Stewart v. State
| Decision Date | 17 May 2021 |
| Docket Number | S21A0074 |
| Citation | 311 Ga. 471,858 S.E.2d 456 |
| Court | Georgia Supreme Court |
| Parties | STEWART v. The STATE. |
Brian Steel, for appellant.
Oliver J. Browning, Jr., District Attorney; Christopher M. Carr, Attorney General, Patricia B. Attaway Burton, Deputy Attorney General, Paula K. Smith, Senior Assistant Attorney General, Michael A. Oldham, Assistant Attorney General, for appellee.
A jury found James Stewart guilty of felony murder and aggravated assault in the shooting death of his girlfriend, Wendy Johnson. Stewart contends that the trial court committed plain error in giving an improper sequential verdict form to the jury and that his counsel was ineffective for failing to object to the verdict form. In addition, Stewart contends that his sentence for aggravated assault (life without parole) was illegal.1 For the reasons explained below, we vacate the sentence for aggravated assault and otherwise affirm Stewart's convictions.2
Johnson was killed by a bullet that entered her right shoulder and tore through vital organs in her chest. Stewart was the sole witness to the shooting. At trial, Stewart testified as follows. Just before the shooting, he went outside to help Johnson retrieve some things from her car. He set his gun, which he almost always kept within arm's reach, on the top of the car and then leaned in the open door to kiss and hug Johnson, who was seated in the front passenger seat. Then, Stewart buckled the seatbelt around Johnson and closed the door, intending to go around and get into the driver's seat. He grabbed the gun, which was still sitting on the roof of the car, and it went off. Stewart insisted that he fired the gun accidentally, but he admitted his "negligence to gun safety" in handling a loaded firearm near Johnson after he had been drinking heavily and smoking marijuana.
Stewart requested a jury instruction on involuntary manslaughter predicated on two misdemeanors: reckless conduct and discharging a firearm while under the influence of alcohol or drugs. The trial court determined that the requested instruction was warranted by the evidence, which included Stewart's testimony that he was negligent in handling a firearm when he was intoxicated.3 After general instructions, including those regarding the presumption of innocence, the reasonable doubt standard, and the credibility of witnesses, and after instructions defining the charged offenses of malice murder, felony murder, and aggravated assault, the trial court explained the verdict form, including the provision for the lesser offense of involuntary manslaughter. The court instructed the jury:
If you do not believe beyond a reasonable doubt that the defendant is guilty of malice murder and/or felony murder but do believe beyond a reasonable doubt that the defendant is guilty of involuntary manslaughter, then you would be authorized to find him guilty of involuntary manslaughter. And in that event the form of your verdict would be – and we specified it for you with the bold wording for you to find accordingly.
The court instructed the jury, as Stewart requested, that a person commits involuntary manslaughter by causing the death of another person without any intention to do so by the commission of the offense of reckless conduct or by the commission of the offense of discharging a firearm while under the offense of alcohol or drugs, and then gave the statutory definitions of those predicate offenses. At the conclusion of the charge, the court gave the pattern jury instruction regarding the jury's verdict: "Whatever your verdict is, it must be unanimous; that is, it must be agreed to by all."4 This was the only reference to unanimity in the charge recited to the jury.
The preprinted verdict form read as follows:
Stewart did not object to the jury instructions or to the verdict form. At the end of the jury's deliberations, the foreperson checked "not guilty" for malice murder and "guilty" for felony murder and aggravated assault on the verdict form. The foreperson made no mark on the line on the verdict form for involuntary manslaughter.
1. Stewart argues that the verdict form that the trial court provided to the jury constituted an improper sequential jury instruction, because the form mandated that the jury reach a unanimous verdict of not guilty on both malice murder and felony murder before considering a verdict on the lesser offense of involuntary manslaughter. Stewart contends that the trial court committed plain error by providing the form to the jury. For the reasons that follow, we discern no plain error.
