Worthy v. State, 41214

• Decision Date: 07 January 1985
• Docket Number: No. 41214,41214
• Citation: 324 S.E.2d 431,253 Ga. 661
• Parties: WORTHY v. The STATE.
• Court: Georgia Supreme Court

Page 431

324 S.E.2d 431

253 Ga. 661

WORTHY v. The STATE.

No. 41214.

Supreme Court of Georgia.

Jan. 7, 1985.

Steven H. Sadow, Garland, Nuckolls & Catts, P.C., Atlanta, for Anthony George Worthy.

Robert E. Wilson, Dist. Atty., Robert G. Morton, Asst. Dist. Atty., Decatur, Michael J. Bowers, Atty. Gen., for the State.

HILL, Chief Justice.

Anthony Worthy was found guilty but mentally ill of murder and theft by taking. He was given a life sentence and 20 years to serve respectively, and appeals. Because the evidence of guilt is overwhelming, only a summary of the facts, drawn in part from defendant's confession, is presented here.

On the evening of Saturday, August 13, 1983, Andrew Frost, age 19, argued with his mother, the victim, over whether or not a friend could spend the night with him. When she persisted in refusing his request, he left and did not return that night. On Sunday afternoon at 2:00 p.m. he found his mother lying on her bed bleeding profusely from her head. She was rushed to the hospital, but died later from her wounds. Her car was missing.

That same weekend, Anthony Worthy, the 15-year-old defendant, and Pam Jenkins, age 14, decided to run away to Florida. After spending Saturday night in a park, they went to the victim's home to visit the victim's daughter and, although the daughter was not in, the victim let them in to use the telephone. Jenkins and the victim exchanged several calls with the victim's daughter, who was visiting her father for the weekend. Worthy then hit the victim over the head with Jenkins' sweatshirt in which they had hidden a rock. Worthy said he left the apartment, and because she was still alive, Jenkins hit the victim some more. Jenkins claims Worthy alone hit her 3 or 4 times. The two then left in the victim's car. At about 5:00 p.m., they were involved in an intersection accident to which the police were called. They were arrested after it was discovered that the car was stolen from the victim. Jenkins led officers to the place where the sweatshirt and rock had been discarded and testified against the defendant at his trial.

The jury found him guilty but mentally ill on both the murder and theft by taking (of the victim's car) charges and this appeal followed. He raises 9 enumerations of error. ¹

1. In his first enumeration of error, the defendant urges that because he was a juvenile the superior court had no jurisdiction over the theft by taking count of the 2-count indictment against him.

Paragraph (a) of OCGA § 15-11-5 provides, in effect, that juvenile courts have exclusive original jurisdiction over juvenile matters except crimes for which the juvenile may be punished by loss of or confinement for life. Paragraph (b) thereof provides in effect that the juvenile court shall have concurrent jurisdiction with the superior court as to crimes punishable by loss of or confinement for life. Theft by taking of an automobile, OCGA §§ 16-8-2, 16-8-12(a)(4)(A), is within the exclusive jurisdiction of the juvenile court. Thus, defendant argues the superior court had no jurisdiction of the theft by taking count.

On the contrary, in Relyea v. State, 236 Ga. 299, 223 S.E.2d 638 (1976), the defendant was indicted for 6 counts of armed robbery (for which life sentences could be imposed) and one count of motor vehicle theft. This court held that the superior court had jurisdiction of the motor vehicle theft count. In Relyea, as here, no petition alleging delinquency based upon the theft of the automobile had been filed in juvenile court.

We hold that the concurrent jurisdiction of the superior court over capital felonies committed by juveniles must necessarily extend to related lesser crimes which are part of the same criminal transaction. To rule otherwise would be to bisect criminal conduct artificially and require the state to follow two procedures with no substantive meaning other than to satisfy procedural requirements, with the end result that the case involving the lesser crime would be instituted in juvenile court and transferred to the superior court, OCGA § 15-11-39, and the juvenile would still be tried for the lesser crime along with the crime giving the superior court concurrent jurisdiction. There is no loss of substantive protection of the juvenile, and the public's rights should not be impeded by meaningless procedural steps which delay the judicial process and conceivably could lead to the frustration of justice under the rigorous requirements of the double jeopardy clause.

