Kimmel v. State

• Decision Date: 24 May 1991
• Docket Number: No. S91A0296,S91A0296
• Citation: 404 S.E.2d 436,261 Ga. 332
• Parties: KIMMEL v. The STATE.
• Court: Georgia Supreme Court

Page 436

404 S.E.2d 436

261 Ga. 332

KIMMEL v. The STATE.

No. S91A0296.

Supreme Court of Georgia.

May 24, 1991.

Reconsideration Denied June 20, 1991.

Jeffrey B. Talley, Michael W. Lord, Dallas, for Kimmel.

W.A. Foster, III, Dist. Atty., Dallas, Michael J. Bowers, Atty. Gen., Atlanta, Thomas V. Driggers, Asst. Dist. Atty., Dallas, Mary H. Hines, Staff Atty., Atlanta, for the State.

CLARKE, Chief Justice.

Keith David Kimmel was convicted of murder and was sentenced to life imprisonment. ¹ In this appeal he asserts that his trial should have been barred by the constitutional guarantee against double jeopardy, that the trial court erred in refusing to accept the jury's initial verdict and that the trial court erred in failing to respond adequately to the jury's requests for instructions. We find no error and affirm.

Keith Kimmel, Ray Culberson, Richard Harrison and Michael Vance were roommates. Although the roommate arrangement appeared friendly, Kimmel, Culberson and Harrison suspected Vance of being a police informant. They began to plan to kill Vance. On July 28, 1988, Vance disappeared. His body was discovered in October in a wooded area of Paulding County.

After the body was discovered, Culberson began to get nervous and decided to go to the police. At trial Culberson testified that he and Kimmel lured Vance to take a drive with them under the pretense of going to a marijuana field that was ready to harvest. He said that Kimmel strangled Vance while in the car. He and Kimmel then dragged Vance into the woods and Kimmel hacked him with a machete to make sure he was dead. Culberson also admitted that he beat Vance with a billy club. Harrison testified at trial that he was present during the planning of the murder. But, he said that he was not present during the actual deed. He admitted that his car, his billy club and his machete were used to carry out the murder, but by the time he was questioned he had sold the car and the weapons to Kimmel. Culberson and Harrison received favorable plea bargains in exchange for their testimony against Kimmel. Their testimony was corroborated by the testimony of one of Kimmel's co-workers, who said that Kimmel had bragged about "killing a narc."

Kimmel's first trial resulted in a hung jury. After the second trial, the jury was provided with a verdict form with two sections, one that stated, "We the jury find the defendant guilty" and one that stated "We the jury find the defendant not guilty." After deliberating for some time the jury reported that they had reached a verdict. When they returned to the courtroom the foreperson delivered the verdict form on which they had marked out the words "not guilty" and replaced them with the word "undecided." The court told the jury that their verdict was not correct and that they must continue deliberating to select one of the two possible verdicts provided on the form.

The jury continued deliberating. Later, it sent out a note that stated, "We appear to be unable to reach a common decision." On being called into the courtroom, the foreperson expressed that the jury was confused by the definition of murder. The court decided to let the jury go home for the night and to re-charge on the definition of murder in the morning. The next morning, after the court re-charged the jury on the definition of murder, some jurors questioned the court about whether mere knowledge of the crime would be sufficient to convict for murder. The court responded by repeating the charge defining the offense of murder. The court then directed the jury to continue deliberating. Defendant's lawyer objected to the fact that the court did not give direct answers to the jury's questions.

Later, the court called the jury back into the courtroom to inquire whether they were making any progress in their deliberations. The foreperson reported that the vote had not changed since early that morning. The court then re-charged the jury on the law regarding parties to the crime and instructed the jury that "mere association by one with other persons involved in the commission of a crime, without more, will not of itself authorize a jury to find such person guilty of consent in the commission of the crime unless the evidence shows beyond a reasonable doubt that such person aided and abetted in the actual perpetration of the crime or participated in the criminal endeavor." The court proceeded to deliver a full Allen charge and directed the jury to continue deliberating.

Some time later, the jury sent out another note. It asked, "If he knew about the murder, does that make him guilty[?] Or does he have to take part of the actual planning and participation in the actual murder[?]" The trial court responded by giving again, in the exact same language, the charges on "mere association" and "parties to the crime." The court then directed the jury to continue deliberating.

Finally, the jury returned a verdict of guilty. When the jury was polled, however, two jurors responded to the question "Is the verdict your verdict?" by saying "Yes, because he [Kimmel] knew about it." There were no objections to the jury poll. The court dismissed the jury and imposed sentence.

1. Kimmel first argues that his trial was barred by the constitutional guarantee against double jeopardy. He asserts that the evidence presented in his first trial was insufficient to prove venue beyond a reasonable doubt and the judge in the first trial erred in denying his motion for a directed verdict on that ground.

Assuming without deciding that the evidence presented in the first trial was insufficient to prove venue beyond a reasonable doubt, a second trial is not barred by the constitutional guarantee against double jeopardy. The failure to establish venue does not bar re-trial in a court where venue is proper and proven. Beard v. State, 193 Ga.App. 877, 389 S.E.2d 384 (1989); Hernandez v. State, 182 Ga.App. 797, 357 S.E.2d 131 (1987); Patterson v. State, 162 Ga.App. 455, 291 S.E.2d 567 (1982). This is true for two reasons: (1) If a defendant is tried in the wrong venue, that trial court lacks jurisdiction of the offense so that no jeopardy attaches. Schiefelbein v. State, 258 Ga. 623, 373 S.E.2d 354 (1988), cert. denied 489 U.S. 1026, 109 S.Ct. 1156, 103 L.Ed.2d 215 (1989). And, (2) evidence of venue does not go the guilt or innocence of the defendant; insufficient evidence of venue is a trial error that does not bar re-trial under Burks v. United States, 437 U.S. 1, 98 S.Ct. 2141, 57 L.Ed.2d 1 (1978) and its progeny. Patterson, supra, 162 Ga.App. at 457, 291 S.E.2d 567; Ricketts v. Williams, 242 Ga. 303, 248 S.E.2d 673 (1978), cert. denied 439 U.S. 1135, 99 S.Ct. 1059, 59 L.Ed.2d 97 (1979). Thus, even if the first trial was held in the proper venue and the prosecution failed to prove venue beyond a reasonable doubt, re-trial in the same venue is not prohibited.

2. Kimmel next asserts that the trial court erred in failing to accept the jury's first verdict. He contends that the verdict form that stated, "We the jury find the defendant undecided," amounted to an acquittal of the defendant. We disagree. The trial court interpreted the verdict form to mean that the jury was either not unanimous or had not decided yet whether defendant was guilty or not guilty. That interpretation was reasonable and the instruction to continue deliberating was proper. See, e.g., Bearden...