(a) This Court has held that, when the evidence presented in a criminal trial warrants a jury instruction on a lesser-included offense, the trial court errs if it instructs the jury that it may consider the lesser offense only if it first unanimously finds the defendant not guilty of the indicted greater offense. See Camphor v. State , 272 Ga. 408, 414 (6) (d), 529 S.E.2d 121 (2000).5 An instruction that tells the jury that it should consider possible verdicts in a particular sequence is not an improper sequential jury instruction as long as the instruction does not insist on unanimity as to a not-guilty verdict on the greater offense before consideration of the lesser offense. See Morris v. State , 303 Ga. 192, 198 (V) (A), 811 S.E.2d 321 (2018)6 ; Armstrong v. State , 277 Ga. 122, 122 (2), 587 S.E.2d 5 (2003) ; Camphor , 272 Ga. at 414 (6) (d), 529 S.E.2d 121 ; Suits v. State , 270 Ga. 362, 366 (6), 507 S.E.2d 751 (1998). See also Jackson v. State , 267 Ga. 130, 133 (12), 475 S.E.2d 637 (1996) (). We have approved the pattern jury instruction on lesser included offenses and deemed it preferable in general to alternative instructions. See Camphor , 272 Ga. at 414 (6) (d), 529 S.E.2d 121. That pattern instruction provides (with blanks to fill in the pertinent lesser offense):
If you do not believe beyond a reasonable doubt that the defendant is guilty of (indicted crime), but do believe beyond a reasonable doubt that the defendant is guilty of ________, then you would be authorized to find the defendant guilty of ________, and the form of your verdict in that event would be, "We, the jury, find the defendant guilty of ________."
Suggested Pattern Jury Instructions, Vol. II: Criminal Cases, § 1.60.11 (4th ed., 2007).
The jury instructions at issue in this case, in particular the verdict form, deviated from the pattern instruction. See Rowland v. State , 306 Ga. 59, 68 (6), 829 S.E.2d 81 (2019) . Through the form, the trial court instructed the jury of only one circumstance when it could "render verdict" as to the lesser offense of involuntary manslaughter: if it first reached a "verdict," which the recited instructions and the verdict form specified must be "unanimous," of "not guilty" as to Count 1 and Count 2 for malice murder and felony murder. Compared to other cases in which we have held that jury instructions were not improperly sequential – because, although the instructions in those cases deviated from the pattern instruction on lesser offenses, they did not compel the jury to reach a unanimous verdict of not guilty on the greater offense before it could consider the lesser offense – the language of the verdict form in this case is more limiting of the jury's consideration of the lesser offense.7 We reiterate that trial courts that elect to dictate the sequence in which a jury is to consider (deliberate about) possible verdicts must avoid any instruction, including on a verdict form, that directs the jury to consider the lesser offense only if it first unanimously finds the defendant not guilty of (reaches a verdict of not guilty on) the indicted greater offense.
(b) Given Stewart's failure to object to the jury instructions, including the verdict form, however, we do not address this claim of error in terms of ordinary appellate review. See Russell v. State , 309 Ga. 772, 782 (3) (a), 848 S.E.2d 404 (2020). We must instead resolve the issue by examining whether Stewart has cleared the much higher bar of showing plain error.
To show plain error, the appellant must demonstrate that the instructional error was not affirmatively waived, was obvious beyond reasonable dispute, likely affected the outcome of the proceedings, and seriously affected the fairness, integrity, or public reputation of judicial proceedings. Satisfying all four prongs of this standard is difficult, as it should be.
Clarke v. State , 308 Ga. 630, 637 (5), 842 S.E.2d 863 (2020) (citations and punctuation omitted). See also State v. Herrera-Bustamante , 304 Ga. 259, 264 (2) (b), 818 S.E.2d 552 (2018) (). An instructional error is obvious beyond reasonable dispute when the error is "plain under controlling precedent or in view of the unequivocally clear words of a statute or rule." Cheddersingh v. State , 290 Ga. 680, 685 (2) n.5, 724 S.E.2d 366 (2012) (citations, punctuation and...
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