State v. English, No. S02A1808
| Citation | 276 Ga. 343,578 S.E.2d 413 |
| Decision Date | 24 March 2003 |
| Docket Number | No. S02X1809., No. S02A1808 |
| Parties | The STATE v. ENGLISH. English v. State. |
| Court | Supreme Court of Georgia |
OPINION TEXT STARTS HERE
Kenneth W. Mauldin, Dist. Atty., Edward H. Brumby, Jr., Asst. Dist. Atty., for appellant.
Russell C. Gabriel, Athens, for appellee.
Adrian English was charged in a seven-count indictment in connection with the death of his infant son. English was charged with: Count I — malice murder; Count II — felony murder while in the commission of cruelty to children in the first degree; Count III — felony murder while in the commission of aggravated battery; Count — IV felony murder while in the commission of aggravated assault; Count — V cruelty to children in the first degree; Count VI — aggravated battery; and Count — VII aggravated assault. English filed general demurrers to Counts III, IV, VI, and VII and special demurrers with regard to all counts of the indictment.
Following a hearing, the trial court found that English's general demurrers were without basis and denied them. However, the court granted the special demurrers with regard to Counts VII (aggravated assault) and IV (felony murder based on that aggravated assault) and dismissed those charges; it denied the special demurrers as to the remaining counts. In Case No. S02A1808, the State appeals the granting of English's special demurrers to Counts IV and VII of the indictment. In Case No. S02X1809, English files a cross-appeal from the denial of his special demurrers to the remaining counts in the indictment and from the trial court's denial of bail.
1. Citing Smith v. Hardrick, 266 Ga. 54, 464 S.E.2d 198 (1995), the trial court granted English's special demurrers to Counts VII (aggravated assault) and IV (felony murder based on that aggravated assault), after finding that the charges were not sufficiently specific in their description of the manner in which the assault occurred. But this was error because the charges at issue in the present indictment are not fatally flawed as was the aggravated assault charge in Smith v. Hardrick.
OCGA § 17-7-54, setting forth the form of indictment by the grand jury, provides that an indictment is to be deemed "sufficiently technical and correct" if it "states the offense in the terms and language of this Code or so plainly that the nature of the offense charged may be easily understood by the jury." And as this Court stated in Smith v. Hardrick, the fundamental Sixth Amendment principle that criminal defendants must be informed of the nature and cause of the charges against them requires that "a criminal indictment which does not recite language from the Code must allege every essential element of the crime charged," and "each count set forth in an indictment must be wholly complete within itself, and plainly, fully, and distinctly set out the crime charged in that count." Id. at 54-55(1), 464 S.E.2d 198.
The indicted charge of aggravated assault in Smith v. Hardrick accused Hardrick "with the offense of AGGRAVATED ASSAULT for [he] did make an assault upon [the victim] by placing his hands around [her] neck and using his hands to apply pressure to her neck contrary to the law [ ]." Id. at 54, 464 S.E.2d 198. It simply failed to set forth the elements of aggravated assault. See OCGA § 16-5-21.1 That is, it did not state whether Hardrick "placed his hands around the victim's neck in an attempt to use them as a deadly weapon, or in an attempt to rape, rob or murder the victim." Smith v. Hardrick at 56(3), 464 S.E.2d 198. Nor did it indicate that Hardrick intended to inflict a violent injury or place the victim in reasonable apprehension of being violently injured. Id. Thus, if Hardrick pled guilty to the allegations in the indictment, he would not be admitting an aggravated assault. Id. That is not the situation with regard to the allegation of aggravated assault by English against his infant son.
Count IV accuses English of felony murder while in the commission of aggravated assault as alleged in Count VII.
