Flournoy v. Williams, s. S13A1908

• Decision Date: 10 March 2014
• Docket Number: Nos. S13A1908,S13A1909.,s. S13A1908
• Citation: 294 Ga. 741,755 S.E.2d 777
• Court: Georgia Supreme Court
• Parties: FLOURNOY v. The STATE. Williams v. The State.

294 Ga. 741

755 S.E.2d 777

FLOURNOY

v.The STATE.

Williams

v.The State.

Nos. S13A1908, S13A1909.

Supreme Court of Georgia.

March 10, 2014.

Stephen Randall Scarborough, Atlanta, Charles E.W. Barrow, Athens, for appellants (case no. S13A1908).

Arrianne E. Mathe', for appellant (case no. S13A1909).

Anna Green Bolden, Asst. Dist. Atty., James Bradley Smith, Dist. Atty., Samuel S. Olens, Atty. Gen., Paula Khristian Smith, Sr. Asst. Atty. Gen., Patricia B. Attaway Burton, Deputy Atty. Gen., for appellee.

BENHAM, Justice.

Appellants Maurice Flournoy and Michael Williams were tried jointly and each was convicted of felony murder (with the underlying felony of aggravated assault by shooting the victim) and related crimes stemming from an armed robbery during a drug buy.¹ Both appellants filed a motion for new trial, which was denied. For the reasons set forth below, the appellants' convictions are affirmed.

Viewed in the light most favorable to the verdict, the evidence shows Flournoy and Williams worked for the same employer as Jaylon Vanderford. Flournoy approached Vanderford about purchasing marijuana, and Vanderford arranged a deal whereby his friend Aaron Gaddis would sell Flournoy five pounds of marijuana for $5,500. On May 27, 2006, Vanderford, accompanied by his girlfriend, Ashley Russell, drove to meet Flournoy at a convenience store so Flournoy could follow him to Gaddis's house. Flournoy arrived with Williams, and instead of following Vanderford in a separate car, they got into the back seat of Vanderford's vehicle and asked him to drive them to Gaddis's residence. On the way, one or both appellants pointed a gun at Vanderford and Russell, and Flournoy told them they were being held up. In an apparent effort to demonstrate the gun was real, Flournoy told Williams to “click” the gun and to shoot Vanderford in the leg if he did not follow directions. Upon arriving at Gaddis's house, Gaddis came out and got into the back seat of the car to conduct the transaction. Gaddis passed the marijuana to Flournoy who then passed it to Williams. Flournoy then informed Gaddis he was being robbed and commanded Gaddis to drop his trousers so he could confirm he was unarmed. Flournoy then ordered Vanderford to drive back to his car. On the way, Gaddis and Flournoy engaged in an argument, and Gaddis apparently struck Flournoy. Vanderford and Russell heard a pop and then heard Flournoy exclaim to Williams, “You just shot him, man!” Gaddis asked to be taken to the hospital, but Williams said, “No.... take us to the store.” Vanderford complied with Williams's demand and dropped Flournoy and Williams off where they had parked Flournoy's car. Vanderford then took Gaddisto the hospital where he died from a single gunshot wound to the chest.

Once Williams was apprehended, he directed law enforcement to a pistol he admitted he had tried to destroy and had hidden in a drainage pipe outside his residence. Markings on the .25 caliber bullet recovered from Gaddis's body matched the pistol. Williams also admitted possession of the marijuana to law enforcement officers and told them where he had disposed of it, but it was never found.

1. The evidence adduced at trial and summarized above was sufficient to authorize a rational trier of fact to find both appellants guilty beyond a reasonable doubt of the crimes for which they were convicted. Jackson v. Virginia, 443 U.S. 307, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979).

Case No. S13A1908

2. With respect to the felony murder charge (Count 2 of the indictment), the indictment accused both appellants with causing Gaddis's death by aggravated assault by “shooting Aaron Gaddis” and with respect to the aggravated assault charge relating to Gaddis (Count 7), the indictment accused them of “mak[ing] an assault upon the person of Aaron Gaddis, with a pistol, a deadly weapon, by shooting him....” The trial court instructed the jury that “a person commits aggravated assault when that person assaults another person with a deadly weapon, which is alleged in count 7.” The trial court further gave the general instruction on aggravated assault, stating that aggravated assault with a deadly weapon “is defined as an act committed with a deadly weapon, which act places another person in reasonable apprehension of immediately receiving a violent injury.” Relying upon Talton v. State, 254 Ga.App. 111, 561 S.E.2d 139 (2002), Flournoy asserts the denial of his motion for new trial must be reversed because the trial court's instructions constructively amended the indictment by allowing the jury to convict on the aggravated assault count as well as the felony murder count if it found Flournoy merely pointed a pistol at Gaddis as opposed to shooting him, as averred in the indictment. We find no reversible error.²

