Prater v. State
| Decision Date | 08 February 2001 |
| Docket Number | No. S00A1684-S00A1686. |
| Parties | PRATER v. The STATE. Thomas v. The State. Tomlinson v. The State. |
| Court | Georgia Supreme Court |
OPINION TEXT STARTS HERE
Cauthorn & Phillips, Thomas E. Cauthorn, III, Marietta, for appellant (case no. S00A1684).
Marc D. Cella, Marietta, for appellant (case no. S00A1685).
Alan J. Baverman, Atlanta, for appellant (case no. S00A1686).
Patrick H. Head, Dist Atty., Maria B. Golick, Eleanor E. Kornahrens, Asst. Dist. Attys., Thurbert E. Baker Atty. Gen., Paula K. Smith, Senior Asst. Atty., Gen., for appellant.
After appellants were convicted of felony murder based upon armed robbery and also convicted of aggravated assault,1 the trial court held that they were entitled to a new trial due to: (1) insufficient evidence to support the felony murder convictions, and (2) an erroneous jury instruction. Thereafter, on the State's motion, the trial court vacated its findings that there was insufficient evidence to support the felony murder convictions, and amended the new trial order to hold that appellants were entitled to a new trial due only to an erroneous jury instruction. The trial court then denied appellants' motions in autrefois acquit and pleas of double jeopardy. Appellants appeal from that ruling. We conclude that the evidence of record fails to support appellants' convictions for felony murder based upon armed robbery, and that Double Jeopardy attaches to the State's announced effort to retry appellants for that crime and for felony murder based upon criminal attempt to commit armed robbery. Therefore, we must reverse.
The evidence of record shows that appellants discussed robbing a Little Caesar's Pizza restaurant. Thereafter, appellants proceeded to the restaurant and knocked on the back door, carrying with them a 12-gauge shotgun and a red pizza delivery bag. Jonathan Tripp, an employee of the restaurant, responded to the knocks, believing them to be from a friend. When Tripp opened the door, the shotgun was discharged, killing Tripp and injuring restaurant employee Kyle Parenteau. Appellants then fled the scene. It is indisputable that there is no evidence of record to indicate that any money or valuables were taken from the restaurant, or that any of the appellants entered the restaurant premises after the fatal shot was fired.
Appellants were jointly indicted for one count of malice murder; two counts of felony murder—based upon armed robbery and aggravated assault, respectively; and aggravated assault. At appellants' trial, the court specifically asked the State if it wanted the jury to be given a charge on attempted armed robbery. At first, the State declined to have this charge given to the jury, but it later filed an amended request to add the charge. Eventually, though, the State announced that it was withdrawing its request to charge the jury on attempted armed robbery, and for that reason, the charge was not given by the trial court.
All three appellants were found guilty of felony murder, with armed robbery as the underlying felony. All three appellants were found not guilty of malice murder and felony murder based upon aggravated assault. Appellants Prater and Tomlinson were found guilty of aggravated assault. Appellant Thomas was found not guilty of aggravated assault.
On appellants' motion, the trial court granted a new trial on two grounds: (1) the evidence did not support the convictions for felony murder based upon armed robbery; and (2) the jury did not receive correct instructions to establish felony murder convictions based upon a lesser included offense. The State sought reconsideration of the new trial ruling, and the trial court vacated its finding of insufficient evidence to support the felony murder convictions, but reaffirmed the granting of a new trial due to the inadequate jury instruction. Thereafter, appellants filed a motion in autrefois acquit and an accompanying plea of Double Jeopardy. The trial court denied the motion and the plea, and appellants now appeal to this Court.
