Johnson v. the State., S11A0721.
| Decision Date | 12 September 2011 |
| Docket Number | No. S11A0721.,S11A0721. |
| Citation | 11 FCDR 2878,715 S.E.2d 99,289 Ga. 650 |
| Parties | JOHNSONv.The STATE. |
| Court | Georgia Supreme Court |
OPINION TEXT STARTS HERE
Ashleigh Bartkus Merchant, Atlanta, for appellant.Paul L. Howard, Jr., Dist. Atty., Paige Reese Whitaker, Stephany J. Luttrell, Asst. Dist. Attys., Samuel S. Olens, Atty. Gen., Mary Beth Westmoreland, Deputy Atty. Gen., Paula Khristian Smith, Senior Asst. Atty. Gen., Sheila Elizabeth Gallow, Asst. Atty. Gen., for appellee.MELTON, Justice.
Following a jury trial, Eric Johnson appeals his conviction for felony murder, theft by receiving stolen property, felony fleeing and attempting to elude police, and aggravated assault, contending, among other things, that the trial court's instructions to the jury were erroneous. 1 For the reasons set forth below, we affirm.
1. Viewed in the light most favorable to the verdict, the record shows that, on November 7, 2002, Johnson led police on a high-speed chase while driving a stolen car. After running red lights and hitting another vehicle along the way, Johnson drove the stolen car across the center line of the road and crashed into the car being driven by Robert Hairston. Although alert at the scene, Hairston died at the hospital three days later when a blood clot in his leg traveled to his lungs. The medical examiner testified that he believed that the blood clot formed while Hairston was kept immobilized to treat his injuries. Similar transaction evidence was also admitted showing that Johnson led police on a high-speed chase in another stolen vehicle less than a year earlier.
This evidence was sufficient to enable the jury to determine that Johnson was guilty of the crimes for which he was convicted beyond a reasonable doubt. Jackson v. Virginia, 443 U.S. 307, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979). Johnson attempts to avoid this result, however, by arguing both that the collision was merely an accident rather than an aggravated assault and that theft by receiving a stolen vehicle cannot serve as a predicate for felony murder because it is not an inherently dangerous act. Johnson argues that, as a result, his convictions for aggravated assault, felony murder based on aggravated assault, and felony murder based on theft by receiving a stolen vehicle must be overturned. These contentions, however, have previously been decided adversely to Johnson in Turner v. State, 281 Ga. 487, 640 S.E.2d 25 (2007). With regard to aggravated assault, Johnson maintains that the evidence shows he had no specific intent to injure anyone.
[T]he State[, however,] is not required to prove specific intent; the issue is whether defendant possessed a general intent to injure. See Durrance v. State, 250 Ga.App. 185(2), 549 S.E.2d 406 (2001). Id. at 187
. The jury was authorized to infer from [Johnson's] conduct that he had an intent to injure [Hairston], or anybody who was in his way while he attempted to elude police.
Turner, supra, 281 Ga. at 489(1)(b), 640 S.E.2d 25.
With regard to Johnson's argument that theft of an automobile cannot serve as a predicate offense for felony murder,
[Johnson's] possession of the stolen car played a role in his decision to flee—he may have believed he could escape in the stolen car, where he could not have escaped on foot. The decision to remain in the stolen car in order to flee created a foreseeable risk of death. Accordingly, under the facts of this case we find that possession of a stolen automobile was sufficient to support a felony murder conviction.
Id. at 489(1)(a), 640 S.E.2d 25. Therefore, Johnson's arguments that the evidence was insufficient fail.
2. Johnson contends that the trial court erroneously included an improper definition of the term “collateral” during a re-charge to the jury regarding felony murder. The record shows that, in its initial charge to the jury, the trial court gave the full pattern charge on felony murder, stating:
In order for a homicide to have been done in the commission of this particular felony, there must be some connection between the felony and the homicide. The homicide must have been done in carrying out the unlawful act and not collateral to it. It's not enough that the homicide occurred soon or presently after the felony was attempted or committed, there must be such a legal relationship between the homicide and the felony so as to cause you to find that the homicide occurred because the felony was—the homicide occurred before the felony was at an end or before any attempt to avoid conviction or arrest for that felony. The felony must have a legal relationship to the homicide.
The trial court repeated this passage twice, once for each count of felony murder. After deliberations had begun, the jury requested a re-charge on felony murder, and the trial court repeated the cited passage for a third time. The jury deliberated for a while longer and then asked the trial court for a definition of the term “collateral.” The trial court then proceeded to give the jury the pattern charge on felony murder for the fourth time. As part of this re-charge, the trial court added:
Collateral means separate and apart. And this—the felony must have caused the homicide or be a part of the homicide. Collateral would be like a separate offense that would have no connection whatsoever to the homicide. It is not enough that the homicide occurred soon or presently after a felony was attempted or completed. It must be in such legal relationship between the homicide and the felony so as the felony caused the homicide, and it occurred before the felony came to an end. The felony must have a legal relationship to the homicide, be at least concurrent with it and happened at the same time or be part of it in [an] actual and material sense.
Johnson now contends that, by giving this last charge, the trial court “watered down” the nexus requirement between the felony and the death of the victim and instructed the jurors that any dangerous felony that has any connection whatsoever to the homicide may be used to prove a felony murder charge. The trial court's charge, however, does not support Johnson's interpretation, which is based on the isolation of one sentence in the charge coupled with speculation as to how jurors might have reacted to the isolated sentence out of its context. Jury instructions, however, cannot be analyzed in this manner. Instead, they must be read as a whole. See, e.g., Hilton v. State, 288 Ga. 201(4)(b), 702 S.E.2d 188 (2010). Here, it is clear that the trial court gave jurors the pattern charge on felony murder at least three times. There was no error.
3. Johnson contends that the trial court erred by denying his request to charge the jury on vehicular homicide as a lesser-included offense of felony murder...
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