Shepherd v. State

• Decision Date: 30 January 2006
• Docket Number: No. S05A1561.,S05A1561.
• Citation: 280 Ga. 245,626 S.E.2d 96
• Parties: SHEPHERD v. The STATE.
• Court: Georgia Supreme Court

280 Ga. 245

Page 96

626 S.E.2d 96

SHEPHERD v. The STATE.

No. S05A1561.

Supreme Court of Georgia.

January 30, 2006.

Reconsideration Denied February 27, 2006.

Gerard Bradley Kleinrock, Decatur, for appellant.

Gwendolyn Keyes Fleming, Dist. Atty., Barbara Blaine Conroy, James Michael McDaniel, Asst. Dist. Attys., Thurbert E. Baker, Atty. Gen., Julie Amanda Adams, Asst. Atty. Gen., for appellee.

Sabrina Denise Rhinehart, James C. Bonner, Jr., Atlanta, for amicus appellant.

THOMPSON, Justice.

Kenneth Fleming Shepherd was tried by a jury for various crimes in connection with the shooting death of his 14-year old half sister, Elizabeth Burgess. The jury found Shepherd not guilty by reason of insanity of malice murder, and guilty but mentally ill of the remaining charges.¹ With regard to the malice murder verdict, the trial court ordered civil commitment pursuant to OCGA § 17-7-131 (d). Shepherd was also sentenced to life imprisonment for felony murder predicated on possession of a firearm by a convicted felon, and to a five-year consecutive term for possession of a firearm during the commission of a crime. The remaining counts were merged for purposes of sentencing.

On appeal, Shepherd asserts that the jury's verdicts of not guilty by reason of insanity of malice murder and guilty but mentally ill of the remaining counts are mutually exclusive and cannot stand; that by virtue of his civil commitment and his sentence of life imprisonment he is being punished twice for the same killing in violation of his double jeopardy rights; and that the trial court erred in its instruction to the jury on felony murder. Finding no merit to these contentions, we affirm.²

Shepherd shot and killed Elizabeth in their family home. He walked across the street to a neighbor's house where he called 911 and told the operator that his sister had fallen and needed an ambulance; he then returned home. When an ambulance arrived, Shepherd met two EMTs at his front door. They asked the location of the injured person and the circumstances of the injury. At that point, Shepherd replied that his sister had been shot. They then asked if he knew who shot her, and Shepherd replied, "I did." The EMTs left the house immediately and called for law enforcement assistance. Shepherd met the EMTs in his driveway, and when asked the location of the gun, Shepherd replied that he had thrown it back behind the house. Shepherd also volunteered that his sister had been "sexually harassing" him, and "I did what I had to do." Once law enforcement assistance arrived, the paramedics were able to assess the victim and to confirm that she was dead.

Shepherd was arrested at the scene, and while being placed in a patrol car, he spontaneously told the arresting officer that he shot the victim three times in the back of the head and then threw the gun into the woods. He was transported to the DeKalb County Police Department where he received Miranda warnings, executed a waiver, and gave a statement to the investigating officers. In that interview Shepherd told the officers that he bought a .380 caliber pistol from a man about three months earlier. He stated that his sister had been sexually harassing him, was sexually promiscuous, and had questioned his masculinity. When asked about the circumstances of the shooting, Shepherd stated that his sister "tried to run up behind me [ and] ... assault me" because "I wouldn't have sex with her and her friends"; that she went to the kitchen sink to get a knife with which to attack him; and as she turned toward him, he opened fire striking her at least twice. Shepherd stated that he shot her again in the neck as she was trying to get away; he then pulled her away from the doorway; tossed his pistol in the backyard; and went across the street to call 911. He also disclosed that he had a prior felony conviction for eluding the police. When asked by a detective if he was sorry about the events, Shepherd answered, "No, I think I'm right."

It was established that bullets collected at the scene and those retrieved from the body had been fired from a .380 caliber pistol. One bullet entered the victim's right arm near the shoulder, a second bullet entered the left arm and then reentered through the chest, and a fatal shot was fired through the back of the head. Two weeks later, the weapon used to shoot Elizabeth was found in Shepherd's bedroom concealed in a slit in his mattress.

Shepherd entered a plea of insanity but was found competent to stand trial. At trial, the defense and the State offered conflicting expert testimony as to whether Shepherd was insane at the time of the shooting. The State's forensic psychologist diagnosed Shepherd with schizoaffective disorder and testified that although Shepherd was mentally ill, he was able to distinguish between right and wrong and could thus be held criminally responsible for his conduct. It was also the opinion of that expert that at the time of the shooting Shepherd was suffering from a long-held delusion that his sister and her friends were sexually harassing him; however, this delusion did not relieve him of criminal responsibility because it was not related to the shooting, did not overmaster his will, and would not have justified his actions had it been true. The expert also testified Shepherd told her he knew he should not have a gun because he was a convicted felon.

