Sullivan v. State

• Citation: 622 S.E.2d 823
• Decision Date: 21 November 2005
• Docket Number: No. S05A1140.,S05A1140.
• Parties: SULLIVAN v. The STATE.
• Court: Supreme Court of Georgia

622 S.E.2d 823

SULLIVAN v. The STATE.

No. S05A1140.

Supreme Court of Georgia.

November 21, 2005.

Donald F. Samuel, Edward T.M. Garland, Garland, Samuel & Loeb, P.C., Atlanta, Josh David Moore, Georgia Capital Defenders, Atlanta, for Appellant.

Anne Elizabeth Green, Asst. Dist. Atty., Paul L. Howard, Jr., Dist. Atty., Hon. Thurbert E. Baker, Atty. Gen., Christopher Dale Helms, Asst. Atty. Gen., for Appellee.

HUNSTEIN, Presiding Justice.

James V. Sullivan was indicted by a Fulton County grand jury in 1998 on charges of malice murder, felony murder, aggravated assault and burglary arising out of the 1987 shooting death of his wife, Lita Sullivan.¹ The State has filed notice of its intent to seek the death penalty. Sullivan was previously tried and acquitted in 1992 in Federal district court on charges that he violated 18 USCS § 1952A (use of interstate commerce facilities in the commission of murder-for-hire). Sullivan filed a motion contending, inter alia, that because of his acquittal on the Federal charges, the State was barred by OCGA § 16-1-8(c) from prosecuting him on the State charges. The trial court denied Sullivan's motion and we granted his petition for interim review in order to address this ruling. We conclude that OCGA § 16-1-8(c) does not bar the State from prosecuting Sullivan because the Federal prosecution was for a crime not within the concurrent jurisdiction of this State. Accordingly, we affirm the trial court.

1. OCGA § 16-1-8(c) provides that

[a] prosecution is barred if the accused was formerly prosecuted in a district court of the United States for a crime which is within the concurrent jurisdiction of this state if such former prosecution resulted in either a conviction or an acquittal and the subsequent prosecution is for the same conduct, unless each prosecution requires proof of a fact not required in the other prosecution or unless the crime was not consummated when the former trial began.

The plain language of OCGA § 16-1-8(c) creates an unambiguous threshold question: was the prior Federal prosecution for a crime within the concurrent jurisdiction of the State? When that question is answered in the negative, OCGA § 16-1-8(c) presents no bar to a subsequent State prosecution. Unless the former Federal prosecution was for a crime which is within the concurrent jurisdiction of this State, OCGA § 16-1-8(c) is inapplicable regardless of any overlap in the accused's conduct that is the subject matter of the two prosecutions.² Accord Dorsey v. State, 237 Ga. 876, 877, 230 S.E.2d 307 (1976) (bar in subsection (c) applies only if former prosecution was "for a crime over which the federal court had jurisdiction and over which the superior court had concurrent jurisdiction").

Concurrent jurisdiction is "[j]urisdiction exercised by different courts, at [the] same time, over [the] same subject matter, and within [the] same territory, and wherein litigants may, in [the] first instance, resort to either court indifferently." Black's Law Dictionary 264 (5th ed.1979). However, in the context of OCGA § 16-1-8(c), "concurrent jurisdiction" does not mean that the State must stand on equal footing with the Federal authorities and be able to prosecute an accused in a state court for violation of the Federal statute, in the same manner that Georgia civil courts can entertain causes of action arising solely out of Federal civil law.³ Such a literal reading of OCGA § 16-1-8(c) would effectively repeal the statute altogether. See 18 USC § 3231 (United States district courts "shall have original jurisdiction, exclusive of the courts of the States, of all offenses against the laws of the United States"). Under that same rationale, a Federal statute need not expressly preclude the State from prosecuting an accused in a state court under any applicable counterpart in the Criminal Code of Georgia in order to find that no concurrent jurisdiction exists.

