Lucky v. State

• Decision Date: 08 February 2010
• Docket Number: No. S09A1527.,S09A1527.
• Citation: 286 Ga. 478,689 S.E.2d 825
• Parties: LUCKY v. The STATE.
• Court: Georgia Supreme Court

689 S.E.2d 825

286 Ga. 478

LUCKY v.The STATE.

No. S09A1527.

Supreme Court of Georgia.

February 8, 2010.

Mack & Harris, Robert L. Mack, Stockbridge, for appellant.

Jewell C. Scott, Dist. Atty., Anece B. White, Asst. Dist. Atty., Thurbert E. Baker, Atty. Gen., David A. Zisook, Asst. Atty. Gen., for appellee.

BENHAM, Justice.

AppellantRico Antonio Lucky was convicted of and sentenced for felony murder with armed robbery as the underlying felony, assault with a deadly weapon, and possession of a firearm during the commission of a crime.On appeal, he challenges the sufficiency of the evidence supporting his convictions and takes issue with the trial court's decisions with regard to the guilty verdicts on which sentence was imposed.¹

On July 28, 2004, Edward Rivers, Jr., was fatally shot after answering a knock on the door of the Clayton County apartment he shared with a friend.The friend, in the bathroom when the victim was shot, heard two people rummaging through the apartment after the shooting and discovered his and the victim's wallets were missing after the two intruders left.Neighbors told police they saw two men running from the building where the victim's apartment was located to a green Volkswagen Jetta with damage on one side.AppellantRico Lucky, the owner of a damaged green Jetta, contacted Clayton County police and stated he had visited the apartment complex where the victim lived on the day of the shooting.He also told police that a passenger in his car, DeJuan Curinton,² had told appellant after the shooting that he had shot the victim.Another passenger in Lucky's car testified that he, appellant, and a third man known only as Link had gone to the apartment complex to visit Curinton and to purchase marijuana through him.The passenger also testified that Link and Curinton had gone to the victim's apartment and returned to the car where appellant and the passenger awaited them.A resident of the apartment complex testified that two days before the victim was shot, appellant had admonished the victim for being involved with Curinton's girlfriend; that the night before the shooting, the victim and Curinton had talked in the complex's parking lot and the witness heard the girlfriend's name mentioned; and that, just before the victim was shot, appellant and Curinton talked privately for about five minutes.

Several weeks after Curinton was arrested and charged with murder, appellant was in Sarasota County, Florida, where he flagged down a deputy sheriff and told him he wanted to talk with someone about a Georgia homicide.Appellant told a Sarasota County detective that he had caused the victim's homicide by exploiting a rift between Curinton and the victim, and had used Curinton to do his "dirty work."

1.Appellant maintains the evidence was insufficient to support his convictions because the State presented only the uncorroborated testimony of his co-defendant, which is not sufficient to support a felony conviction (OCGA § 24-4-8), and because the State's evidence only showed appellant's mere presence at the scene of the crimes.Our synopsis of the State's case, in which we construed the evidence in a light most favorable to the verdict, supports a different conclusion.The State's evidence implicating appellant, including appellant's statements to law enforcement officers, was not limited to the testimony of co-defendant Curinton and showed appellant was a party to the crimes in that he intentionally aided and abetted the commission of the crimes and intentionally advised, encouraged, and counseled another to commit the crimes.OCGA § 16-2-20(b)(3), (4).Appellant's "[p]resence, companionship, and conduct before and after [the] offense[s were] committed are circumstances from which participation in the criminal act may be inferred.[Cits.]"Curinton v. State,supra, 283 Ga. at 228-229, 657 S.E.2d 824.The evidence was sufficient to authorize a rational trier of fact to conclude beyond a reasonable doubt that appellant was guilty as a party to the crimes with which he was charged.Jackson v. Virginia,443 U.S. 307, 99 S.Ct. 2781, 61 L.Ed.2d 560(1979).

2.Appellant contends the trial court erred when it sentenced appellant to life imprisonment on one of the two felony murder convictions instead of on the malice murder conviction.Appellant asserts that, had he been convicted and sentenced on the malice murder conviction, all other convictions except possession of a firearm during the commission of a crime³ would have merged as a matter of law into the malice murder conviction.

Appellant is correct in his assertion that the trial court should have sentenced him on the malice murder conviction instead of the felony murder conviction."When the jury returns guilty verdicts on both felony murder and malice murder charges in connection with the death of one person, it is the felony murder conviction, not the malice murder conviction that is `simply surplusage'[cits.], and stands vacated by operation of law."Williams v. State,270 Ga. 125(4), 508 S.E.2d 415(1998).

To determine the validity of appellant's contention that, had he been sentenced for malice murder, the remaining crimes for which he was convicted, other than the firearm possession conviction, would merge into the malice murder conviction, we consider OCGA § 16-1-7(a)andDrinkard v. Walker,281 Ga. 211, 636 S.E.2d 530(2006).The statute provides a defendant with substantive double jeopardy protection by prohibiting multiple convictions and punishments for the same offense (id. at 212, 636 S.E.2d 530), and prohibits a defendant from being convicted of more than one crime if one of the crimes is included in another.OCGA § 16-1-7(a)(1).In the case at bar, the two felony murder convictions are vacated as a matter of law upon a sentence being imposed for the malice murder conviction (Malcolm v. State,263 Ga. 369(4), 434 S.E.2d 479(1993)), and the conviction for aggravated assault (assault with a deadly weapon) for which appellant received a 20-year sentence merges as a matter of fact into the malice murder conviction.Bell v. State,284 Ga. 790(1), 671 S.E.2d 815(2009).The armed robbery conviction, formerly merged into the felony murder/armed robbery conviction for which appellant was sentenced, is available for imposition of sentence because it does not merge into the malice murder conviction as a matter of law or fact.Hutchins v. State,284 Ga. 395, 396, 667 S.E.2d 589(2008).The conviction for aggravated assault with intent to rob, merged by the trial court into the felony murder/armed robbery conviction, is also revived.⁴

With the armed robbery conviction back in play, we apply the "required evidence" test of Drinkard v. Walker to determine if the conviction for aggravated assault with intent to rob merges into the conviction for armed robbery.The "required evidence" test examines whether each offense requires proof of a fact which the other does not.Drinkard v. Walker,supra, 281 Ga. at 215, 636 S.E.2d 530.⁵Armed robbery (OCGA § 16-8-41) requires an intent to rob, the use of an offensive weapon, and the taking of property from the person or presence of another.Aggravated assault with intent to rob (OCGA § 16-8-21(a)) requires an assault upon the victim, with the intent to rob.An assault takes place when a perpetrator either attempts to commit a violent injury to the person of the victim or commits an act which places the victim in reasonable apprehension of immediately receiving a violent injury.

Armed robbery contains a provision, that property be taken, that is not a fact which must be proved in aggravated assault with intent to rob.However, aggravated assault with intent to rob does not contain a provision that is not a fact which must be proved in armed robbery.Both crimes require proof of an...