The defense presented testimony from a neuropsychiatrist who diagnosed Shepherd as suffering from paranoid schizophrenia, and opined that at the time of the shooting he did not have the mental capacity to distinguish right from wrong in relation to the crime. It was also the opinion of the defense expert that at the time of the shooting Shepherd was operating under a delusional compulsion that his sister was going to attack him with a knife, that this delusion overmastered his will to resist shooting her, and had she actually been attacking him or about to attack him, Shepherd would have been justified in shooting her.

1. Shepherd contends that the jury's verdicts of not guilty by reason of insanity and guilty but mentally ill of the remaining offenses cannot be logically reconciled and, therefore, the verdicts are mutually exclusive.³

"Verdicts are mutually exclusive `where a guilty verdict on one count logically excludes a finding of guilt on the other.'" (Emphasis supplied.) Jackson v. State, 276 Ga. 408, 410(2), 577 S.E.2d 570 (2003), citing United States v. Powell, 469 U.S. 57, 69, n. 8, 105 S.Ct. 471, 83 L.Ed.2d 461 (1984). Thus, the rule against mutually exclusive verdicts applies to multiple guilty verdicts which cannot be logically reconciled; the rule is not implicated where, as here, verdicts of guilty and not guilty are returned. Dumas v. State, 266 Ga. 797(2), 471 S.E.2d 508 (1996).

This Court recently explained the application of the mutually exclusive verdict rule in Jackson, supra and Flores v. State, 277 Ga. 780, 596 S.E.2d 114 (2004). In both cases, we held that convictions for felony murder based on aggravated assault with a deadly weapon and involuntary manslaughter based on reckless conduct were mutually exclusive where the jury could have found that the defendant acted with both criminal intent and criminal negligence at the same time, as such represents a positive, but illogical finding. When a "reasonable probability" exists that two mutually exclusive verdicts have been rendered, the two verdicts cannot stand and a defendant is granted a new trial. Flores, supra at 785(3), 596 S.E.2d 114.

Although Shepherd's argument is couched in terms of "mutually exclusive verdicts," in effect his complaint is that the verdicts of not guilty by reason of insanity and guilty but mentally ill are inconsistent. The inconsistent verdict rule in criminal cases, however, was abolished in this state two decades ago in Milam v. State, 255 Ga. 560(2), 341 S.E.2d 216 (1986), when we adopted the federal standard set forth in United States v. Powell, 469 U.S. 57, 105 S.Ct. 471, 83 L.Ed.2d 461 and Dunn v. United States, 284 U.S. 390, 52 S.Ct. 189, 76 L.Ed. 356 (1932).

" In Powell, the United States Supreme Court rejected `as imprudent and unworkable, a rule that would allow criminal defendants to challenge inconsistent verdicts on the ground that in their case the verdict was not the product of lenity, but of some error that worked against them. Such an individualized assessment of the reason for the inconsistency would be based either on pure speculation, or would require inquiries into the jury's deliberations that courts generally will not undertake.'" Smashum v. State, 261 Ga. 248, 249(2), 403 S.E.2d 797 (1991). Powell also made clear that the inconsistent verdict rule applies to inconsistencies between verdicts of acquittal and verdicts of conviction and has no application to cases involving mutually exclusive multiple convictions. Powell, 469 U.S. at 69, n. 8, 105 S.Ct. 471. We reiterated that principle in Dumas, supra.

In Milam, supra, on facts very similar to the case now before the Court, a criminal defendant was charged with the murders of two victims committed seconds apart. The jury returned a verdict of not guilty by reason of insanity as to one murder, and guilty but mentally ill as to the other, and the defendant challenged the verdicts as inconsistent. This Court affirmed, abolishing the inconsistent verdict rule, id. at 560(2), 341 S.E.2d 216, and ruling that the evidence supports the verdict of guilty but mentally ill. Id. at 560(3), 341 S.E.2d 216. "Likewise, virtually all other Georgia cases affirming Georgia's abolition of the inconsistent verdict rule involve jury verdicts of guilty and not guilty that are alleged to be inconsistent. These cases are in accordance with the principle that it is not generally within the trial court's power to make inquiries into the jury's deliberations, or to speculate about the reasons for any inconsistency between guilty and not guilty...