Downey v. State

• Decision Date: 07 March 2016
• Docket Number: No. S15A1681.,S15A1681.
• Citation: 298 Ga. 568,783 S.E.2d 622
• Parties: DOWNEY v. The STATE.
• Court: Georgia Supreme Court

298 Ga. 568

783 S.E.2d 622

DOWNEY

v.The STATE.

No. S15A1681.

Supreme Court of Georgia.

March 7, 2016.

Matthew Grossman, Public Defender of Brunswick Judicial Circuit, Brunswick, for appellant.

Patricia B. Attaway Burton, Sr. Asst. Atty. Gen., Paula Khristian Smith, Sr. Asst. Atty. Gen., Samuel S. Olens, Atty. Gen., Department of Law, John Thomas Durden Jr., Dist. Atty., Joe Grady Skeens, Asst. Dist. Atty., Atlantic Judicial Circuit District Attorney's Office, Sandra Dutton, Asst. Dist. Atty., Office of the District Attorney Atlantic Judicial Circuit, for appellee.

BLACKWELL

, Justice.

Jerry Downey was tried by a Tattnall County jury and convicted of murder and several other crimes, all in connection with a shooting in which Eboni Galloway was fatally wounded

. Downey appeals, contending that the evidence is insufficient to sustain his convictions, that the indictment was defective, that he was denied a fair and impartial jury, and that he was denied the effective assistance of counsel. We see no error and affirm.¹

1. Viewed in the light most favorable to the verdict, the evidence shows that two of Downey's cousins were involved in an altercation in Glennville on April 10, 2008. When Downey heard about the altercation, he gathered a group of men in Reidsville, and they all then proceeded to Glennville. Downey drove his own car and was accompanied by Melvin Browder. Three other men followed in another car. Along the way, Downey purchased gasoline for both cars. When the men arrived in Glennville, Downey at least twice drove through the neighborhood in which the altercation had occurred. A crowd—some of whom were carrying bats and sticks—gathered in the neighborhood, and Downey asked Browder if he had a gun ready. Downey stopped his car, and Galloway, Megan Johnson, and Alan Michael McNeal approached on foot. As they did, Browder fired two shots from the passenger seat of the car toward the approaching group, one of which fatally wounded

Galloway. Downey and Browder then sped away.

Downey contends that the State failed to prove beyond a reasonable doubt that he was a party to the murder of Galloway. The evidence fails to show, Downey explains, that Browder fired any shots with a specific intent to kill, and it instead establishes only that Browder shot with such a reckless disregard for human life that malice properly was implied.² That was enough to sustain Browder's conviction for malice murder. But to prove beyond a reasonable doubt that Downey was a party to that murder, the State had to show that he "[i]ntentionally aid[ed] or abet[ted] [Browder] in the commission of the crime," OCGA § 16–2–20(b)(3)

, or that he "[i]ntentionally advise[d], encourage[d], hire[d], counsel[ed], or procure[d] [Browder] to commit the crime." OCGA § 16–2–20(b)(4). To carry this burden, Downey continues, the State had to show that he and Browder shared a common criminal intent. That, however, is an impossibility, Downey argues, because no one can share a common criminal intent with another who acts only with criminal recklessness. We disagree.

It is true, as Downey contends, that "a conviction as a party to a crime requires proof that the defendant shared a common criminal intent with the principal perpetrator of the crime." Jones v. State, 292 Ga. 656, 658(1)(a), 740 S.E.2d 590 (2013)

(citations omitted). And Downey undoubtedly is correct that a principal acting only with criminal recklessness has no specific intent in which an accomplice might share. But criminal intent does not always require specific intent. A reckless principal may lack a specific intent, but by definition, he has a general intent to act in a way that exposes others to a risk of harm of which he is aware, but that he chooses to disregard. See OCGA § 16–2–1(b) ; Browder v. State, 294 Ga. 188, 190(1), 751 S.E.2d 354 (2013) ; Parker v. State, 270 Ga. 256, 259–260(4), 507 S.E.2d 744 (1998), overruled on other grounds, Linson v. State, 287 Ga. 881, 700 S.E.2d 394 (2010).

