Carter v. State, A14A1741.

• Decision Date: 17 March 2015
• Docket Number: No. A14A1741.,A14A1741.
• Parties: CARTER v. The STATE.
• Court: Georgia Court of Appeals

331 Ga.App. 212

770 S.E.2d 295

CARTER

v.The STATE.

No. A14A1741.

Court of Appeals of Georgia.

March 17, 2015.

Certiorari Granted Oct. 5, 2015.

Charles Henry Frier, Smyrna, for Appellant.

Paul L. Howard Jr., Dist. Atty., David K. Getachew–Smith, Asst. Dist. Atty., for Appellee.

Opinion

BARNES, Presiding Judge.

In November 2003, a Fulton County jury convicted Chenard Carter of possession of a firearm during the commission of a crime and multiple counts of voluntary manslaughter and aggravated assault. The trial court sentenced him to serve a total of 25 years. After a lengthy delay, this appeal followed, in which Carter argues that the trial court erred in sentencing him for voluntary manslaughter on a repugnant verdict because the jury returned both not guilty and guilty verdicts on voluntary manslaughter. He also contends that his trial counsel was ineffective for failing to object to the repugnant verdict and improper sentence. Because the verdict is not legally repugnant and Carter's trial counsel was not ineffective, we affirm the judgment of conviction and sentence.

1. After the jury rendered its verdict in November 2003, newly-appointed counsel filed a timely motion for new trial. He amended it in October 2004, and the trial court denied the motion in December 2004. In September 2007, the State moved the trial court to appoint an appellate attorney for Carter, which the court did in February 2011. After the trial court granted Carter's motion for an out-of-time appeal in October 2013, Carter filed another amended motion for new trial, which the court denied in February 2014, and he subsequently filed this appeal.

The delay of more than 11 years between the verdict and this court's review

put[s] at risk the rights of defendants and crime victims and the validity of convictions obtained after a full trial. We therefore reiterate that it is the duty of all those involved in the criminal justice system, including trial courts and prosecutors as well as defense counsel and defendants, to ensure that the appropriate post-conviction motions are filed, litigated, and decided without unnecessary delay.

Shank v. State, 290 Ga. 844, 849(5)(c), 725 S.E.2d 246 (2012). The failure to discharge that duty in this case does not affect the outcome of this appeal, however, because Carter has enumerated no error associated with this delay. Morgan v. State, 290 Ga. 788, 789, n. 2, 725 S.E.2d 255 (2012).¹

2. Viewed in the light most favorable to the verdict, Francis v. State, 296 Ga. 190, 191, 766 S.E.2d 52 (2014), the evidence at trial revealed that the victim was lying down in her bedroom when a bullet from a “very high velocity military[-]type weapon, [an] assault rifle” such as an AK-47, pierced the outer wall of her apartment, continued through her bedroom wall, and penetrated her abdomen. She died 30 days later as a result of the gunshot wound

. In a complicated 14–count indictment, the State charged Carter and two other men with malice murder, felony murder, aggravated assault, and firearms offenses, contending that the men were shooting at each other outside of the victim's apartment when a bullet from one of their weapons struck the victim and caused her death.

Carter was charged with one count of malice murder for shooting the victim and three counts of felony murder for causing the death of the victim while committing the underlying felony of aggravated assault on the victim, aggravated assault on his co-defendant Smith, and aggravated assault on his co-defendant Nesmith. He was similarly charged with three counts of aggravated assault against the victim, against Smith, and against Nesmith, and with possession of a firearm during the commission of a crime.

After both parties rested, the trial court and the parties held an unreported charge conference. The record contains a copy of Carter's requests to charge, which includes charges on voluntary manslaughter and provocation. During their closing arguments, neither Carter nor the State discussed the issue of voluntary manslaughter as a lesser included offense of either malice or felony murder, although the State separately addressed each of the murder counts. After closing arguments, the trial court asked the parties outside of the jury's presence if they had any objection to a charge on voluntary manslaughter, because the court thought it could be a lesser included offense of any of the murder counts. The State responded that it thought the court should instruct the jury that if it convicted Carter of voluntary manslaughter as a lesser included offense of malice murder, then it should not continue with its deliberations as to the felony murder counts, alluding to Edge v. State, 261 Ga. 865(2), 414 S.E.2d 463 (1992).²

After further colloquy, the court decided to charge the jury that before it was authorized to return a verdict of guilty to malice murder or felony murder, it must first determine if mitigating evidence would cause either offense to be reduced to voluntary manslaughter. After charging the jury on the elements of malice murder, the court gave the following charge on voluntary manslaughter:

Ladies and gentlemen, a lesser offense of murder is voluntary manslaughter. And you would be authorized to consider this count along with the other counts in the indictment. Voluntary manslaughter reads as follows: after consideration of all of the evidence[,] before you would be authorized to return a verdict of guilty of malice or felony murder, you must first determine whether mitigating evidence, if any, would cause the offense to be reduced to voluntary manslaughter.

