Coleman v. State

• Decision Date: 09 November 2009
• Docket Number: No. S09A1922.,No. S09A1144.
• Citation: 286 Ga. 291,687 S.E.2d 427
• Parties: COLEMAN v. The STATE. Jackson v. The State.
• Court: Georgia Supreme Court

687 S.E.2d 427

286 Ga. 291

COLEMAN v. The STATE.

Jackson v. The State.

No. S09A1144.

No. S09A1922.

Supreme Court of Georgia.

November 9, 2009.

Reconsideration Denied December 15, 2009.

Garland, Samuel & Loeb, William C. Lea, Atlanta, for appellant (case no. S09A1144).

William J. Mason, Columbus, for appellant(case no. S09A1922).

Julia F. Slater, District Attorney, Kristy W. Dugan, Assistant District Attorney, Thurbert E. Baker, Attorney General, Christopher R. Johnson, Assistant Attorney General, for appellee.

BENHAM, Justice.

Joseph Pernice and Sang Duk Lee suffered fatal gunshot wounds in Muscogee County in 2003. Appellant Farnsworth Coleman, Jr., was convicted of and sentenced for the malice murder and aggravated assault of Pernice, as well as possession of a firearm during the commission of a crime and two violations of the Georgia Controlled Substances Act. Coleman was acquitted of the murder and aggravated assault of Sang Duk Lee. Appellant Anthony Jackson was convicted of and sentenced for the malice murder and aggravated assault of Sang Duk Lee, possession of a firearm during the commission of a crime, and two violations of the Georgia Controlled Substances Act.¹ Jackson was acquitted of the murder and aggravated assault of Pernice. Each defendant filed an appeal in this Court.

1. Joseph Pernice and Sang Duk Lee were shot to death near gasoline pumps at a Muscogee County service station. It is undisputed that the shooters were Coleman and Jackson. A firearms examiner from the State Crime Lab testified that the bullets removed from Pernice were fired from a .45 caliber pistol, and the bullets removed from Sang Duk Lee were fired from a 9mm weapon. A motorist passing by the station identified appellant Coleman as the man she saw shoot Pernice in the back as Pernice ran away from the shooter. The witness testified that when Pernice fell to the ground after being shot in the back, the shooter turned away as if to get in a nearby Jeep Cherokee, but then turned back toward the victim and fired one or two more shots at the prone victim. The forensic pathologist who performed the autopsies of the two victims testified that Pernice suffered six gunshot wounds, including one to the middle of his back that severed his spinal cord and caused immediate loss of leg function, one to the victim's back left thigh which entered the victim's body at an angle consistent with the victim having been shot while lying face down, and one that entered the left side of the victim's head, fractured his skull, and traveled to the right side of the victim's head.

A soft-drink deliveryman saw a man meeting appellant Jackson's description shoot Sang Duk Lee from a distance of ten feet as the victim stood near the driver's door of a nearby white sportscar and the shooter stood behind a Jeep Cherokee. The medical examiner testified that Sang Duk Lee was struck by three bullets and had 1.5 quarts of blood in his chest cavity at the time of autopsy. A shot fired when the gun was in contact with the victim's skin entered and exited his left arm and entered his left abdomen and exited the victim's body through his back; another shot, fired when the victim was 2"-36" from the gun, entered the front of the victim's left shoulder and caused internal bleeding by injuring the aorta and left pulmonary artery, and injured both lungs. Another shot, fired when the gun and the victim were separated by more than 18", entered the victim's lower left back, passed through his abdomen, and lodged in his intestines. No weapon was found near either of the two victims.

Appellants left the scene in Coleman's Jeep Cherokee. They stopped at an apartment complex in Alabama where they visited with friends and family of Coleman. They then left and headed further into Alabama. Their vehicle was spotted eight-ten miles from the Georgia-Alabama border by an Alabama deputy sheriff who gave chase, causing the driver of the Jeep Cherokee to pull off the road and the occupants to abandon the vehicle. They fled into nearby wooded marshland where they were apprehended by members of several Alabama canine units. A hand-rolled marijuana cigarette and a pipe which tested positive for the presence of methamphetamine were discovered in a search of the Jeep Cherokee.

The evidence was sufficient to authorize a rational trier of fact to conclude beyond a reasonable doubt that appellants were guilty of malice murder, aggravated assault, and possession of a firearm during the commission of a crime. Jackson v. Virginia, 443 U.S. 307, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979).

2. Both appellants challenge the sufficiency of the evidence of venue with regard to the convictions for possession of methamphetamine and of the less than an ounce of marijuana that were discovered in a search of Coleman's impounded Jeep Cherokee conducted in Muscogee County pursuant to a warrant after the vehicle was recovered from Lee County, Alabama, where appellants had abandoned it.

