Jenkins v. State
| Decision Date | 13 February 2020 |
| Docket Number | A19A2183,A19A2184,A19A2185 |
| Court | Georgia Court of Appeals |
| Parties | JENKINS v. The STATE. Lee v. The State. Lenear v. The State. |
Holly Hance Maestas, for Appellant in A19A2183.
Joseph Kenneth Mulholland, Moruf Olalere Oseni, for Appellee.
Gilbert J. Murrah, Bainbridge, for Appellant in A19A2184.
Keith Allen Pflepsen, Albany, for Appellant in A19A2185.
Michael L. Bankston, Joseph Kenneth Mulholland, Moruf Olalere Oseni, for Appellee in A19A2185.
Myron Lee, Issac Jenkins, and Keshawn Lenear were jointly tried before a jury for crimes relating to a shooting in Mitchell County. Lee was convicted of criminal attempt to commit felony murder, armed robbery, two counts of aggravated assault, and two counts of possession of a firearm during the commission of a felony; Jenkins was convicted of robbery by intimidation, aggravated assault, and possession of a firearm during the commission of a felony; and Lenear was convicted of robbery by intimidation. After the trial court denied their motions for new trial, the defendants filed these appeals.
Lee argues that the trial court erred by denying his motion for directed verdict on the count alleging criminal attempt to commit felony murder because attempted felony murder is not a crime in Georgia; that the trial court improperly commented on the evidence; and that the trial court erred in sentencing him. Jenkins argues that he received ineffective assistance of trial counsel. Lee and Jenkins both argue that venue of the robbery was in Dougherty County, not Mitchell County. All three defendants argue that the evidence does not support their convictions.
We agree with Lee that criminal attempt to commit felony murder is not a crime in Georgia, so we reverse that conviction. We affirm Lee's remaining convictions as well as Jenkins’ and Lenear's convictions.
Viewed in the light most favorable to the jury's verdict, Winters v. State , 305 Ga. 226, 227 (1), 824 S.E.2d 306 (2019), the evidence presented at trial showed that the crimes stemmed from a dispute with the victim's cousin over a debt related to the rental of a U-Haul. Lee, Datialion Jenkins, and Jenkins’ two brothers, defendants Issac Jenkins and Keshawn Lenear, confronted the victim in the parking lot of a barbershop in Dougherty County, surrounded him, and told him to call his cousin. Lee tapped on his leg and told the victim that he was "strapped."
Lee told the victim to get into Lee's car, and Lee drove the victim, Datialion Jenkins, Issac Jenkins, and Lenear to a dirt road in Mitchell County. Issac Jenkins kept a gun pointed at the victim as they were driving. Once they stopped, Lenear handed Lee a gun from the glove compartment, and Lee ordered the victim to get out of the car. Issac Jenkins demanded the victim's wallet while pointing a gun at him. The men went through the victim's wallet and took his cell phone. Lee called the cousin using the victim's cell phone, which was on speaker phone. Lee told the cousin that was the last time he would speak to the victim. Lee shot the victim. The defendants began to drive off, but backed the car up, and Datialion Jenkins shot the victim again.
Datialion Jenkins pled guilty to aggravated assault and robbery and testified at trial. At his plea hearing, he had testified that his brothers knew what was planned for the victim, but at trial he testified that he had lied about his brothers to get his plea deal. An investigator who was working courtroom security testified at the defendants’ trial that after Datialion Jenkins had testified, while he was being held in a room adjacent to the defendants, he told the defendants through the wall that they should not worry because he was "taking the rap for it."
This evidence was sufficient to enable a rational trier of fact to find the defendants guilty beyond a reasonable doubt of the crimes of which they were convicted (other than Lee's conviction of attempted felony murder, which is addressed in Division 2 below). Jackson v. Virginia , 443 U.S. 307, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979).
Lee argues the trial court erred in denying his motion for directed verdict of acquittal on the attempted felony murder count because attempted felony murder is not a crime in Georgia. We agree.
As we noted in Summerlin v. State , 339 Ga. App. 148, 154-155 (4), 793 S.E.2d 477 (2016), whether attempted felony murder is a crime in Georgia is an issue of first impression. We were not required to resolve the issue in Summerlin because the attempted felony murder offenses were vacated as a matter of law by the trial court's merging them with the attempted malice murder offenses. Today the question is squarely before us.
