Miller v. State
| Decision Date | 28 October 2002 |
| Docket Number | No. S02A0626.,S02A0626. |
| Citation | 571 S.E.2d 788,275 Ga. 730 |
| Parties | MILLER v. The STATE. |
| Court | Georgia Supreme Court |
OPINION TEXT STARTS HERE
Bruce S. Harvey, Larry D. Wolfe, Michael B. Syrop, Atlanta, for appellant.
Garry T. Moss, Dist. Atty., Rosemary Kittrell, Asst. Dist. Atty., Thurbert E. Baker, Atty. Gen., Wylencia H. Monroe, Asst. Atty. Gen., for Appellee.
Appellant Jonathan Miller appeals his convictions for felony murder, aggravated assault and aggravated battery, and his resulting life sentence.1 Having reviewed the record and the transcript of trial, we conclude that the superior court properly exercised jurisdiction over this case, that the evidence was sufficient to support the jury's verdicts, that the trial court did not abuse its discretion in ruling on the eligibility of prospective jurors, and that there was no prosecutorial misconduct during closing arguments. Having found no error associated with appellant's trial and conviction, we affirm.
The evidence authorized the jury to conclude that in November 1998, appellant Jonathan Miller, then 15 years old, rode home on the school bus while seated behind 13-year-old Joshua Belluardo. Appellant had previously taunted and bullied Joshua. On this particular day, appellant sat behind Joshua and threw items at him. Joshua told appellant to stop, and appellant responded by taunting Joshua, calling him names such as "bitch" and "faggot," and challenging Joshua to a fight. When the bus stopped, appellant asked rhetorically whether he should hit Joshua on the back of the head or in the face. Joshua then quickly exited the school bus and appellant followed. Approaching Joshua from behind, appellant hit him with his fist on the back of the head. Joshua collapsed to the ground. Appellant again struck Joshua and kicked him once, then fled the scene.
After being struck, Joshua moaned and had extreme difficulty breathing. A bystander attempted to roll him over, and he stopped breathing altogether. When medical personnel arrived and administered CPR, Joshua resumed breathing and regained a regular pulse. He was taken to the hospital, but he never regained consciousness. Doctors later determined that when appellant struck Joshua on the back of his head, he created a tear in Joshua's vertebral artery, causing blood to flood into Joshua's brain and spinal column. A neurosurgeon later opined that when Joshua arrived at the hospital, his brain had ceased normal functioning. Two days later, Joshua was removed from life support and pronounced dead.
Appellant was originally charged in the juvenile court with aggravated assault and aggravated battery. After Joshua died, appellant was charged with felony murder based upon those same two crimes. The juvenile complaint was then dismissed, and the superior court took jurisdiction of the case for bond purposes. Five weeks later, appellant was indicted in superior court for felony murder, aggravated assault and aggravated battery. Appellant was tried in the superior court, convicted of all three crimes, and sentenced to life in prison.
1. The evidence introduced at trial, viewed in a light most favorable to the jury's verdict, was sufficient to enable rational triers of fact to find appellant guilty beyond a reasonable doubt of felony murder, aggravated assault, and aggravated battery.2
Contrary to appellant's argument, causing brain loss does fit the statutory definition of aggravated battery, which is defined as "maliciously caus[ing] bodily harm to another by depriving him or her of a member of his or her body, [or] by rendering a member of his or her body useless."3 The indictment in this case alleged that appellant committed aggravated battery by rendering Joshua's brain useless and by depriving Joshua of his brain. When the evidence shows that a battered victim has suffered a severe injury to their brain, resulting in the loss of normal brain functioning, they are said to have been "deprived of their brain," thus suffering an aggravated battery.4
While appellant is correct that one who "dies instantaneously from the first blow cannot be subject to an aggravated battery," 5 there was evidence at trial from which the jury could have concluded that Joshua did not die instantaneously. The examining pathologist testified that on average, high-volume blood flow into the brain and spinal column, such as was suffered by Joshua, does not cause a cessation in brain functioning for at least 60 seconds. Moreover, witnesses testified that Joshua moaned and gasped for air after being struck, and the attending emergency medical technician testified that after Joshua was resuscitated, he maintained a pulse while being transported to the hospital. Accordingly, the evidence authorized the jury to conclude that Joshua's death was not instantaneous.