In addition to the language quoted above, the trial court also charged the jury that it would be authorized to find a defendant in this case guilty of felony murder if it found beyond a reasonable doubt that the defendant committed the crime of “aggravated assault with a deadly weapon, as specifically alleged in Count 2 of the indictment....” In the indictment, Flournoy and Williams were accused not only of aggravated assault of Gaddis “with a pistol, a deadly weapon, by shooting him”; the indictment also accused them in separate counts of aggravated assault of Vanderford and Russell by “assault ... with intent to rob by brandishing a pistol....” The trial court charged the jury: “Aggravated assault may be committed in a number of ways. You should examine the indictment and find a particular [d]efendant guilty only if the State proves that [d]efendant's guilt beyond a reasonable doubt as specifically alleged in that count of the indictment.” Further, the record reflects that the jury was provided with a copy of the indictment and the trial court charged the jury that “[t]he burden of proof rests upon the State to prove every material allegation of the indictment and every essential element of each crime charged beyond a reasonable doubt.”

Accordingly, we find no error in the manner in which the jury was charged on the indictment's accusation of aggravated assault with respect to Gaddis or the accusation of felony murder. Even though the trial court charged the jury on the general definition of aggravated assault with a deadly weapon, it clearly and unequivocally charged that, with respect to the Count 7 allegation of aggravated assault of Gaddis, defendants could be found guilty only upon the crime as alleged in the indictment. It gave a similar instruction with respect to Count 2 which alleged felony murder. Even where a jury instruction is defective in that the trial court instructs the jury that an offense could be committed by other statutory methods than the one method charged in the indictment, which did not occur in this case, such a defect is cured where, as here, “the court provides the jury with the indictment and instructs jurors that the burden of proof rests upon the State to prove every material allegation of the indictment and every essential element of the crime charged beyond a reasonable doubt.” (Citations, punctuation and italics omitted.) Williams v. Kelley, 291 Ga. 285, 286–287, 728 S.E.2d 666 (2012). Further, in order to convict, the jury of necessity had to find the defendants shot the victim, and therefore Flournoy's assertion that the instruction improperly permitted the jury to convict for aggravated assault if it found defendants had simply pointed a pistol at Gaddis, without actually shooting him, lacks merit. Compare Patel v. State, 278 Ga. 403(5), 603 S.E.2d 237 (2004) (where the defendant was charged with felony murder predicated upon aggravated assault “by shooting,” the jury necessarily found defendant shot the victim as alleged in the indictment).

3. According to Flournoy, the evidence supports the conclusion that it was Williams and not Flournoy who shot Gaddis. Thus, he asserts the trial court erred by failing to instruct the jury on the theories of conspiracy and proximate cause because without those instructions, the jury could not have convicted him. We reject this assertion.³

The trial court properly instructed the jury on the issue of conviction as a party to a crime. Pursuant to OCGA § 16–2–20(b), a person may be convicted of commission of a crime even if he or she does not directly commit the crime but, instead, “[i]ntentionally aids or abets in the commission of the crime; or ... [i]ntentionally advises, encourages, hires, counsels, or procures another to commit the crime.” While this statute “does not use the word ‘conspiracy’ it is plain that it embodies the theory of conspiracy insofar as it renders one not directly involved in the commission of a crime responsible as a party thereto.” Scott v. State, 229 Ga. 541, 544(1), 192 S.E.2d 367 (1972) (construing the predecessor statute to OCGA § 16–2–20). Consequently, in Scott, this Court held the trial court did not err in instructing the jury on the theory of conspiracy where the evidence demonstrated the criminal charge against the defendant was based on this theory even though he was not charged with criminal conspiracy. Id. See also Mister v. State, 286 Ga. 303, 307(5)(b), 687 S.E.2d 471 (2009). But this does not mean, as Flournoy argues, that an instruction on the theory of conspiracy is required before a jury may convict a defendant, who did not directly commit the crime, as a party to the crime. “[W]hether a person was a party to a crime can be inferred from his presence, companionship, and conduct before and after the crime was committed.” (Citation omitted.) Teasley v. State, 288 Ga. 468, 469, 704 S.E.2d 800 (2010). In this case, the evidence showed Flournoy knew Williams was armed and that he and Williams acted jointly to rob and kidnap Gaddis at gunpoint. It showed that after the shooting, Flournoy fled the scene with Williams. Accordingly, the fact that Flournoy “did not actually fire the gun...