Haynes v. State

• Decision Date: 05 January 1982
• Docket Number: No. 37825,37825
• Citation: 249 Ga. 119,288 S.E.2d 185
• Parties: HAYNES v. The STATE.
• Court: Georgia Supreme Court

Page 185

288 S.E.2d 185

249 Ga. 119

HAYNES v. The STATE.

No. 37825.

Supreme Court of Georgia.

Jan. 5, 1982.

Rehearing Denied March 8, 1982.

Lawrence Lee Washburn, III, Atlanta, for Mark Anthony haynes.

Lewis R. Slaton, Dist. Atty., Atlanta, for the State.

PER CURIAM.

We granted certiorari to review the Court of Appeals' opinion in this case. 159 Ga.App. 34, 283 S.E.2d 25 (1981).

1. The Court of Appeals held in Division 1 that "asportation" of the victim, necessary for conviction of kidnapping, was sufficiently shown by the evidence that the appellant, armed with a handgun, forced the victim to walk from her desk about 25 feet to the office of the hotel manager, to whom he made his demand for $20,000, and that he held the victim there against her will for 20 hours. Although we believe that specific legislation, amending Code Ann. § 26-1308, should be enacted penalizing the holding of hostages for ransom to eliminate the hairsplitting decisions as to what is sufficient asportation; nevertheless, we agree with the Court of Appeals' holding that it was sufficient here, citing Brown v. State, 132 Ga.App. 399(2), 208 S.E.2d 183 (1974).

2. The Court of Appeals held in Division 2 that, although the facts established regarding the kidnapping for ransom and the armed robbery are "overlapping to some extent and closely related," they found no merger, citing for comparison Butler v. State, 239 Ga. 591(3), 238 S.E.2d 387 (1977); Thomas v. State, 237 Ga. 690 (III), 229 S.E.2d 458 (1976).

In determining whether a crime is established by proof of the same or less than all the facts required to establish the commission of another crime, within the meaning of Code Ann. § 26-505(a), "[State v.] Estevez [232 Ga. 316, 206 S.E.2d 475 (1974) ], and a line of cases following it (Allen v. State, 233 Ga. 200(3), 210 S.E.2d 680 (1974); Burke v. State, 234 Ga. 512(2), 216 S.E.2d 812 (1975); Zilinmon v. State, 234 Ga. 535(8), 216 S.E.2d 830 (1975); Williams v. State, 238 Ga. 244(7), 232 S.E.2d 238 (1977); Pryor v. State, 238 Ga. 698(1), 234 S.E.2d 918 (1977)), look to the actual evidence introduced at trial. These cases hold, in effect, that if the state uses up all the evidence that the defendant committed one crime in establishing another crime, the former crime is included in the latter as a matter of fact under Code Ann. § 26-505(a)." Stephens v. Hopper, 241 Ga. 596, 605, 247 S.E.2d 92 (1978) (Marshall, J., concurring).

In the present case, the state's evidence showing that the appellant demanded money for the release of Ms. Craig was used to show (1) that there was a demand for ransom on the kidnapping count and (2) an intent to take another's property on the armed-robbery count. The presence of the pistol was used to show (1) that Ms. Craig was being held against her will on the kidnapping count and (2) the use of an offensive weapon on the armed-robbery count. Finally, the money transferred was used to prove (1) that Ms. Craig was held for ransom on the kidnapping count and (2) that another's property was taken from him on the armed-robbery count. Accordingly, the evidence used to establish one crime established the other, with the exception of the additional element of asportation in kidnapping for ransom. "[A] felony may merge into another felony which requires an additional element or a more culpable mental state or a more serious injury or risk of injury to the same person, property, or public interest." Pryor v. State, 238 Ga. 698, supra, p. 701, 234 S.E.2d 918. We therefore hold that, under the facts of this case, the crime of armed robbery was a lesser included offense in the crime of kidnapping for ransom and that the two crimes merged, so that the conviction and sentence for armed robbery must be set aside.

3. The remaining rulings of the Court of Appeals were correct.

Accordingly, the judgment of the Court of Appeals is affirmed with the exception of the ruling in Division 2, which is reversed with direction to remand the case to the trial court to have the conviction and sentence for armed robbery expunged from the appellant's record.

Judgment affirmed in part, reversed in part, and remanded with direction.

All the Justices concur, except HILL, P. J., who concurs in the judgment only, and MARSHALL, J., who dissents.

MARSHALL, Justice, dissenting.

For reasons stated in my concurring opinion in Stephens v. Hopper, 241 Ga. 596, 247 S.E.2d 92 (1978), I dissent from this court's setting aside of the appellant's armed-robbery conviction in this case.