The felony murder statute provides: "A person commits the offense of murder when, in the commission of a felony, he or she causes the death of another human being irrespective of malice." OCGA § 16-5-1 (c). "[F]elony murder does not require intent to kill; rather, the defendant only must have intended to commit the underlying felony." Oliver v. State , 274 Ga. 539, 540 (2), 554 S.E.2d 474 (2001).
The attempt statute provides: "A person commits the offense of criminal attempt when, with intent to commit a specific crime, he performs any act which constitutes a substantial step toward the commission of that crime." OCGA § 16-4-1. "Attempt is a specific intent crime in that it requires a showing that the actor intended to commit the substantive offense." Kurtz, Ga. Criminal Offenses and Defenses, Attempt and Solicitation (2019 ed.).
So the intent required to support a conviction of felony murder is the intent to commit the underlying felony that unintentionally results in the victim's death, Oliver , supra. The felony murder statute does not require the state to prove that a defendant intended to commit felony murder. See OCGA § 16-5-1 (c). But as set out in the attempt statute, OCGA § 16-4-1, the intent required to support a conviction of criminal attempt is the intent to commit the specific crime. "The offense of attempt requires an intent to commit a specific offense, while felony murder does not involve an intention to kill." Summerlin , 339 Ga. App. at 154 (4), 793 S.E.2d 477 (citation and punctuation omitted). So attempt to commit felony murder would entail intent to perpetrate an unintentional killing. As the Supreme Court of Colorado recognized, this would be "a logical impossibility." Waits v. People , 724 P.2d 1329, 1341 (Colo. 1986). "There is no such criminal offense as an attempt to achieve an unintended result." Summerlin , 339 Ga. App. at 154 (4), 793 S.E.2d 477 (citation and punctuation omitted).
As we observed in Summerlin , the majority of jurisdictions that have considered the question have concluded that attempted felony murder is not a crime. See, e.g., State v. Sanders , 241 W.Va. 590, 827 S.E.2d 214 (2019) ; Bruce v. State , 317 Md. 642, 646-647 (IV), 566 A.2d 103 (1989) ; Waits , supra, 724 P.2d at 1341 ; State v. Price , 104 N.M. 703, 726 P.2d 857 (1986) ; State v. Darby , 200 N.J.Super. 327, 329-332 (I), 491 A.2d 733 (1984) ; Commonwealth v. Griffin , 310 Pa.Super. 39, 50-53, 456 A.2d 171 (1983) ; Head v. State , 443 N.E.2d 44, 47-51 (I) (Ind.1982).
Under the plain language of the felony murder and attempt statutes, it is logically impossible for a person to attempt to commit felony murder. Accordingly, we conclude that attempted felony murder is not a crime in Georgia. See Wilson v. State , 53 Ga. 205, 206 (1874) ).
Lee argues that the trial court improperly commented on the evidence. The comments were the judge's explanations of his reasons for rulings on evidentiary objections or concerned undisputed facts, so they did not violate OCGA § 17-8-57.
OCGA § 17-8-57 (a) (1) provides, "It is error for any judge, during any phase of any criminal case, to express or intimate to the jury the judge's opinion as to whether a fact at issue has or has not been proved or as to the guilt of the accused." However, where, as here, a party does not make a timely objection to an alleged violation, we review the alleged violation only for plain error. OCGA § 17-8-57 (b).
To establish plain error, [Lee] must point to a legal error that was not affirmatively waived, was clear and obvious beyond reasonable dispute, affected his substantial rights, and seriously affected the fairness, integrity, or public reputation of judicial proceedings. To show that the error affected his substantial rights, [Lee] must demonstrate that it caused him harm, meaning that the outcome of the trial court proceedings likely was affected.
Hightower v. State , 304 Ga. 755, 759 (2) (b), 822 S.E.2d 273 (2018) (punctuation and citations omitted). Further, "[s]hould any judge express an opinion as to the guilt of the accused, [we] shall grant a new trial." OCGA § 17-8-57 (c).
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