The Georgia Constitution states that "all criminal cases shall be tried in the county where the crime was committed." Ga. Const. of 1983, Art. VI, Sec. II, Par. VI. See also OCGA § 17-2-2.

Venue is a jurisdictional fact, and is an essential element in proving that one is guilty of the crime charged. "Like every other material allegation of an indictment, venue must be proved [by the prosecution] beyond a reasonable doubt." [Cit.]. Proof of venue is a part of the State's case, and the State's failure to prove venue beyond a reasonable doubt renders the verdict contrary to law, without a sufficient evidentiary basis, and warrants reversal.

Jones v. State, 272 Ga. 900, 901-902, 537 S.E.2d 80 (2000).

(a) In its case-in-chief, the State presented no evidence that the methamphetamine residue and the marijuana found in the vehicle appellants abandoned in Lee County, Alabama, were in the possession of appellants while they were in Muscogee County. However, on cross-examination, Coleman admitted he had hand-rolled the marijuana cigarette found in the Jeep Cherokee the morning of the shooting. That testimony, coupled with the undisputed fact that appellants and the Jeep Cherokee were at the Muscogee County service station at a time following the point at which Coleman admitted having made the cigarette, established beyond a reasonable doubt that appellants possessed the marijuana cigarette in Muscogee County and established venue for that crime as being in Muscogee County.

(b) There was no direct evidence of possession in Muscogee County of the pipe upon which traces of methamphetamine were found, and neither appellant made an admission concerning the pipe as Coleman did with regard to the marijuana. Both appellants testified they went to an apartment complex in Alabama immediately after the shootings and visited two apartments there. They then decided to drive to the Alabama home of Coleman's parents, but they were spotted by the Alabama deputy sheriff before they could arrive. Inasmuch as there is no evidence placing the pipe in the Jeep Cherokee while the vehicle was in Muscogee County and there is a possibility the pipe was put in the Jeep after the shootings during one of several stops appellants made while in Alabama, venue for possession of methamphetamine was not proven to be in Muscogee County. Since venue is an essential element of the crime, the failure to prove beyond a reasonable doubt that appellants possessed the pipe with traces of methamphetamine on it in Muscogee County "renders the verdict contrary to law, without a sufficient evidentiary basis, and warrants reversal." Id.

3. Appellant Jackson contends the trial court erred when it did not find that his conviction for the aggravated assault of Sang Duk Lee merged as a matter of fact into his conviction for the malice murder of the same victim, and when it imposed sentences on both convictions. The malice murder count charged Jackson with unlawfully and with malice aforethought causing the death of the victim by shooting him with a handgun; the aggravated assault count alleged that Jackson unlawfully made an assault upon the victim with a handgun, a deadly weapon. The State contends the convictions do not merge because Jackson shot the victim three times, with the final shot inflicting the fatal wound and the non-fatal injuries inflicted prior to the final injury being sufficient to support the aggravated assault conviction. See Parker v. State, 281 Ga. 490(2), 640 S.E.2d 44 (2007); Farley v. State, 277 Ga 622(2), 593 S.E.2d 328 (2004); Lowe v. State, 267 Ga. 410(1b), 478 S.E.2d 762 (1996).

OCGA § 16-1-7(a) affords a defendant with substantive double jeopardy protection by prohibiting multiple convictions and punishments for the same offense. Drinkard v. Walker, 281 Ga. 211, 212, 636 S.E.2d 530 (2006). OCGA § 16-1-7(a)(1) prohibits a defendant from being convicted of more than one crime if one crime is included in another, and aggravated assault is included in the crime of malice murder when the former "is established by proof of the same or less than all the facts or a less culpable mental state than is required to establish the commission of [the latter]." OCGA § 16-1-6(1).

When a victim suffers multiple wounds inflicted in quick succession, each infliction of injury does not constitute a separate assault. Montes v. State, 262 Ga. 473(1), 421 S.E.2d 710 (1992). However, a separate judgment of conviction and sentence is authorized if a defendant commits an aggravated assault independent of the act which caused the victim's death. Lowe v. State, supra, 267 Ga. at 411-412, 478 S.E.2d 762. When a series of shots are separated by a "deliberate interval" and a non-fatal injury is sustained prior to the interval and a fatal injury is sustained after the interval, the earlier, non-fatal infliction of injury can serve to support a conviction for aggravated assault. Parker v. State, supra, 281 Ga. at 492, 640 S.E.2d 44 (non-fatal injuries caused by shots...