In this case, Downey concedes that the evidence is sufficient to show that Browder fired shots with recklessness sufficient to imply malice, meaning that Browder intentionally fired shots in conscious disregard of the substantial risk of harm to which the shots exposed others. If Downey, similarly aware of the risk of harm, also intended that Browder fire shots in disregard of that risk—thereby warranting an implication of malice on the part of Downey as well—then Downey and Browder shared a common criminal intent. Together with proof that Downey intentionally aided and abetted Browder in the firing of the shots, see OCGA § 16–2–20(b)(3)

, or that he intentionally encouraged Browder to fire the shots, see OCGA § 16–2–20(b) (4), such evidence of a common criminal intent would be sufficient to authorize a jury to find Downey guilty as a party to the crime of malice murder.³ See Jackson v. State, 278 Ga. 235, 236(1), 599 S.E.2d 129 (2004). See also Ex parte Simmons, 649 So.2d 1282, 1285 (I) (Ala. 1994) ("[F]or a person to be guilty of reckless murder as an accomplice, he need not know or decide whether the principal will act intentionally; rather, the accomplice need only have knowledge that the principal is engaging in reckless conduct and intentionally assist or encourage that conduct with the intent to promote or facilitate its commission.") (citations omitted). Viewing the evidence in this case in the light most favorable to the verdict, it was sufficient to permit a rational jury to find beyond a reasonable doubt that Downey was guilty of the murder and other crimes of which he was convicted.⁴ See Jackson v. Virginia, 443 U.S. 307, 319(III)(B), 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979)

. See also McNeely v. State, 296 Ga. 422, 425–426(3), 768 S.E.2d 751 (2015) (evidence was sufficient to find the defendant guilty as a party to crimes that required proof of reckless driving).

2. Downey contends that the indictment was defective because it failed, he says, to allege an essential element of aggravated assault, namely, that he and Browder assaulted with a "deadly weapon." Even assuming that Downey has adequately preserved this claim of error for appeal,⁵ his contention is clearly without merit. In the first plaCe, there are different sorts of aggravated assault, see OCGA § 16–5–21(b)(1)–(4)

, and only one is described in statutory language that includes the term "deadly weapon." See OCGA § 16–5–21(b)(2). The indictment in this case appears to have charged Downey with a different sort of aggravated assault, inasmuch as the allegations of the indictment closely track the words of OCGA § 16–5–21(b)(4), which provides that a person commits aggravated assault when he " assaults ... [a] person or persons without legal justification by discharging a firearm from within a motor vehicle toward a person or persons." Indeed, the indictment alleged that Downey and Browder "did make an assault upon [Galloway, Johnson, and McNeal] by discharging, without legal justification, a firearm from within a motor vehicle toward the direction of said person[s]." Moreover, even if the indictment had been meant to charge Downey with aggravated assault under OCGA § 16–5–21(b)(2), a firearm (when used as a firearm) is a deadly weapon per se, and an allegation that a firearm was fired implicitly alleges the use of a deadly weapon. See Silvers v. State, 278 Ga. 45, 47(2)(1), 597 S.E.2d 373 (2004) (indictment charging aggravated assault with a firearm, by shooting, clearly denotes the use of a deadly weapon). The indictment did not fail to adequately allege an essential element of aggravated assault.⁶

3. Downey also contends that he was denied a trial by a fair and impartial jury because one juror in voir dire failed to disclose his relationships with the Department of Corrections and the law enforcement community in general. To prevail on a claim of this sort, Downey had "to show both that the juror failed to answer honestly a material question, and that a correct response would have provided a valid basis for a challenge for cause." Green v. State, 295 Ga. 108, 110(2), 757 S.E.2d 856 (2014)

(citation omitted). See also Glover v. State, 274 Ga. 213, 214(2), 552 S.E.2d 804 (2001) ;

Isaacs v.

State,

259 Ga. 717, 741(44)(e), 386 S.E.2d 316 (1989). We conclude that Downey failed to carry his burden.

The record in this case shows that, during voir dire, the prospective jurors—having been instructed earlier to answer questions "simply and directly"—were asked to identify their "place of employment." In response to this question, juror Wayne Dasher answered simply and directly that he worked in the "banking business." Dasher did not add that he also serves on the State Board of Corrections,⁷ but notably, he said nothing to suggest that all of his time and energy is devoted exclusively and entirely to the banking business. Like most of the other prospective jurors, Dasher answered the question by identifying his principal occupation and livelihood, and he said nothing at all about his other pursuits in life. See Turan v. State, 274 Ga. 725, 727(3), 559 S.E.2d 463 (2002)

. Dasher was not asked to elaborate on his answer, and the prospective jurors never were asked about their service on public or private boards, their involvement in other community activities, or the extent to which they had any secondary employment that was only part-time or irregular. Dasher also did not volunteer in voir dire that he has relationships with the law enforcement community generally, but again, the prospective jurors were not asked about such things. Downey has failed to show that Dasher answered any question dishonestly,⁸ see Glover, 274 Ga. at 214–215(2), 552 S.E.2d 804, and for that reason, his claim that he was denied a trial by a fair and impartial jury fails.⁹

4. Finally, Downey contends that he was denied the effective assistance of counsel at trial. To prevail on a claim of ineffective assistance, Downey must prove both that the performance of his lawyers was...