In determining what "concurrent jurisdiction" means in the context of OCGA § 16-1-8(c), we look to the unambiguous statutory language and interpret it so as to give effect to the plain and unequivocal intent of the Legislature. See generally Abdulkadir v. State, 279 Ga. 122, 123(2), 610 S.E.2d 50 (2005). OCGA § 16-1-8(c) focuses on whether the "crime" for which the accused was prosecuted in Federal court "is within the concurrent jurisdiction of this state." (Emphasis added.) This statutory language unambiguously looks to whether there is an existing Georgia penal provision comparable to the Federal crime over which a state court has jurisdiction. Where an accused can be prosecuted in either State court or Federal district court indifferently for the same crime, then that crime is within the concurrent jurisdiction of this State. Conversely, no concurrent jurisdiction exists where no Georgia counterpart exists to the Federal crime so that the accused could be prosecuted for that crime only in a Federal district court. This interpretation gives full meaning and effect to all of the language of OCGA § 16-1-8(c) and is consistent with the position taken in the Committee Notes, Code Ann. Ch. 26-5, regarding its predecessor provision, Code Ann. § 26-507(c), that "[s]ubsection (c) results in protection of the accused against prosecution by the State of Georgia if his act had previously resulted in prosecution by the Federal Government on the same terms as though the prior prosecution had been by the State of Georgia." (Emphasis supplied.)⁴

Contrary to the dissent's position, nothing in our recognition of the threshold "concurrent jurisdiction" requirement renders meaningless the three-step analysis created by the plain and unambiguous language of OCGA § 16-1-8(c). This can be easily demonstrated by using the dissent's own hypothesis, which assumes the Legislature had enacted a statute comparable to 18 USC § 1952A. Scenario One: a defendant uses a telephone to arrange for the commission of the murder of victim A. If the defendant is prosecuted in the district court for this crime and the prosecution results in the defendant's conviction or acquittal, OCGA § 16-1-8(c) would bar a subsequent State prosecution of the defendant for using a telephone to arrange for victim A's murder because the State prosecution would be for a crime within the State's concurrent jurisdiction, arising out of the same conduct, and neither prosecution required proof of a fact not required in the other prosecution. Scenario Two: a defendant uses the telephone to arrange for the commission of victim A's murder and for the delivery of cocaine taken from victim A's body. The defendant is prosecuted and convicted in the district court for using the phone to murder victim A, but OCGA § 16-1-8(c) does not bar the State's prosecution of the defendant for using the phone to arrange for the delivery of cocaine. Although under step one concurrent jurisdiction exists in Georgia for the prosecution of the defendant for the crimes of using the phone to arrange either the murder or the drug crime, see OCGA § 16-13-32.3(a); Division 2, infra, under step 2 of the statutory analysis the former prosecution for the murder-based crime was not for the same conduct as the State's cocaine-based crime. Scenario Three: a defendant places one telephone call to arrange for the murders of both victim A and victim B. The defendant is prosecuted and convicted in the district court for using the phone to murder victim A, but OCGA § 16-1-8(c) does not bar the State's prosecution of the defendant for using the phone to arrange for the murder of victim B because although under step one concurrent jurisdiction exists in Georgia for the prosecution of the defendant for the crime and under step 2 the former prosecution was for the same conduct, under step 3 each prosecution required proof of a fact not required in the other prosecution (i.e., the different identities of the two victims). As these scenarios demonstrate, OCGA § 16-1-8(c) retains full meaning and viability under our interpretation.⁵

2. Applying the correct analysis of OCGA § 16-1-8(c), we turn to the threshold issue in this case, namely, whether the 1992 Federal prosecution of Sullivan for violating 18 USC § 1952A (now codified as 18 USC § 1958) was for a "crime which is within the concurrent jurisdiction of this state." To make that determination, it is necessary to examine 18 USC § 1952A and compare it to the Criminal Code of Georgia, OCGA § 16-1-1 et seq.

18 USC § 1952A, captioned "[u]se of interstate commerce facilities in the commission of murder-for-hire," was codified in the racketeering chapter of Title 18 (Crimes and Criminal Procedure) of the United States Code and, at the time of Sullivan's prosecution in 1992, provided that

[w]hoever travels in or causes another ... to travel in interstate or foreign commerce, or uses or causes another ... to use the mail or any facility in interstate or foreign commerce, with intent that a murder be committed in violation of the laws of any State or the United States as consideration for the receipt of, or as consideration for a promise or agreement to pay, anything of pecuniary value, or who conspires to do so, ... and if death results, shall be punished by death or life imprisonment....⁶

Id. at (a). The statute defines a "facility of interstate commerce" as including "means of ... communication." Id. at (b)(2). Sullivan's Federal indictment alleged in four counts that he violated this statute by using or causing another to use a telephone to place long distance calls between Atlanta and Palm Beach, Florida, with the intent that the murder of Lita Sullivan be committed in exchange for a promise to pay something of pecuniary value.⁷

After Sullivan's acquittal on these charges in 1992, the State indicted him in 1998 on charges of malice murder, felony murder predicated upon aggravated assault, felony murder predicated upon burglary, aggravated assault and burglary. The State did not indict Sullivan...