A person commits voluntary manslaughter when that person causes the death of another human being under circumstances which would otherwise be murder if that person acts solely as the result of a sudden, violent, and irresistible passion resulting from serious provocation sufficient to excite such passion in a reasonable person. And in that connection I charge you the burden of proof is upon the State to prove beyond a reasonable doubt that the offense is not so mitigated.

Provocation by words alone will in no case justify such excitement of passion sufficient to free the accused from the crime of murder or to reduce the offense to manslaughter when the killing is done solely in resentment of such provoking words. Words accompanied by menaces, though the menaces do not amount to an actual assault, may in some instances be sufficient provocation to excite a sudden, violent, and irresistible passion in a reasonable person. And if a person acts from such passion and not from malice or any spirit of revenge, then such would constitute voluntary manslaughter. In all cases the motive is for determination by the jury.

The court did not repeat the voluntary manslaughter charge after it charged the jury on the elements of felony murder, but when explaining how to complete the verdict form after the jury had considered the evidence and the law, the court said:

The verdict form as to Count One is [“]We, the jury, find the defendant [‘]blank[’] of murder.[”] And in that spot you would be authorized to return a verdict of guilty or not guilty based upon your determination. If you find that he is not guilty of murder, you would concurrently be able to and authorized based upon the evidence coupled with the law to find the defendant guilty or not guilty of voluntary manslaughter. And the same holds true for the felony murder counts. And each one has an additional option as to the voluntary manslaughter.

Carter reserved his objections to the charge, which was permissible in 2003 when this case was tried. See OCGA § 17–8–58(b) (failure to object to charge in trials after July 1, 2007, precludes appellate review other than for plain error).

After deliberating for a time, the jury returned with several questions, and after further deliberation, the foreperson announced that the jury was deadlocked on the malice and felony murder charges. The trial court gave an Allen charge, and the jury returned 50 minutes later with the following verdict:

Count 1, malice murder, not guilty; voluntary manslaughter, not guilty.

Count 2, felony murder, not guilty; voluntary manslaughter, guilty.

Count 3, felony murder, not guilty; voluntary manslaughter, guilty.

Count 5, felony murder, not guilty; voluntary manslaughter, guilty.

Counts 6, 7, and 8, aggravated assault, guilty.

Count 14, possession of a firearm during the commission of a crime, guilty.

The trial court merged the three voluntary manslaughter convictions and the conviction for aggravated assault of the victim and sentenced Carter to serve a total of 25 years.

Although Carter specifically does not challenge the sufficiency of the evidence, we find that the evidence as summarized above was sufficient to enable a rational trier of fact to conclude beyond a reasonable doubt that he was guilty of the crimes of which he was convicted. Jackson v. Virginia, 443 U.S. 307, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979).

3. Carter argues on appeal that the verdict is repugnant and mutually exclusive, because the jury found him both not guilty and guilty of the same offense, voluntary manslaughter, thus raising double jeopardy concerns. He concedes that Georgia abolished the “inconsistent verdict” rule in Milam v. State, 255 Ga. 560, 562(2), 341 S.E.2d 216 (1986), in which our Supreme Court affirmed a verdict of guilty but mentally ill of the malice murder of one victim but not guilty by reason of insanity of the malice murder of a second victim that occurred very shortly after the first. In reaching this conclusion, the court in Milam simply said that it adopted the reasoning set forth in United States v. Powell, 469 U.S. 57, 105 S.Ct. 471, 83 L.Ed.2d 461 (1984).

In Powell, a jury acquitted the defendant of both conspiring to possess cocaine with the intent to distribute it and of possessing cocaine with the intent to distribute it, but convicted her of three counts of using the telephone to commit and facilitate conspiracy...