Stinson v. State, No. S05A0389.

Decision Date28 March 2005
Docket NumberNo. S05A0389.
Citation611 S.E.2d 52,279 Ga. 177
PartiesSTINSON v. The STATE.
CourtGeorgia Supreme Court

William J. Mason, Columbus, for Appellant.

John Gray Conger, Dist. Atty., Thurbert E. Baker, Atty. Gen., Robin Joy Leigh, Asst Atty. Gen., Dan Trimble, Asst. Dist. Atty., for Appellee.

BENHAM, Justice.

Appellant Johnny Stinson appeals from the judgment of conviction entered after a jury found him guilty of the felony murder of his girlfriend, Rosemary Reynolds.1

1. The State presented evidence which established the victim was killed by a single gunshot wound to the back of her head. Due to the gunpowder stippling surrounding the entrance wound, a forensic pathologist estimated the gun was fired from a distance of 3-6 inches from the victim's scalp. After seeing the path the bullet took upon entering the victim's head, the forensic pathologist determined the bullet was fired into the five-foot, nine-inch victim in an "acutely downward" direction. Appellant, who is five-feet, five inches tall, told the first police officer who came to the scene that the victim had shot herself; he told other investigating officers he and the victim had had a verbal altercation which had been followed by a fight for possession of a pistol, and the victim had been shot during the struggle. Appellant later amended his statement to say he had gained possession of the gun during the struggle and it had gone off accidentally as the victim spun away from him. The evidence was sufficient to authorize a rational trier of fact to conclude beyond a reasonable doubt that appellant was guilty of felony murder while committing an aggravated assault. Jackson v. Virginia, 443 U.S. 307, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979). See also Stinson v. State, 273 Ga. 519(1), 544 S.E.2d 118 (2001).

2. In his sole enumeration of error, appellant alleges the felony murder indictment upon which he was tried did not satisfy the requirements of due process since it did not allege the essential elements of the predicate offense. Because of this purported deficiency, appellant contends his felony murder conviction must be reversed.

[D]ue process of law requires that an indictment "put the defendant on notice of the crimes with which he is charged and against which he must defend." [Cit.] An indictment apprises a defendant that he may be convicted of the crime named in the indictment, of a crime included as a matter of law in the crime named, and of a crime established by the facts alleged in the indictment regarding how the crime named was committed. [Cit.].

Borders v. State, 270 Ga. 804, 806(1), 514 S.E.2d 14 (1999). In order to satisfy due process when an indictment charges a compound felony such as felony murder, the count charging the compound offense must contain the essential elements of the predicate offense, or the indictment must contain a separate count charging the predicate offense completely (see Mikenney v. State, 277 Ga. 64(1), 586 S.E.2d 328 (2003)), or the indictment must elsewhere allege facts showing how the compound offense was committed. See Scott v. State, 276 Ga. 195(2), 576 S.E.2d 860 (2003); Borders v. State, supra, 270 Ga. 804(1), 514 S.E.2d 14 (malice murder count set forth sufficient facts concerning the killing of the victim to put defendant on notice he was accused of compound offense of felony murder with aggravated assault as the predicate offense).

Page 54

The indictment returned against appellant in 1999 charged him with malice murder, felony murder during the commission of aggravated assault, and possession of a firearm during the commission of a crime. The felony murder count did not contain the essential elements of the predicate offense of aggravated assault and the indictment did not contain a separate count charging appellant with aggravated assault; however, the count charging appellant with malice murder set forth sufficient facts to put appellant on notice he was accused of the compound offense of felony murder with aggravated assault as the predicate offense.2 Borders v. State, supra. Thus, the 1999 indictment satisfied due process.

Appellant points out he was not re-tried in 2001 on the entire 1999 indictment, but on a redacted version of that indictment which showed only the felony murder count since the 1999 jury that found him guilty of felony murder did not return verdicts on the malice murder and aggravated assault counts. Appellant contends the Court's review should be limited to the redacted indictment containing only the felony murder count. The State maintains appellant's challenge to the indictment on which he was tried is a special demurrer which has been waived because he first raised it on motion for new trial and did not assert the challenge before arraignment. See Smith v. State, 277 Ga. 213(2)(a), 586 S.E.2d 639 (2003) (defendant waives his right to be tried on a perfect indictment when he fails to file a special demurrer before pleading not guilty to the indictment).

Assuming without deciding that our review of appellant's allegation that he was denied due process is limited to the one-count redacted indictment, we conclude that the one-count indictment did not deprive appellant of due process. If an accused can admit to the allegations of a crime and still be not guilty of a crime, the indictment is insufficient and the conviction void. Smith v. Hardrick, 266 Ga. 54(1), 464 S.E.2d 198 (1995). The one-count indictment charged appellant with felony murder—having caused the death of the victim while committing the felony of aggravated assault. See OCGA § 16-5-1(c). Aggravated assault is a felony. OCGA § 16-5-21. The indictment is sufficient to withstand a general demurrer because appellant cannot admit he caused the death of the victim while in the commission of aggravated assault and not be...

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43 cases
  • Clark v. State
    • United States
    • Georgia Supreme Court
    • January 18, 2023
    ...of the victim while in the commission of aggravated assault and not be guilty of the crime [of felony murder]." Stinson v. State , 279 Ga. 177, 179 & n.2, 611 S.E.2d 52 (2005) (holding that an indictment charging the appellant with felony murder by causing the death of the victim " ‘while i......
  • State v. Wilson
    • United States
    • Georgia Court of Appeals
    • October 19, 2012
    ...facts alleged in the indictment regarding how the crime named was committed.(Citation and punctuation omitted.) Stinson v. State, 279 Ga. 177, 178(2), 611 S.E.2d 52 (2005). Stated differently, an indictment not only charges the defendant with the specified crime, it also embraces all lesser......
  • Sanders v. State
    • United States
    • Georgia Supreme Court
    • February 15, 2022
    ...or the indictment must elsewhere allege facts showing how the compound offense was committed.(Citation omitted.) Stinson v. State , 279 Ga. 177, 178 (2), 611 S.E.2d 52 (2005) ; see also Mikenney v. State , 277 Ga. 64, 65 (1), 586 S.E.2d 328 (2003) ("[A]n indictment which omits an essential ......
  • Smith v. State
    • United States
    • Georgia Supreme Court
    • May 17, 2022
    ...of aggravated assault [or the felony of aggravated battery] and not be guilty of the crime [of felony murder]." Stinson v. State , 279 Ga. 177, 179 (2), 611 S.E.2d 52 (2005) (indictment redacted to one count charging felony murder based on "aggravated assault" without alleging the elements ......
  • Request a trial to view additional results

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