Reed v. State, S12A0443.

CourtSupreme Court of Georgia
Citation727 S.E.2d 112,291 Ga. 10,12 FCDR 1546
Docket NumberNo. S12A0443.,S12A0443.
PartiesREED v. The STATE.
Decision Date24 April 2012


Kevin Christopher Armstrong, Albany, for appellant.

Gregory W. Edwards, District Attorney, Kathryn O. Fallin, Assistant District Attorney, Paula Khristian Smith, Senior Assistant Attorney General, Samuel S. Olens, Attorney General, Clint Christopher Malcolm, Assistant Attorney General, for appellee.

CARLEY, Presiding Justice.

Roger James Reed was indicted for the malice murder of Willie Lee Gatson, an alternative count of felony murder during the commission of aggravated assault, and the aggravated assault and aggravated battery of Gatson's sister Nettie Porter. After a jury trial, Reed was acquitted of malice murder and found guilty of the remaining counts. The trial court entered judgments of conviction on the guilty verdicts, sentenced Reed as a recidivist under OCGA § 17–10–7(c) to life imprisonment without the possibility of parole for felony murder, and also imposed a concurrent 20–year term for aggravated assault and a consecutive 20–year term for the aggravated battery. A motion for new trial was denied, but the trial court vacated the sentence for aggravated assault pursuant to a concession by the State. Reed appeals, understandably raising no error regarding the vacated sentence. See Hill v. State, 290 Ga. 493, 722 S.E.2d 708 (2012).*

1. Construed most strongly in support of the verdicts, the evidence shows that Reed began arguing with Gatson during a party at the victims' residence and began fighting with him afterwards. When Ms. Porter intervened in a second attempt to make Reed leave, she grabbed a hatchet to scare him away. Reed took the hatchet from her and struck the victims repeatedly on the head and face, fatally injuring Gatson and severely injuring and disfiguring Ms. Porter. Reed fled and, two blocks away, asked a police officer if he was there because of those people getting beat up.’ Reed also lied to the officer when he identified his residence and when he stated that his brother was known by the nickname that Ms. Porter had used to identify her attacker. Subsequently, Reed, who was very excited and upset, told his brother that he had messed up and hit somebody with something. When Gatson's nephew later saw Reed with scratches on his neck and blood on his shirt and hair, Reed yelled and denied the crimes. The next day, Reed again saw Gatson's nephew, stated that he was just defending himself, and started to run when the police arrived. Ms. Porter identified Reed as the assailant both before and during trial. This evidence was sufficient to enable a rational trier of fact to find Reed guilty beyond a reasonable doubt of the felony murder of Gatson and the aggravated battery of Ms. Porter. Jackson v. Virginia, 443 U.S. 307, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979); Swanson v. State, 282 Ga. 39, 40–41(1), 644 S.E.2d 845 (2007); Rich v. State, 274 Ga. 695, 558 S.E.2d 720 (2002).

2. Reed contends that the felony murder count of the indictment failed to allege the essential elements of the predicate offense of aggravated assault and that it therefore is fatally deficient or insufficient as a matter of law and is void. This contention

“is, in essence, a special demurrer seeking greater specificity with regard to the predicate felony. [Reed's] failure to file [a] special demurrer seeking additional information before pleading not guilty to the indictment constitutes a waiver of his right to be tried on a perfect indictment. (Cits.) [Cit.]

Edmond v. State, 283 Ga. 507, 509–510(5), 661 S.E.2d 520 (2008).

Moreover, the allegations as to the predicate offense of aggravated assault were sufficient. Reed argues that although the felony murder count alleged the use of a hatchet, that tool is not per se a deadly weapon, and the indictment did not allege that it was being used as such. However, that count alleged that Reed “did, while in the commission of a felony, to wit: Aggravated Assault, cause the death of ... Gatson, a human being, when said accused struck the victim on the head with a hatchet....” In charging aggravated assault with a deadly weapon under OCGA § 16–5–21(a)(2), it is sufficient for the indictment implicitly to allege the use of a deadly weapon or an object which is likely to cause serious bodily injury when used offensively. Morgan v. State, 275 Ga. 222, 226–227(9), 564 S.E.2d 192 (2002); Borders v. State, 270 Ga. 804, 807–808(1), 514 S.E.2d 14 (1999). Compare Smith v. Hardrick, 266 Ga. 54, 55–56(3), 464 S.E.2d 198 (1995) (a non-homicide case where the indictment alleged only that defendant placed his hands around the victim's neck and used them to apply pressure). The felony murder count here implicitly alleged the use of a hatchet as a weapon which, when used offensively, is likely to result in serious bodily injury. Moreover, the allegations of the malice murder count in this case were that Reed “did unlawfully and with malice aforethought cause the death of ... Gatson, a human being, when he struck the victim on the head with a hatchet....” These allegations themselves sufficiently put the defense on notice that Reed was accused of causing Gatson's death by committing an aggravated assault against him. Scott v. State, 276 Ga. 195, 196–197(2), 576 S.E.2d 860 (2003); Borders v. State, supra.

