closing arguments.

We conclude that the evidence was sufficient to support the jury’s verdicts, but Calloway’s federal conviction for attempt to manufacture meth barred a successive prosecution for the state crime of felony murder predicated on manufacturing meth. We therefore reverse her felony murder conviction, which unmerges her other convictions. Of those unmerged convictions, all counts were barred except possession of meth with intent to distribute, and we remand to the trial court for resentencing on that count. Our reversal of Calloway’s felony murder conviction renders moot her argument about the prosecutor’s reading of the law on the issue of causation as an element of felony murder. Accordingly, affirm in part, reverse in part, and remand for resentencing.²

Viewed in the light most favorable to the verdict, the trial evidence showed the following. Calloway and her co-defendant husband, Chris Hicks,³ had two children, an infant named Chelton (the victim) and his older brother. Lance and Connie Rockholt were friends of the defendants and would frequently visit the defendants to smoke meth, which Hicks manufactured and supplied. Calloway routinely bought pseudoephedrine

tablets and other supplies that Hicks needed to manufacture meth. She and Hicks also sold meth to others, and Lance testified that equipment and ingredients used to make meth were located throughout the defendants’ home.

On the night of February 17, 2001, the Rockholts visited the defendants at their Catoosa County apartment. When the Rockholts arrived, Hicks was making meth in a back room, while Calloway was in the kitchen. Two men came to the apartment and asked Calloway a question, at which point she went to talk to Hicks and then returned to talk to the two men. The men then left the apartment, and Calloway returned to the kitchen.

At some point, Hicks came out of the back room holding what Lance called a "little flask of dope" and went into the kitchen. Hicks returned to the living room carrying a coffee pot containing a clear liquid and told Lance that he had "over gassed" or "over lit" his "dope." Hicks then retrieved a propane burner, set the burner on the coffee table, and began to heat the coffee pot on the burner. Vapors from the coffee pot caught fire and the liquid inside the pot erupted in a flame, melting the plastic handle held by Hicks. Hicks dropped the flaming coffee pot, igniting the living room.

Everyone but Chelton, who was asleep in a different room, escaped. Once outside, the group realized that Chelton was still inside the apartment, and they unsuccessfully tried placing a ladder next to Chelton’s bedroom several times before Hicks was able to enter the room and retrieve Chelton. By that point, Chelton had been severely burned. Calloway and Hicks took Chelton to the hospital, while the Rockholts left with the defendants’ other child. Chelton received numerous skin grafts and a tracheostomy tube

due to inhalation injuries from the fire, and he died in June 2001 when his airway became obstructed.

Following the fire, a state fire marshal investigator separately talked with Hicks and Calloway, who both reported that the fire started when a wall heater exploded and caught fire. Pursuant to consent given by Hicks, the investigator inspected the property but did not find any evidence to support the defendants’ claims about the cause of the fire. Instead, the investigator found burn patterns indicative of a "flash fire." He also found an electric heater that could not have exploded, which he ruled out as the cause of the fire. Police planned to arrest Calloway and Hicks for felony murder after Chelton’s funeral, but the police did not see Calloway and Hicks there.

In July 2001, Kentucky law enforcement received a tip that Calloway was purchasing large quantities of pseudoephedrine pills. Police officers followed Calloway as she left a store and conducted a traffic stop when she was seen driving erratically. During the stop, Calloway appeared to be under the influence of meth. Police officers searched her car and found numerous items to make meth, including over 200 pseudoephedrine pills.

In January 2002, Calloway was indicted in a federal district court for conspiracy to manufacture meth, attempt to manufacture meth, and creating a substantial risk of harm during the attempted manufacture of meth for the events that occurred in Catoosa County on February 17, 2001. Calloway was convicted of her federal charges in December 2002.⁴ Around the same time as the federal indictment was returned, a Catoosa County grand jury also returned a four-count indictment against Calloway, charging her with felony murder predicated on manufacturing meth and three drug offenses. In March 2003, Calloway pled guilty to the drug offenses and to involuntary manslaughter as a lesser included offense of felony murder. After she was allowed to withdraw her plea in June 2003, she was re-indicted in August 2003; the indictment included the same charges as before and another felony murder count predicated on attempting to manufacture meth. Calloway was tried and convicted of all counts except the felony murder count based on attempt to manufacture meth.

1. Calloway first argues that the jury’s verdict was without sufficient evidence to support it.⁵ She argues that there was no evidence she participated in the predicate felony of manufacturing meth, possessed meth, or attempted to distribute it. She argues that Hicks was the only person who participated in the making of meth and that he caused the fire. She acknowledges the evidence establishing that she bought pseudoephedrine pills, but argues that this occurred at times other than on the night of the fire.

When considering the sufficiency of the evidence, we apply the familiar standard set forth in Jackson v. Virginia, 443 U.S. 307, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979), in which we view the evidence in the light most favorable to the verdict and ask whether any rational trier of fact could have found the defendant guilty beyond a reasonable doubt. See Jones v. State, 292 Ga. 656, 657-658 (1) (a), 740 S.E.2d 590 (2013). A person who intentionally aids or abets the commission of the crime, or intentionally advises, encourages, hires, counsels, or procures another to commit the crime may be convicted of the crime as a party to the crime. OCGA § 16-2-20 (b) (3), (4). "Although mere presence at the scene of a crime is not sufficient to prove that one was a party to the crime, presence, companionship, and conduct before and after the offense are circumstances from which one’s participation in the criminal intent may be inferred." Powell v. State, 291 Ga. 743, 744-745 (1), 733 S.E.2d 294 (2012) (citation and punctuation omitted).

There is no dispute that Chelton’s death was caused by Hicks manufacturing of meth, and the evidence was sufficient for the jury to find that Calloway participated in the manufacture of meth. Lance testified that Calloway frequently bought materials that Hicks needed to make meth, including pseudoephedrine pills, a fact that Calloway does not dispute. Lance also testified that Calloway and Hicks possessed materials used to make meth and that many items used to make meth could be found throughout the defendants’ apartment. The Rockholts also testified that Hicks and Calloway supplied meth on the many occasions in which they smoked meth together, and

Lance testified that he saw Hicks and Calloway sell meth "quite a few times." Based on the foregoing, the evidence was more than sufficient to support the jury’s finding that Calloway was guilty of felony murder, manufacturing meth, possession of meth with intent to distribute, and simple possession.

2. Calloway next argues that the State was barred from prosecuting her under the statutory double jeopardy provisions of OCGA § 16-1-8 (c), because she already had been convicted of federal crimes stemming from the same conduct. We agree as to some of the state charges.

States are sovereigns separate from the federal government, and a state’s power to undertake criminal prosecutions is derived from its own inherent sovereignty. Heath v. Alabama, 474 U.S. 82, 89, 106 S.Ct. 433, 88 L.Ed.2d 387 (1985) ; see also Puerto Rico v. Sanchez Valle, ––– U.S. ––––, 136 S.Ct. 1863, 1871, 195 L.Ed.2d 179 (2016). Under the dual sovereignty doctrine, where a single act violates the law of two sovereigns (e.g., the United States and a state), an individual may be prosecuted and punished by each sovereign without violating double jeopardy. See Heath, 474 U.S. at 88, 106 S.Ct. 433 ; United States v. Lanza, 260 U.S. 377, 382, 43 S.Ct. 141, 67 L.Ed. 314 (1922). Under this doctrine, the State was not constitutionally barred from prosecuting Calloway merely because the federal government had already done so. See Heath, 474 U.S. at 88, 106 S.Ct. 433 ; Sullivan v. State, 279 Ga. 893, 894,...