Longshore v. State, 239 Ga. 437, 238 S.E.2d 22 (1977), relied on by the defendant, does not require a different result. In fact, Longshore is authority for the holding stated above. In that case, Longshore was indicted for the murder of his father and aggravated assault (or aggravated battery; the opinion refers to both) upon his mother. Acknowledging that the crime against the mother came within the exclusive jurisdiction of the juvenile court, this court nevertheless found that the superior court acquired jurisdiction of both offenses upon Longshore's being indicted for murder. Here again, no petition alleging delinquency based upon the crime against the mother had been instituted in juvenile court.

Thus, we find no merit in enumeration of error one.

2. In his second and third enumerations of error, the defendant contends the jury verdict must be construed as finding him guilty of felony murder, and therefore that the verdict on the underlying felony, theft by taking, must be vacated. He argues that under our cases exemplified by Burke v. State, 248 Ga. 124, 125, 281 S.E.2d 607 (1981), where the jury is instructed as to malice murder and felony murder, a general verdict of guilty of murder must be treated as a verdict of guilty of felony murder and the verdict and sentence as to the supporting felony must be vacated. Dampier v. State, 245 Ga. 427, 435, 265 S.E.2d 565 (1980). The state contends, on the other hand, that by its verdict the jury clearly showed that it found the defendant guilty of malice murder, particularly because the trial court instructed the jury that it must specify felony murder if it so found.

Worthy was indicted, in two counts, for murder "with malice aforethought" and theft by taking the victim's Plymouth Volare. The jury was instructed as to the crimes of malice murder, theft by taking, felony murder, criminal attempt to commit murder, involuntary manslaughter, aggravated assault and simple battery. The jury was charged as to the form of its verdict, as follows: "If you find the defendant guilty beyond a reasonable doubt on any count, then the form of your verdict would be, We, the Jury, find the defendant guilty and specify each count upon which you find him guilty. If you find him guilty of felony murder, then you should so specify. If you find the defendant guilty of the crimes of criminal attempt to commit murder or involuntary manslaughter or aggravated assault with a deadly weapon or simple battery, then your verdict should so state." The jury was charged that if it found the defendant guilty but mentally ill, "you should so specify in your verdict."

The jury's verdict was "On Count One of murder, we, the jury, find the defendant guilty but mentally ill.... On Count Two of theft by taking, we find the defendant guilty but mentally ill." We find that the jury was instructed that any verdict other than malice murder on count one should be specified. In light of the instructions given and verdicts returned, we find that the jury intended to, and did, find the defendant guilty of malice murder. See Stone v. State, 253 Ga. 433, 321 S.E.2d 723 (1984). Thus, there is no merit in the defendant's contention that the theft by taking count should be vacated.

Under this ruling and because we have already held in Division 1 that the theft by taking charge was properly before the superior court, there is likewise no merit to the defendant's contention that a verdict of felony murder is invalid. Enumerations of error two and three present no grounds for setting aside the jury's verdicts.

3. The defendant next urges that his custodial statement was improperly introduced into evidence, for three reasons.

The trial court held a Jackson-Denno hearing in order to determine the admissibility of the defendant's statement. Jackson v. Denno, 378 U.S. 368, 84 S.Ct. 1774, 12 L.Ed.2d 908 (1964). After the defendant was arrested, the officers drove to his house and his mother got in the police car with him. She testified that on the way to the station as the Miranda [v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966) ] warnings were being read, she requested that she be returned to her home so she could retain an attorney. See Edwards v. Arizona, 451 U.S. 477, 101 S.Ct. 1880, 68 L.Ed.2d 378 (1981). Defendant urges that the testimony of the two police officers that the mother did not request an attorney should not be believed. After hearing all the evidence the trial court found the defendant's statement voluntary and admissible. Unless clearly erroneous, a trial court's findings as to factual determinations and credibility relating to the admissibility of a confession will be upheld on appeal. Crawford v. State, 245 Ga. 89 (2), 263 S.E.2d 131 (1980); Powell v. State, 252 Ga. 297, 298, 313 S.E.2d 90 (1984).

Defendant urges next that, due to his mental retardation, the trial court erred in finding that his waiver of rights was knowing and intelligent. We disagree. Goodwin v. State, 236 Ga. 339(1), 223 S.E.2d 703 (1976); Williams v. State, 238 Ga. 298(1), 232 S.E.2d 535 (1977); Corn v. State, 240 Ga. 130(3), 240 S.E.2d 694 (1977).

The defendant also challenges the admissibility of his confession because he was not taken before an impartial juvenile intake officer. See OCGA § 15-11-19(a)(3). In this connection defendant urges that because the person designated by the juvenile court as juvenile intake officer who, along with his mother, observed his...