Jones v. State

• Decision Date: 13 March 1995
• Docket Number: No. S94A1161,S94A1161
• Citation: 454 S.E.2d 482,265 Ga. 138
• Parties: JONES v. The STATE.
• Court: Georgia Supreme Court

Page 482

454 S.E.2d 482

265 Ga. 138

JONES v. The STATE.

No. S94A1161.

Supreme Court of Georgia.

March 13, 1995.

John L. Tracy, Albany, for Jones.

Britt R. Priddy, Dist. Atty., Albany, Michael J. Bowers, Atty. Gen., Susan V. Boleyn, Senior Asst. Atty. Gen., Paige Reese Whitaker, Asst. Atty. Gen., Atlanta, for State.

CARLEY, Justice.

Based upon the fatal shooting of a single victim, appellant was indicted for the following six offenses: malice murder; felony murder with aggravated assault as the underlying offense; two counts of aggravated assault; possession of a firearm during the commission of a crime; and, possession of a firearm by a convicted felon. He filed a motion to bifurcate his trial on the latter count from his trial on the other five counts. The bifurcation motion was denied and he was brought to trial before a jury on all six counts. The jury found him guilty of felony murder and possession of a firearm by a convicted felon. He appeals from the judgments of conviction and sentences entered by the trial court on the jury's guilty verdicts. ¹

1. The evidence showed that appellant shot the victim three times while engaged in a dispute over a debt stemming from a drug deal. Appellant contended that the drug deal was the result of his work as a confidential informant. However, the county drug enforcement officers testified that they had not given appellant authority to make the deal and knew nothing about the transaction. Before he died, the victim identified appellant as the assailant. Appellant was also identified by the victim's girlfriend. Appellant did not deny shooting the victim, but contended that he acted in self-defense. However, the victim was unarmed and appellant's claim of self-defense was contradicted by eyewitness testimony. Appellant has a prior felony conviction for possession of cocaine.

When construed most favorably for the State, the evidence was sufficient to authorize a rational trier of fact to find proof, beyond a reasonable doubt, of appellant's guilt of possession of a firearm by a convicted felon and felony murder while in the commission of an aggravated assault. Jackson v. Virginia, 443 U.S. 307, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979).

2. Several of appellant's enumerations of error relate to the denial of his bifurcation motion.

Pursuant to Head v. State, 253 Ga. 429, 431(3)(a), 322 S.E.2d 228 (1984), a bifurcation motion should be granted where the count charging possession of a firearm by a convicted felon "is unrelated to" any other count in the indictment. However, Head, supra at 432(3)(d), 322 S.E.2d 228, also provides that a motion to bifurcate should be denied where the count charging the possession offense

might be material to a more serious charge--as, for example, where the offense of murder and possession are charged in one indictment, and the possession charge might conceivably become the underlying felony to support a felony murder conviction on the malice murder count of the indictment....

Here, both the malice murder and possession offenses were charged in one indictment and, because the homicide resulted from appellant's alleged use of the gun to commit an aggravated assault, the possession charge could support a felony murder conviction. See Ford v. State, 262 Ga. 602(1), 423 S.E.2d 255 (1992). Accordingly, a verdict finding appellant guilty of committing felony murder with the possession offense as the predicate felony might be authorized if the malice murder and possession offenses were tried together. See Jolley v. State, 254 Ga. 624, 627(2), 331 S.E.2d 516 (1985). Under the indictment and circumstances, such a felony murder could be considered "an included offense [of malice murder] as a matter of fact. [Cit.]" Burke v. State, 234 Ga. 512 514(2), 216 S.E.2d 812 (1975). It follows that, in ruling on appellant's motion to bifurcate, the trial court was authorized to find that the evidence might authorize a felony murder conviction on the malice murder count of the indictment, with the possession charge as the underlying felony. Head, supra at 432(3)(d), 322 S.E.2d 228.

