Easley v. State
| Decision Date | 24 June 2003 |
| Docket Number | No. A03A0674.,A03A0674. |
| Parties | EASLEY v. The STATE. |
| Court | Georgia Court of Appeals |
OPINION TEXT STARTS HERE
Hudson, Montgomery & Kalivoda, David R. Montgomery, Athens, Richard F. Connelly, Jr., for appellant.
Kenneth W. Mauldin, Dist. Atty., Edward H. Brumby, Jr., Asst. Dist. Atty., for appellee.
Duntay Tromaine Easley appeals from denial of his post-trial motions for new trial, for judgment and acquittal, in arrest of judgment, and to bar imposition of sentence, and plea of double jeopardy following his conviction by a jury of aggravated assault and possession of a firearm during the commission of a crime.
1. Easley was charged with malice murder, felony murder, and possession of a firearm during the commission of a crime as a result of the shooting death of Goss and was convicted of the possession of a firearm count and the lesser included offense of aggravated assault. Viewed with all inferences in favor of the jury's verdict, Jackson v. Virginia, 443 U.S. 307, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979); Hodges v. State, 248 Ga.App. 23(1), 545 S.E.2d 157 (2001), the evidence was that Easley walked into the yard outside a house in Athens where Goss and Faust were standing and talking. As Easley walked up, Goss asked him if he was "still going to do it" to which Easley responded, "nah, man, nah." Shortly after Easley arrived, he produced a cocked pistol and pointed it at Goss. There was no evidence that Goss and Easley were arguing. Goss then said, "damn, man, go on, do what you going to do." The pistol fired, and the bullet entered Goss' right front shoulder and exited the left side of his upper back, killing him.
Easley was known to play around with the gun, jacking it back and "bull shooting" (pretend shooting) it at people. When Goss fell to the ground, Easley first froze, then approached and attempted to give him CPR.
Easley threw the pistol to the side and then asked Faust to hide it, which he did by putting it in a bucket down the street. Faust later led police to the bucket where they found the gun in an inch of water with the clip removed.
Easley left the area and told Deadwyler he thought he had shot Goss and asked him to take Goss to the hospital. Deadwyler refused and suggested they call an ambulance. Easley and Deadwyler got another person to call for an ambulance, and Easley returned to Goss, where he was found by police, kneeling beside Goss' body.
The evidence of aggravated assault and possession of a firearm during the commission of a felony was legally sufficient. Jackson v. Virginia, supra; Jackson v. State, 276 Ga. 408, 409(1), 577 S.E.2d 570 (2003).
2. Both of Easley's enumerations address his contention that the trial court should have accepted the jury's second of three verdicts and that directing them to continue considering the involuntary manslaughter and aggravated assault lesser included offenses was error. They are considered together.1
The trial court properly charged the jury on malice murder, felony murder (the felony being aggravated assault), possession of a firearm during the commission of a crime (the crime being murder and aggravated assault), as well as the lesser included crimes of aggravated assault and involuntary manslaughter. The trial court also charged that their verdict was to be
The form was sent back to the jury with the judge's instruction, and the court inquired of counsel whether the verdicts on aggravated assault and involuntary manslaughter were inconsistent.2 During that discussion, defense counsel stated that "I think the Court should instruct the jury that the findings on aggravated assault and involuntary manslaughter are mutually exclusive and that they need to decide on one or the other of those." After discussion, the court instructed the jury that if they wanted to make this form their verdict, it should be attached to the indictment and signed by the foreperson. The jury did this and returned the verdict to the courtroom.
At this point, the trial court refused to accept the verdict and told the jury that "I am not accepting the verdict at this time, at least proposed verdict, and the reason I am not is I am instructing you that you have rendered inconsistent guilty verdicts on the charge of aggravated assault and involuntary manslaughter; therefore, I am sending you back into the jury room to further consider that matter."
At 12:30 p.m., the jury indicated it had a second verdict. The following exchange occurred:
(Emphasis supplied.)
The jury then returned the third verdict upon which judgment was entered. It found Easley not guilty of malice murder, not guilty of felony murder, guilty of possession of a firearm during the commission of a crime, and guilty of aggravated assault.
The first and second verdict forms are not part of the record here, only discussion of them by the court and counsel. After return of the third verdict, the following exchange occurred:
Easley argues, based on Maltbie v. State, 139 Ga.App. 342, 344(2), 228 S.E.2d 368 (1976), that the second verdict controls this case because actions taken thereafter were void as violative of double jeopardy. Pretermitting the fact that the first and second verdict forms are not contained in the record before us and the only indication of what they contained is the reading by the court of the jury's note and the colloquy set out above,3 we consider whether the first verdict, which was signed by the jury foreman, received and published in open court, contained mutually exclusive convictions of aggravated assault and involuntary manslaughter and whether the court's directing the jury to continue deliberating after the jury indicated it had a second verdict was proper.
Verdicts are mutually exclusive United States v. Powell, 469 U.S. 57, 69 fn. 8, 105 S.Ct. 471, 83 L.Ed.2d 461 (1984). Accord Dumas v. State, 266 Ga. 797, 800, 471 S.E.2d 508 (1996) ().
(Emphasis supplied.) Jackson v. State, supra at 410(2), 577 S.E.2d 570.4
Here, both the malice murder and felony murder counts alleged that Easley intentionally shot Goss. In his charge to the jury on aggravated assault as a lesser included offense of either the malice murder or felony murder count, the trial court instructed them that a person commits aggravated assault Therefore, the trial court's instruction limited the consideration of aggravated assault to OCGA § 16-5-20(a)(1).
Jackson v. State, supra at 411(2), 577 S.E.2d 570.
Involuntary manslaughter, however, requires the commission of an unlawful act, other than a...
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