Priester v. State.
| Decision Date | 29 June 2020 |
| Docket Number | S20X0445,S20A0444 |
| Citation | 309 Ga. 330,845 S.E.2d 683 |
| Court | Georgia Supreme Court |
| Parties | PRIESTER v. The STATE. The State v. Priester. |
David T. Lock, David T. Lock, LLC, P.O. Box 14286, Savannah, Georgia 31416, for Appellant in S20A0444.
Patricia B. Attaway Burton, Paula Khristian Smith, Christopher M. Carr, Alex Martin Bernick, Department of Law, 40 Capitol Square, S.W., Atlanta, Georgia 30334, Margaret Ellen Heap, Noah Jared Abrams, Office of the District Attorney Eastern Judicial Circuit, P. O. Box 2309, 133 Montgomery Street Suite 600, Savannah, Georgia 31401, for Appellee in S20A0444.
Noah Jared Abrams, Margaret Ellen Heap, Office of the District Attorney Eastern Judicial Circuit, 133 Montgomery Street Suite 600, P. O. Box 2309, Savannah, Georgia 31402, Christopher M. Carr, Paula Khristian Smith, Patricia B. Attaway Burton, Department of Law, 40 Capitol Square, S.W., Atlanta, Georgia 30334, for Appellant in S20X0445.
David T. Lock, David T. Lock, LLC, P.O. Box 14286, Savannah, Georgia 31416, for Appellee in S20X0445.
Vernon Priester was tried by a Chatham County jury and convicted of murder and other crimes in connection with the fatal shooting of Akhil Heyward and the wounding of Heyward's parents.1 Priester appeals, asserting that the trial court erred when it admitted the testimony of two witnesses about Priester dealing drugs. The State cross-appeals, contending that the trial court erred when it merged two counts of attempted murder into two counts of aggravated battery involving the same victims. We affirm in the main appeal, and in the cross-appeal, we reverse and remand for resentencing.
1. Viewed in the light most favorable to the verdict, the evidence presented at trial shows that on the morning of March 16, 2016, Heyward and his girlfriend, Charmaine Mobley, met with Priester at the house that Heyward shared with his parents, Louis Heyward and Traci Taylor. Priester asked Heyward how much marijuana he had, pulled out a gun, and told Heyward and Mobley to get down on the ground. They both tried to run away, but Priester fired several shots at Heyward as he attempted to flee out the front door, fatally wounding Heyward. Heyward's parents and Mobley then attempted to restrain Priester, and as they struggled with him, he fired additional shots, wounding both of Heyward's parents.
Although Priester does not challenge the legal sufficiency of the evidence, we have independently reviewed the record, and we conclude that the evidence presented at trial was sufficient to authorize a rational trier of fact to conclude beyond a reasonable doubt that Priester is guilty of the crimes of which he was convicted. See Jackson v. Virginia, 443 U.S. 307, 319 (III) (B), 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979).
2. In his sole claim of error, Priester contends that the trial court erred when it denied his pretrial motion to exclude the testimony of Christopher Cason and Tyrone Gadson, both of whom testified about Priester engaging in the business of dealing drugs. Their testimony was not admissible, Priester claims, because it was neither evidence intrinsic to the crimes charged nor evidence of other acts admitted for a proper purpose under OCGA § 24-4-404 (b). We conclude, however, that this testimony was intrinsic evidence, and we see no abuse of discretion in its admission. See McCray v. State, 301 Ga. 241, 249, 799 S.E.2d 206 (2017).
As we have explained before:
Williams v. State, 302 Ga. 474, 485-486, 807 S.E.2d 350 (2017) (citations and footnote omitted). At trial, Cason testified that he had known Priester for nearly a year prior to the fatal shooting of Heyward and that he had purchased drugs (including marijuana and heroin) from Priester. Cason explained that Priester's drug-dealing business had slowed around the time of the shooting. On the day of the shooting, Cason said, Priester texted Cason and asked if he knew anyone whom Priester could "pull a lick off on." Cason explained that "a lick" is slang for a robbery. Gadson likewise testified that he had purchased drugs from Priester and that Priester's drug-dealing business slowed around the time of the shooting. Gadson also testified that he was with Priester on the evening before the shooting but had no involvement in the shooting.
The trial court did not abuse its discretion when it admitted the testimony of Cason and Gadson because that evidence was intrinsic to the crimes with which Heyward was charged. That Priester's drug dealing had slowed around the time of the shooting was relevant to understanding his motive to attempt a robbery of Heyward. Moreover, that Priester had sold drugs to both witnesses was an integral and natural part of their accounts of the circumstances surrounding the shooting. See McCammon v. State, 306 Ga. 516, 522 (2), 832 S.E.2d 396 (2019) () (citation and punctuation omitted); Pike v. State, 302 Ga. 795, 801 (4), 809 S.E.2d 756 (2018) ().
3. In its cross-appeal, the State argues that the trial court erred when it merged the attempted murders of Heyward's parents into the aggravated batteries upon them. We agree.
A person commits aggravated battery when he "maliciously causes bodily harm to another by depriving him or her of a member of his or her body, by rendering a member of his or her body useless, or by seriously disfiguring his or her body or a member thereof." OCGA § 16-5-24 (a). An aggravated battery is punishable by imprisonment for up to 20 years. See OCGA § 16-5-24 (b). A person commits attempted murder when, with intent to "unlawfully and with malice aforethought ... cause the death of another human being," OCGA § 16-5-1 (a), he "performs any act which constitutes a substantial step toward the commission of [murder]." OCGA § 16-4-1. Attempted murder is punishable by imprisonment for up to 30 years. See OCGA § 16-4-6 (a). One crime is included in another if "[i]t differs from the crime charged only in the respect that a less serious injury or risk of injury to the same person, property, or public interest or a lesser kind of culpability suffices to establish its commission." OCGA § 16-1-6 (2).2
No one disputes in this case in which each of the attempted murders and each of the aggravated batteries is predicated upon the same conduct—the shooting and wounding of each of Heyward's parents—that the attempted murders and aggravated batteries merge. They disagree, however, about which crime merges into the other. According to the State, the attempted murders are the greater offense, and the aggravated batteries merge into the attempted murders. Priester, on the other hand, argues that the trial court was right to merge the attempted murders into the aggravated batteries.
In resolving this merger issue, the trial court was bound by precedents in which our Court of Appeals held that, in a case like this one, an attempted murder merges into an aggravated battery. In Hernandez v. State, 317 Ga. App. 845, 733 S.E.2d 30 (2012), the Court of Appeals reasoned that "attempted murder requires a less serious injury to the person [than aggravated battery], as personal injury is not a required element of attempted murder," and it concluded that an attempted murder is, therefore, a lesser offense than aggravated battery for purposes of merger under OCGA § 16-1-6 (2). 317 Ga. App. at 852 (3), 733 S.E.2d 30. Although the Court of Appeals acknowledged in a subsequent decision that an attempted murder involves the risk of an injury (death) that is more serious than the actual injury required for an aggravated battery, it declined to revisit and instead reaffirmed Hernandez. See Zamudio v. State, 332 Ga. App. 37, 48, 771 S.E.2d 733 (2015). See also Dobbs v. State, ––– Ga. App. –––– (3) (b), ––– S.E.2d ––––, 2020 WL 2507502 (Case No. A20A0738 decided May 15, 2020) (). The State urges that Hernandez and its progeny were wrongly decided, and we agree.
Whether the risk of death that is inherent in conduct that amounts to a "substantial step" toward the commission of a murder is more or less serious than the actual bodily harm that is inherent in an aggravated battery is a question...
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