This principle established in Head is not limited to cases wherein the indictment charges malice murder as the only murder count. Nothing whatsoever in Head itself authorizes such a narrow construction of the applicability of its holding. By its express terms, Head refers generally to the case wherein malice murder and the possession offense are charged in the same indictment, without specifically excluding the case wherein additional alternative felony murder counts might also be contained in the indictment. In fact, this court has previously recognized the applicability of the principle to an indictment which, in addition to containing counts of malice murder and the possession offense, also alternatively charged the defendant with felony murder. See Williams v. State, 263 Ga. 135, 136(1), 429 S.E.2d 512 (1993). In this case, felony murder with the possession offense as the predicate felony could be an included offense in the malice murder count as a matter of fact. Burke v. State, supra. Accordingly, the mere fact that appellant was alternatively indicted for felony murder with aggravated assault as the predicate felony would not prevent the possession charge from becoming the underlying felony supporting a felony murder conviction on the malice murder count. Head, supra at 432(3)(d), 322 S.E.2d 228.

Here, the trial court did not give a charge on the possession offense as the predicate felony for a felony murder conviction and the jury found appellant guilty of felony murder with aggravated assault as the predicate felony. However, nothing in Head holds that a bifurcation motion must be granted unless the possession offense actually becomes the underlying felony which supports a felony murder conviction on the malice murder count of the indictment. All Head requires is that, at the outset of the trial when the motion is being considered, it is plausible that a felony murder conviction on the malice murder count could be supported by the possession offense. Head, supra at 432(3)(d), 322 S.E.2d 228. It is immaterial that, at the conclusion of the trial, the possession offense ultimately did not serve that purpose. Since a charge on appellant's guilt of felony murder with the possession offense as the predicate felony would have been authorized as a possible verdict in the unbifurcated trial, the trial court's failure to have given such a charge is certainly not a basis for holding that appellant's bifurcation motion should have been granted. The failure to have given such a charge, coupled with the giving of a charge that the possession offense was not material to any other count of the indictment, was error which was beneficial to appellant, because the jury was thereby prevented from considering an additional count of felony murder as a viable alternative basis for convicting appellant.

Any suggestion that a finding of no error in the denial of appellant's motion to bifurcate will render Head meaningless is premised upon a misconstruction and misunderstanding of the holding in that case. Head was not a murder case. It was a case wherein an unbifurcated trial resulted in convictions for both armed robbery and the possession offense and, on appeal, the Court of Appeals affirmed. Head v. State, 170 Ga.App. 324, 316 S.E.2d 791 (1984). We granted certiorari and reversed, because the defendant's prior convictions had "nothing to do with any element of the robbery charge, except the forbidden (albeit perhaps the most illuminating) realm of character and propensity for violent crimes." Head, supra, 253 Ga. at 431(2), 322 S.E.2d 228. In so holding, we specifically anticipated and found distinguishable a murder case, such as this, wherein the possession charge would be related to the other counts of the indictment, since it might plausibly become the underlying felony to support a felony murder conviction on the malice murder count. Accordingly, a holding that it was not error to deny appellant's bifurcation motion in this murder case is not only consistent with, but also is compelled by, the decision in Head. Head will continue to remain viable authority for the principle that a bifurcation motion should be granted in those cases wherein the possession charge is unrelated to another count in the indictment. A murder case, such as this, is not one of those cases. It follows that the trial court correctly denied appellant's bifurcation motion.

3. On voir dire, the trial court did not abuse its discretion in refusing to allow appellant to ask whether the prospective jurors had previous personal experience in "collecting debts" which involved "hounding" and "threaten[ing] to kill" the debtor. Cobb v. State, 244 Ga. 344, 349(5), 260 S.E.2d 60 (1979); Pinion v. State, 225 Ga. 36, 37(4), 165 S.E.2d 708 (1969).

4. Appellant was not allowed to testify that, three hours before the fatal shooting, the victim claimed to have killed someone. The trial court's refusal to allow appellant to give this testimony is enumerated as error.

If the defendant in a murder case makes a prima facie case for justification, he is entitled to offer evidence of the victim's general reputation for violence. Bennett v. State, 254 Ga. 162, 164(3)(a), 326 S.E.2d 438 (1985). However, such evidence must comport with the general rules of admissibility. Assuming without deciding that appellant's proposed testimony would relate to the victim's general reputation for violence, it nevertheless was clearly hearsay. Mallory v. State, 261 Ga. 625, 627(2), 409 S.E.2d 839 (1991). Appellant urges that his proposed testimony would constitute admissible hearsay under OCGA § 24-3-3, since the previous claim attributed to the victim was a part of the res gestae of appellant's subsequent fatal shooting of the victim. However, the trial court found that the three-hour gap between the alleged claim by the victim and the...