In setting aside the appellant's armed-robbery conviction here, the court relies on the holding in State v. Estevez, 232 Ga. 316(1), 206 S.E.2d 475 (1974), that one crime is included in another for substantive double-jeopardy purposes if, in a particular case, it is established by proof of the same or less than all the evidence. In my opinion, where the defendant is prosecuted at one trial for multiple offenses arising from the same conduct, if it has been established that he violated two distinct statutory provisions he should be punished under each even though it may have been necessary for the state to prove one offense in order to establish the commission of the other.

If the reasoning of Estevez is taken to the limits of its logic, it results in such absurd consequences as setting aside a murder conviction as a lesser included offense of possession of a firearm during the commission of a felony in a case in which a person who has killed someone with a firearm is convicted of both offenses at one trial. Understandably, this court has refused to take Estevez to the limits of its logic. In the process, the court has drifted away from the Estevez approach of looking to the evidence actually introduced at trial in determining whether one crime is included in another. Potts v. State, 241 Ga. 67(11), 243 S.E.2d 510 (1978) and a series of cases following it look to the evidence required to establish the elements of the crime, rather than the evidence actually introduced at trial, in determining whether offenses are included. See Tucker v. State, 244 Ga. 721(6), 261 S.E.2d 635 (1979); Oglesby v. State, 243 Ga. 690(2), 256 S.E.2d 371 (1979); Legare v. State, 243 Ga. 744(7), 257 S.E.2d 247 (1979); Stephens v. Hopper, supra; see also Hill v. State, 246 Ga. 402, 271 S.E.2d 802 (1980).

In the majority of cases, utilization of either the Estevez "actual evidence" test ¹ or the Potts "elements of the crime" test will produce the same result. However, these tests have the potential for producing drastically different results, as the present case shows. For armed robbery and kidnapping for ransom have wholly distinct elements. Therefore, under Potts, neither crime is included in the other, and the appellant may be convicted of both. However, in this case the appellant's commission of the armed robbery constituted the extraction of the ransom for the kidnapping. Therefore, under the facts of this case, the state was required to prove the armed robbery in order to establish the commission of the kidnapping for ransom. Under Estevez, this means the armed robbery is included in kidnapping for ransom under the facts here.

There is yet a third approach which this court currently uses in determining the permissibility of multiple punishment for closely-related offenses prosecuted at one trial. Under this latter approach, one crime is included in another if, looking to the allegations of the indictment, it is necessary to prove one crime in order to establish the commission of the other. Support for this approach can be found in Satterfield v. State, 248 Ga. 538, 285 S.E.2d 3 (1981); Collier v. State, 244 Ga. 553(6), 261 S.E.2d 364 (1979); and Atkins v. Hopper, 234 Ga. 330(3), 216 S.E.2d 89 (1975). Depending, of course, on what is contained in the allegations of a particular indictment, this third approach may produce results that are either consistent or inconsistent with the other two tests.

What is truly lamentable about this state of conflict and confusion in the decisions of this court in the area of substantive double jeopardy is that Georgia's statutory double-jeopardy provisions provide workable guidelines for eliminating or at least alleviating the confusion, but this court displays a chronic insistence on perpetuating and even compounding it. A brief review of certain aspects of the constitutional history of double jeopardy, and a reexamination of the statutory provisions which govern double-jeopardy questions in Georgia, will demonstrate my point.

1. The constitutional double-jeopardy protection at both the federal and state levels was originally applied only as a limitation on multiple prosecutions for crimes arising from the same conduct (referred to as the procedural bar of double jeopardy). As rules of common-law pleading became more liberal and as legislators began enacting an increasing number of statutory offenses, the double-jeopardy protection came to be applied as a limitation upon multiple convictions or punishments that may be imposed at one trial (referred to as the substantive bar of double jeopardy). However, it is generally recognized that the double-jeopardy clause's limitation on multiple prosecutions is the more important protection. The double-jeopardy clause's limitation on multiple punishment is primarily, if not exclusively, a restriction on the power of the judiciary, rather than the legislature, to impose cumulative punishment for closely-related offenses. See Sanabria v. United States, 437 U.S. 54, 98 S.Ct. 2170, 57 L.Ed.2d 43 (1978); Horack, The Multiple Consequences of a Single Criminal Act, 21 Minn.L.Rev. 805 (1937) (hereinafter cited as Multiple Consequences ); Comment, Twice in Jeopardy, 75 Yale L.J. 262 (1965) (hereinafter cited as Twice in Jeopardy ). In making a judicial determination of whether multiple punishment is permissible, the question is: What did the legislature intend? See, e.g., Whalen v. United States, 445...