3. Reed further contends that the trial court erred in admitting evidence of a similar transaction from 2000 showing that Reed, who was breaking up with his girlfriend, got into an argument with her, picked up a stick from a yard, and hit her with it, injuring her lips and face. Under Williams v. State, 261 Ga. 640, 642(2)(b), 409 S.E.2d 649 (1991), before such evidence is admissible,

“the trial court must determine that the State has affirmatively shown that: (1) the State seeks to admit evidence of the independent offenses or acts for an appropriate purpose; (2) there is sufficient evidence that the accused committed the independent offenses or acts; and (3) there is sufficient connection or similarity between the independent offenses or acts and the crimes charged so that proof of the former tends to prove the latter.” [Cits.]

Harvey v. State, 284 Ga. 8–9(2), 660 S.E.2d 528 (2008).

Because the parties state the standard of appellate review in unclear or conflicting ways, we first examine what standard of review is applicable to the trial court's admission of similar transaction evidence. In this regard, the standard of review has not been stated consistently by either this Court or the Court of Appeals. See Avila v. State, 289 Ga. 409, 411(2), 711 S.E.2d 706 (2011) (“ ‘We will uphold the trial court's decision to admit a similar transaction unless it is an abuse of discretion.’ [Cit.]”); Payne v. State, 285 Ga. 137, 138, 674 S.E.2d 298 (2009) (“The decision of a trial court to admit evidence of similar transactions will be upheld unless clearly erroneous. [Cit.]); Goss v. State, 312 Ga.App. 676, 677, 719 S.E.2d 561 (2011) (“ ‘We review the trial court's determination that the similar transaction evidence was admissible under an abuse of discretion standard.’ [Cit.]”); Smith v. State, 304 Ga.App. 708, 709(1), 699 S.E.2d 742 (2010) (We will uphold a trial court's decision to admit similar transaction evidence unless it is clearly erroneous. [Cit.]).

Such precedent is inconsistent because the “abuse of discretion” standard is not identical to the “clearly erroneous” standard. In Georgia, it is well-settled that the “clearly erroneous” standard for reviewing findings of fact is equivalent to the highly deferential “any evidence” test. Patel v. Patel, 285 Ga. 391, 392(1)(a), 677 S.E.2d 114 (2009); Delbello v. Bilyeu, 274 Ga. 776, 777(1), 560 S.E.2d 3 (2002); Turpin v. Todd, 271 Ga. 386, 390, 519 S.E.2d 678 (1999); Hall v. Ault, 240 Ga. 585, 242 S.E.2d 101 (1978); Brenntag Mid South v. Smart, 308 Ga.App. 899, 902(2), 710 S.E.2d 569 (2011); Shook v. State of Ga., 221 Ga.App. 151, 152, 470 S.E.2d 535 (1996); Jones v. State, 146 Ga.App. 88, 90, 245 S.E.2d 449 (1978) (the phrase “clearly erroneous” “should not be given varying meanings depending on the type case in which” it appears). Balkcom v. Vickers, 220 Ga. 345, 348(1)(i), 138 S.E.2d 868 (1964), which compares the “any evidence” standard with federal standards of review, is hereby overruled to the extent that it implies that, in Georgia, the “any evidence” rule differs from the “clearly erroneous” standard. However, where a determination by the trial court involves an exercise of discretion, the standard of review is “abuse of discretion,” which is at least slightly less deferential than the “any evidence” test. Beasley v. Paul, 223 Ga.App. 706–707(1), 478 S.E.2d 899 (1996) (discussing difference between a motion for directed verdict or for j.n.o.v. and a motion for new trial); McFadden, Brewer & Sheppard, Ga. Appellate Practice § 20:12 (2011–2012 ed.). See also Jones v. Brown, 299 Ga.App. 418, 419, 683 S.E.2d 76 (2009) (although “abuse of discretion”‘is a deferential standard of review, it is not toothless'). By deduction, therefore, the “abuse of discretion” standard is different from and not quite as deferential as the “clearly erroneous” test.

Furthermore, [s]ometimes the appellate courts find it necessary to use more than one standard of review to evaluate a single trial-court ruling. [Cit.] McFadden, supra. Thus, in various contexts, we accept factual findings unless they are clearly erroneous and review a trial court's ultimate decision on the particular issue for abuse of discretion. Smith v. State, 287 Ga. 391, 402(3), 697 S.E.2d 177 (2010); Lawrence v. Lawrence, 286 Ga. 309, 310(1), 687 S.E.2d 421 (2009). See also Hamlin v. Ramey, 291 Ga.App. 222, 225(1), 661 S.E.2d 593 (2008). The Court of Appeals has often done the same thing with respect to similar transaction evidence:

When reviewing the trial court's factual findings regarding whether the state satisfied the three-prong test [mandated by...

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