Harris v. State, S01A1710.

• Decision Date: 11 March 2002
• Docket Number: No. S01A1710.,S01A1710.
• Citation: Harris v. State, 561 S.E.2d 73, 274 Ga. 835 (Ga. 2002)
• Parties: HARRIS v. The STATE.
• Court: Georgia Supreme Court

561 S.E.2d 73

274 Ga. 835

HARRIS v. The STATE.

No. S01A1710.

Supreme Court of Georgia.

March 11, 2002.

J. Louise Dietzen, Decatur, for appellant.

John T. Morgan, Dist. Atty., Barbara B. Conroy, Jeanne M. Canavan, Asst. Dist. Attys., Thurbert E. Baker, Atty. Gen., Madonna M. Heinemeyer, Asst. Atty. Gen., for appellee.

THOMPSON, Justice.

Defendant Reccenta Harris was found guilty of two counts of felony murder in connection with the death of Tracy Bowman, and sentenced to life in prison as to each count.¹ He appeals, asserting the evidence was insufficient to sustain his conviction. We disagree and affirm; however, because Harris could be sentenced as to either count of felony murder, but not both, we vacate and remand for resentencing.

1. Construing the evidence in a light to uphold the verdict,² we find the following: Harris and two friends, Smith and Scott, went out for the evening and stopped at a friend's house. When Smith got into an altercation with Bowman, Harris convinced Smith to leave.

Later, the three men were driving around when they saw Bowman and his friend, James Echols, standing on the street. Smith had a gun in the car. Harris got out of the car to talk to Echols; Smith and Scott stayed in the car. Bowman approached Harris and told him to leave. Harris pointed Smith's gun at Bowman;³ Bowman and Echols started running away. Harris ran after Bowman and fired several shots. Bowman died from a single gunshot wound that entered his back and exited his chest. Harris returned to the car and the three men drove off. Smith stopped to hide his gun in a wooded area.

Smith's car was pulled over later that night; Smith, Scott and Harris were still in the car. The following day, Smith led police to his gun.

We have no hesitation in concluding that the evidence was sufficient to enable any rational trier of fact to find Harris guilty of felony murder beyond a reasonable doubt. Jackson v. Virginia, 443 U.S. 307, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979). All eyewitnesses identified Harris as the shooter. The credibility of the witnesses was a matter for the jury to determine. Johnson v. State, 264 Ga. 456(4), 448 S.E.2d 177 (1994).

[ 561 S.E.2d 75]

2. The jury found Harris guilty as to two counts of felony murder (one predicated on aggravated assault, the other on possession of a firearm by a first offender probationer) and possession of a firearm by a first offender probationer. The trial court merged the possession of a firearm count with the felony murder counts, and sentenced Harris to two life sentences (concurrent) on the felony murder counts. However, Harris murdered a single victim; he can be sentenced on either count of felony murder, but not both. OCGA § 16-1-7; see Malcolm v. State, 263 Ga. 369(4), 434 S.E.2d 479 (1993) (where defendant is convicted of malice murder and felony murder of single victim, he can be sentenced for either malice or felony murder, but not both). Accordingly, we vacate Harris' sentence and remand this case for resentencing.

Thompson v. State, 263 Ga. 23, 426 S.E.2d 895 (1993), upon which the dissent relies, does not require this Court to specify which of the felony murder counts Harris is to be resentenced on. In that case, the jury failed to specify the underlying felony for a single felony murder count. The problem was in the ambiguity of the jury's verdict—and such an ambiguity must be construed in favor of the defendant. Id. at 25, 426 S.E.2d 895. In this case, on the other hand, the verdict is not ambiguous. However, the sentence is illegal because the trial court imposed two felony murder sentences for the killing of a single victim. Under these circumstances, the trial court is to use its discretion in resentencing Harris.

Judgment affirmed; sentence vacated and remanded for resentencing.

All the Justices concur, except FLETCHER, C.J., SEARS, P.J., and CARLEY, J., who concur in part and dissent in part.

CARLEY, Justice, concurring in part and dissenting in part.

I concur in Division 1 and in the affirmance of Harris' conviction for one count of felony murder. I dissent, however, to Division 2 in which the majority remands this case for resentencing. In my opinion, controlling precedent requires that the determination of which crimes merge is a matter for this Court, rather than the trial court, to resolve.

In Thompson v. State, 263 Ga. 23, 25(2), 426 S.E.2d 895 (1993), this Court addressed the "problem [of] how to determine which of two or more felonies should merge where ... as here, the jury specifies two or more as underlying a felony murder conviction...." (Emphasis supplied.) As I read the opinion in Thompson, its holding unquestionably applies where, as here, the jury specifies more than one underlying felony by returning guilty verdicts on multiple alternative counts of felony murder. That construction of Thompson was unanimously endorsed by this Court as recently as Coe v. State, 274 Ga. 265, 266(2), 553 S.E.2d 784 (2001). Thus, today's opinion constitutes a pronounced change in established law.

In Thompson, we rejected "purely speculative" analyses, and concluded that "there is no logical rule to be applied in making a determination regarding the jury's intent. Accordingly, there is, in these circumstances, an ambiguity which must be construed in the defendant's favor. [Cit.]" Thompson, supra at 25(2), 426 S.E.2d 895. To resolve that ambiguity, this Court unanimously held "that where it is unclear which of two or more felonies is the underlying felony for a felony murder conviction, the trial court must merge the most severe (in terms of potential punishment)." (Emphasis supplied.) Thompson, supra at 25(2), 426 S.E.2d 895.

Thus, controlling authority establishes that where, as here, "a jury specifies two or more felonies as underlying the murder conviction, the most severe must merge. [Cit.]" (Emphasis supplied.) Dunn v. State, 263 Ga. 343, 344-345(2), 434 S.E.2d 60 (1993). See also Briscoe v. State, 263 Ga. 310(2), 431 S.E.2d 375 (1993). Generally, application of that principle occurs in a case in which the accused was found guilty on an indictment charging alternative counts of felony murder and multiple independent counts of the underlying felonies. Under such circumstances, construing the ambiguity most favorably for the defendant will result in the murder conviction resting on that felony which carries the most severe punishment. See Coe v. State, supra at 266(2), 553 S.E.2d 784; Briscoe v. State, supra; Thompson v. State, supra. If the less severe felony merged, the accused would receive a separate longer sentence for the more serious unmerged crime alleged in the independent count of the indictment. By merging the most severe felony into the murder conviction, however, he only receives a separate shorter sentence for the less serious unmerged independent offense. See McClellan v. State, 274 Ga. 819, 561 S.E.2d 82 (2002), (Carley, J., dissenting).

However, in this case, Harris was charged with one count of felony murder in the commission of an aggravated assault, an alternative count of felony murder while in possession of a firearm as a first offender probationer, and an independent count for possession of the weapon. Since there was no count separately charging aggravated assault, there is no independent count for that offense which can survive a merger of the convictions and support a separate sentence. Aggravated assault is the more severe of the two predicate felonies, but a merger of that offense into the extant felony murder charge would result in the imposition of a separate sentence on the independent count for possessing the gun. Under the circumstances, a more beneficial...