The evidence also authorized the jury to find appellant guilty of aggravated assault. A person commits aggravated assault when (among other things) he (1) attempts to commit a violent injury or places another in reasonable apprehension thereof, and (2) assaults another with "a deadly weapon or any object, device, or instrument which, when used offensively against a person, is likely to or actually does result in serious bodily injury."6 Witnesses testified that appellant threatened Joshua with physical harm, approched Joshua from behind and inflicted a fierce blow to the back of his head, causing Joshua to collapse to the ground. Appellant then again struck Joshua and kicked him once. Hence, there was evidence from which the jury could conclude that appellant attempted to inflict a violent injury on Joshua, thus establishing the first of these elements.
As for the other element of aggravated assault, the indictment charged that appellant attacked Joshua with a deadly weapon—i.e., his hands and feet. Although hands and feet are not considered to be deadly weapons per se, the jury may find them to be so depending upon their use, the injuries inflicted, and other surrounding circumstances. 7 Evidence at trial showed that Joshua was hit so hard from behind that his arms flew up in the air as he fell. While there was evidence to indicate that a vertebral artery hemorrhage, such as was suffered by Joshua, can be linked to subtle factors such as head placement and movement, the examining pathologist testified that Joshua's fatal injury was caused by external blunt-force trauma that was, at a minimum, equivalent to a grown man's use of moderate force. In light of this evidence, we conclude the jury was authorized to find appellant guilty of aggravated assault.
2. Pursuant to OCGA § 15-11-28(b)(2)(A), the superior court is vested with exclusive jurisdiction over the trial of young people aged 13 to 17 who are alleged to have committed, among other crimes, murder. Appellant, who was 15 at the time of Joshua's death, argues that because he was accused of felony murder, rather than "murder," his trial did not fall within this jurisdictional mandate, and hence he should not have been tried in the superior court. This argument is unavailing. "Murder is [an] offense which can be committed ... either with malice aforethought or while in the commission of a felony."8 Throughout our Criminal Code, the offenses of felony murder and malice murder are frequently treated together as "murder."9 In these statutes, the term "murder" is consistently construed as applying to both felony and malice murder. As in these other statutes, we believe the legislature's reference to "murder" in the jurisdictional mandate of OCGA § 15-11-28(b)(2)(A) is obviously intended to encompass both felony and malice murder.
3. Six days before voir dire commenced, twelve students and one teacher were killed by two fellow students at Columbine High School in Littleton, Colorado, generating a substantial amount of national and local media coverage. Immediately before voir dire, appellant moved for a continuance, arguing that because of the media's portrayal of the Columbine incident, especially with regard to violence among young people and in schools, there was a reasonable likelihood that appellant would not receive a fair trial.10 A hearing was held on the motion, after which the trial court denied the requested continuance. On appeal, appellant claims that denial was erroneous.11
The denial of a motion to continue will only be reversed when there has been a clear abuse of discretion by the trial court.12 In support of his motion, appellant presented the expert testimony of a jury selection consultant who testified that in his opinion, even though the Columbine incident and the death of Joshua Belluardo were unrelated, the media's coverage of the two incidents had linked them together so as to create an emotional atmosphere that would prevent appellant from receiving a fair trial. When pressed on this opinion, however, the expert conceded that whether a fair trial would be possible depended upon how individual jurors obtained and processed their information concerning the Columbine killings. Moreover, when questioned about the basis for his opinion, the expert conceded that while there was significant coverage of the Columbine High School killings in the local media, he was aware of only one local newspaper article that linked the Columbine incident with appellant's trial, and that particular article simply addressed the fact that defense counsel had moved for a continuance by alleging that a fair trial could not be obtained due to the events at Columbine.13 Furthermore, the expert admitted that he had performed no assessment of community attitudes in the wake of the Columbine killings to determine if there was any indication of a pervasive and emotionally-charged environment that would interfere with appellant's fair trial rights.
In light of these factors, and having reviewed the transcripted hearing on appellant's motion, we conclude his argument that ...
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