Thus, Counts IV and VII of the indictment against English charge the offense of aggravated assault in the terms and language of OCGA § 16-5-21 and state the offense so plainly that a jury might easily understand the nature of the aggravated assault charged. OCGA § 17-7-54. English argues that he is accused of using his hands in a manner which is not, without additional qualification, unlawful, i.e., that a father shaking his infant son is not per se assaultive behavior or otherwise unlawful; he also urges that the language "by causing [Hunter Alexander English] to be struck by a certain hard surface" renders the charge of aggravated assault insufficient because it does not allege the use of any object at all for the assault, or what the "hard surface" was, or what part of the child's body was struck. But English's arguments overlook the fact that the counts allege that English used his hands as an offensive object, resulting in serious bodily injury to his son. See OCGA § 16-5-21(a)(2). The counts then elaborate upon the manner in which English used his hands as an offensive object, that is, "by shaking [his infant son] with his hands and by causing [the baby] to be struck by a certain hard surface." Compare D'Auria v. State, 270 Ga. 499, 512 S.E.2d 266 (1999).
While the indictment against English does not state that his hands were used as deadly weapons, this omission does not render the charge flawed. In Pye v. State, 274 Ga. 839, 841(4), 561 S.E.2d 109 (2002), this Court explained that "[t]he specific reference to `deadly weapon' in Smith v. Hardrick must be seen as a general reference to the aggravating circumstance in OCGA § 16-5-21(a)(2), which also includes `any object, device, or instrument which, when used offensively against a person, is likely to or actually does result in serious bodily injury....'" (Footnote omitted.) The indictment in this case sets forth both the unlawful assault and the aggravating circumstance. Moreover, it was unnecessary to allege apprehension by the victim as "apprehension is not an essential element of an assault in which it is alleged that the defendant attempted to commit a violent injury upon the victim." Tucker v. State, 245 Ga.App. 551, 553(1), 538 S.E.2d 458 (2000).
Accordingly, Counts IV and VII in the indictment against English were not subject to the special demurrers, and it was error for the trial court to dismiss the charges.
2. English's challenges to the denials of his special demurrers to the remaining counts in the indictment are without merit.
(a) English contends that Count I of the indictment (malice murder) was subject to a special demurrer. It charged English:
with the offense of MALICE MURDER for that the said Adrian English on and between the 25th and 26th days of October, 2001, in the County aforesaid, did unlawfully and with malice aforethought, cause the death of Hunter Alexander English, a human being, by shaking him and by causing his head to be struck by a certain hard surface; in violation of O.C.G.A. § 16-5-1, Contrary to the laws of said State.
English complains that the phrases "by shaking him" and "by causing his head to be struck by a certain hard surface" are not clear enough to inform him as to what conduct he must answer for. He argues that shaking a child is a fairly common occurrence among parents, and here, there is no allegation about the manner in which he shook his son; similarly, the count fails to allege in what manner the child's head was struck.
But such arguments overlook the fact that the count accuses English of the conduct of shaking his son and causing the child's head to be struck "unlawfully and with malice aforethought," resulting in the child's death and in violation of the statutory criminal offense of malice murder. It tracks the language of the statute, names the victim, gives the time and county in which the murder happened, and the methods by which the murder was committed. It is not required that the indictment give every detail of the crime.
The true test of the sufficiency of an indictment to withstand a special demurrer (Citations, punctuation and emphasis omitted.)
Coalson v. State, 251 Ga.App. 761, 764(2), 555 S.E.2d 128 (2001), quoting Snider v. State, 238 Ga.App. 55, 58(2), 516 S.E.2d 569 (1999). Count I charging malice murder accomplishes such purpose; it is legally sufficient. See OCGA § 17-7-54; Division 1, supra. (b) English contends that Counts V and II of the indictment (cruelty to children in the first degree and felony murder predicated on that offense as charged) were subject to special demurrers. Count V of the indictment charges English with:
the offense of CRUELTY TO CHILDREN IN THE FIRST DEGREE for that the said Adrian English on and between the 25th and the 26th days of October, 2001, in the County aforesaid, did maliciously cause Hunter Alexander English, his son and a...
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