1. As was initially found by the trial court, our review of the record requires us to conclude that there was insufficient evidence upon which to convict appellants of felony murder based upon armed robbery.2 Armed robbery is committed when, with the intent to commit theft, one takes property from another by the use of an offensive weapon.3 The distinguishing characteristic of an armed robbery is the taking of another's property by the use of force or intimidation.4 Because a taking or a theft is an essential element of armed robbery,5 it must be established in order to prove that an armed robbery occurred.6
The evidence of record in this matter shows that there was no evidence that a taking or a theft occurred at the time of the murder. There is no evidence to show that the assailants took any money or items from the restaurant or its employees, or even that appellants entered the restaurant, after firing the fatal shot from the doorway threshold. Due to the complete absence of evidence to establish the essential element of a taking or a theft, the State failed to carry its burden of proving beyond a reasonable doubt that appellants committed the underlying felony of armed robbery. 7
Because armed robbery served as the sole predicate for appellants' felony murder convictions, the State's failure to prove armed robbery must necessarily result in the setting aside of appellants' felony murder convictions. Without sufficient evidence to support a finding that appellants committed armed robbery, the evidence also fails to support the convictions for felony murder based upon armed robbery.8
2. The State urges that appellants' felony murder convictions should be affirmed because under the facts of this case, criminal attempt to commit armed robbery may serve as the underlying felony.9 The State argues that the evidence of record shows beyond a reasonable doubt that appellants committed the underlying offense of criminal attempt to commit armed robbery. Pretermitting whether the evidence of record would support a conclusion that appellants were attempting to commit armed robbery when Jonathan Tripp was killed, we must disagree with the State's assertion that appellants' felony murder convictions can be affirmed based upon attempted armed robbery.
As pointed out by the State, our case law provides that:
[A] felony which is an included offense of another felony which is charged in an indictment may constitute the underlying felony upon which felony murder may be grounded, given adequate proof and correct jury instructions. Correct jury instructions must identify the included offense as a felony, and must specify its essential elements, as well as the elements of felony murder.10
This principle does not, however, support the State's argument that criminal attempt to commit armed robbery can support appellants' felony murder convictions. Contrary to the State's argument, the trial court's charge to the jury in this matter did not include a correct instruction on criminal attempt to commit armed robbery. The State urges that the trial court's instruction to the jury that,"[a] homicide is committed in the carrying out of a felony when it is committed by the accused while engaged in the performance of any act required for the full execution of the felony," was an adequate charge on criminal attempt to commit armed robbery. Quite to the contrary, this instruction is taken almost verbatim from the Suggested Pattern Jury Instruction concerning murders that are committed during the commission of a felony.11 Thus, it is simply not the case in this matter that the trial court's charge, while not expressly instructing on attempted armed robbery, otherwise included the principles that form the foundation of that particular crime.12 Because an adequate charge on criminal attempt to commit armed robbery was not given to the jury, that crime cannot serve as a basis for appellants' felony murder convictions.
3. The record shows that the trial court inquired whether the State wished the jury to be charged on criminal attempt to commit armed robbery. After initially declining the charge, the State requested that the charge be given, and then changed its tactic and specifically asked that the trial court not charge the jury on attempted armed robbery. The transcript does not reveal the State's reason for withdrawing it request to charge. However, regardless of why the State elected not to have the jury charged on attempted armed robbery, our case law states that a party to a criminal prosecution will not be heard to complain about the failure to charge a lesser included offense that is not alleged in the bill of indictment unless a timely written request to make such a charge is submitted to the trial court.13 Thus, by failing to request an adequate instruction on attempted armed robbery from the trial court, the State has waived all claims on appeal relative to the instruction's omission from the trial court's overall charge.
4. Contrary to the position urged by Justice Carley's dissent, the State is constitutionally estopped from retrying appellants for felony murder based upon attempted armed robbery. Because the Georgia Code "extend[s] the Double Jeopardy proscription beyond that provided for in the United States and Georgia Constitutions,"14 all "questions of Double Jeopardy in Georgia must be determined under OCGA §§ 16-1-6, 16-1-8 and 16-1-7."15
Generally speaking, re-prosecution is not barred under the Georgia Code if an initial conviction is reversed on appeal, unless there is a finding on appeal that the evidence did not authorize the verdict.16 It is axiomatic that where an appellate court determines that the evidence at a first trial was insufficient to authorize a guilty verdict, a second prosecution is barred by the Double Jeopardy concerns expressed in our Georgia Code,...
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