Lindsey v. State

• Decision Date: 08 January 1993
• Docket Number: No. S92A1221,S92A1221
• Citation: 424 S.E.2d 616,262 Ga. 665
• Parties: LINDSEY v. The STATE.
• Court: Georgia Supreme Court

Page 616

424 S.E.2d 616

262 Ga. 665

LINDSEY v. The STATE.

No. S92A1221.

Supreme Court of Georgia.

Jan. 8, 1993.

Nancy M. Markle, Atlanta, for Lindsey.

Lewis R. Slaton, Dist. Atty., Michael J. Bowers, Atty. Gen., Penny A. Penn, Asst. Dist. Atty., Atlanta, for the State.

Nancy A. Grace, Asst. Dist. Atty., Atlanta.

Susan V. Boleyn, Senior Asst. Atty. Gen., Dept. of Law, Peggy R. Katz, Staff Atty., Atlanta, for other interested parties.

BENHAM, Justice.

Appellant was indicted for the malice murder, the felony murder, and the aggravated assault of Terry Walker, and the aggravated assaults of Farren Harris and Arnold Leslie. ¹ The jury found appellant guilty of voluntary manslaughter, felony murder, and the three counts of aggravated assault. ² At sentencing, the trial court merged the convictions for voluntary manslaughter and the aggravated assault of Terry Walker into the felony murder conviction, and sentenced appellant for felony murder and two counts of aggravated assault.

The State presented evidence that appellant fired an Uzi 9mm semi-automatic weapon into the air down the street from Harris' apartment as Harris' birthday party came to an end. Before leaving the scene, appellant fired the weapon "up the street," causing the exiting party guests to seek cover. Some time later, Leslie, Harris' brother, put Walker, an intoxicated party-goer, in the back seat of Leslie's car in order to take him home. Harris accompanied Leslie, who decided to drive in a direction opposite that in which appellant had retreated. Nevertheless, Harris saw appellant shoot at their car as they were driving. The rear window was shattered and Walker was fatally wounded by the bullet fired by appellant.

1. Citing Edge v. State, 261 Ga. 865, 414 S.E.2d 463 (1992), appellant contends the trial court erred when it merged the convictions for voluntary manslaughter and aggravated assault of the decedent into the felony murder conviction. In Edge, we held that a guilty verdict on a felony murder charge cannot stand where the jury also finds the defendant guilty of voluntary manslaughter with regard to the same homicide, and the underlying felony supporting the felony murder conviction is the aggravated assault that caused the decedent's death. In the case at bar, the jury found appellant guilty of three aggravated assaults and were not required by the trial court to set forth which aggravated assault served as the basis for the felony murder conviction. ³ Because the count of the indictment charging felony murder only specified the underlying felony as "aggravated assault," we are unable to determine whether the jury used the aggravated assault of the decedent as the underlying felony, which would require vacation of the felony murder conviction and affirmance of the voluntary manslaughter conviction, or whether the jury relied upon either of the aggravated assaults perpetrated against the surviving victims.

All parties agree that appellant cannot be convicted of both felony murder and voluntary manslaughter since there is only one homicide. Since the defendant is entitled to the benefit of the doubt in the construction of an ambiguous verdict (Rainwater v. State, 260 Ga. 807(2), 400 S.E.2d 623 (1991)), we conclude that the jury based its felony murder verdict on the aggravated assault of the decedent, and remand the case in order that the felony murder conviction and sentence be vacated, the voluntary manslaughter conviction be reinstated, and appellant be sentenced thereon. Edge v. State, supra. But see Blankenship v. State, 247 Ga. 590(2), 277 S.E.2d 505 (1981).

2. Appellant's remaining enumerations of error contend that the trial court erred when it failed to give requested charges on accident, reckless conduct, and involuntary manslaughter.

a) A charge on accident is not appropriate where, as here, appellant admitted he deliberately fired the gun. Scott v. State, 261 Ga. 611(1), 409 S.E.2d 511 (1991). Compare Turner v. State, 262 Ga. 359(2b), 418 S.E.2d 52 (1992) (where the defendant testified that his weapon accidentally discharged while he was defending himself).

b) Appellant's request for a reckless conduct charge was based on his testimony that, when he fired at the car containing the three victims, he did not intend to shoot anyone other than the person shooting at him. Reckless conduct is an act of criminal negligence, rather than an intentional act, that causes bodily harm or endangers the bodily safety of another. Bowers v....