Young v. State

• Decision Date: 25 May 1983
• Docket Number: No. 39669,39669
• Citation: 303 S.E.2d 431,251 Ga. 153
• Parties: YOUNG v. The STATE.
• Court: Georgia Supreme Court

Page 431

303 S.E.2d 431

251 Ga. 153

YOUNG v. The STATE.

No. 39669.

Supreme Court of Georgia.

May 25, 1983.

Rehearing Denied July 7, 1983.

Donald W. Huskins, Eatonton, James A. Nolan, Madison, for Charlie young.

Joseph H. Briley, Dist. Atty., Gray, Norman R. Miller, Asst. Dist. Atty., Peter J. Rice, Jr., Eatonton, Michael J. Bowers, Atty. Gen., Atlanta, for the State.

WELTNER, Justice.

Young was convicted in the Superior Court of Greene County of murder, armed robbery and robbery by intimidation. He was sentenced to death for the murder, the jury having found two aggravating circumstances: that the offense of murder was committed while the offender was engaged in the commission of another capital felony, armed robbery (OCGA § 17-10-30(b)(2) (Code Ann. § 27-2534.1)), and that the offender committed the offense of murder for the purpose of receiving money (OCGA § 17-10-30(b)(4) (Code Ann. § 27-2534.1)). In addition, Young received a life sentence for armed robbery and 20 years for robbery by intimidation. This Court affirmed in Young v. State, 237 Ga. 852, 230 S.E.2d 287 (1976). Young's subsequent petition for a writ of habeas corpus filed in state court was denied, and this Court affirmed. Young v. Ricketts, 242 Ga. 559, 250 S.E.2d 404 (1978), cert. denied, 442 U.S. 934, 99 S.Ct. 2870, 61 L.Ed.2d 304 (1979).

Young then initiated a habeas corpus proceeding in the United States District Court for the Middle District of Georgia. The district court set aside the death sentence, ruling that Young received ineffective assistance of counsel during the sentencing phase of his trial. Young v. Zant, 506 F.Supp. 274 (M.D.Ga.1980). As an additional ground for its holding, the court stated that "... the evidence was not legally sufficient to support the jury's finding beyond a reasonable doubt that the murder was committed in the course of an armed robbery or for the purpose of obtaining money." Id. at p. 280.

Thus, that the court held that the evidence was not legally sufficient to support the jury's finding of the aggravating circumstances defined at OCGA § 17-10-30(b)(2) and (b)(4) (Code Ann. § 27-2534.1).

The United States Court of Appeals for the Eleventh Circuit reversed, holding that Young did not receive effective assistance of counsel at either stage of the bifurcated trial. Young v. Zant, 677 F.2d 792 (11th Cir.1982). Young's convictions were thus reversed, as well as his death sentence.

The court of appeals recognized that the district court had found, as an alternative ground for reversal of the death sentence, that the evidence was insufficient to support the finding of the two aggravating circumstances alleged by the State. "The district court concluded that the undisputed evidence showed that Young's victim, Reuben H. Flynt, was completely incapacitated before Young formed the intent to rob him. Thus, the court reasoned, the State had failed to prove that any of the essential elements of armed robbery, the taking of property from a person 'by use of an offensive weapon,' [OCGA § 16-8-41 (Code Ann. § 26-1902)], occurred prior to the assault; nor had it shown that Young's purpose in assaulting Flynt was to obtain money.

"Curiously, the district court did not discuss the legal effect of Flynt's incapacity, and therefore Young's taking without 'use of an offensive weapon,' on the validity of Young's conviction for armed robbery. This might have been due to petitioner's failure to make the claim that the State's evidence was insufficient under the standard set forth in Jackson v. Virginia, 443 U.S. 307, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979)." 677 F.2d at p. 794, n. 3.

The court of appeals, having based its decision solely on ineffectiveness of counsel, did not expressly affirm the holding of the district court with respect to the sufficiency of the evidence. However, in discussing the issue of ineffectiveness at the guilt-innocence stage of the trial, the court made this observation: "Turning to the armed robbery count, we note the district court, in assessing the sufficiency of the State's evidence of aggravating circumstances on the malice murder charge, concluded that the State did not produce sufficient evidence to permit the jury to find beyond a reasonable doubt that Young had formed the intent to rob Flynt prior to the fatal assault. Young v. Zant, 506 F.Supp. at 280-81. This deficiency in the evidence should have been sufficiently clear to [defense counsel] to suggest a strong argument that Young did not rob Flynt by use of an offensive weapon and thus could not be guilty of armed robbery under [OCGA § 16-8-4 (Code Ann. § 26-1902]." 677 F.2d at p. 799.

The judgment of the court of appeals' opinion reads: "The district court's denial of the writ of habeas corpus with respect to the guilt phase of Charlie Young's trial is therefore REVERSED." 677 F.2d at p. 800.

Young has been re-indicted in superior court for the same offenses--malice murder, armed robbery and robbery by intimidation. The State has once again announced its intention to seek the death penalty based upon the same aggravating circumstances, and with the possible addition of OCGA § 17-10-30(b)(7) (Code Ann. § 27-2534.1). Young filed pleas of double jeopardy in opposition to the indictment for armed robbery and the attempt to seek the death penalty again. It is from the denial of these pleas in bar that Young now appeals.

1. We conclude that the holding of Patterson v. State, 248 Ga. 875, 287 S.E.2d 7 (1982), is applicable to this case. The denial of Young's double jeopardy pleas may be appealed without application and certification, which otherwise would be required under OCGA § 5-6-34(b) (Code Ann. § 6-701).

2. Although the district court and court of appeals were in agreement as to the invalidity of Young's death sentence, we interpret the opinion of the court of appeals as a reversal of the district court. The court of appeals held that "[a]n examination of the record of the trial makes it plain that [defense counsel] did not accord Young even a modicum of professional assistance at any time." 677 F.2d at pp. 794-5. Rather than reversing in part and affirming in part, the court of appeals chose to substitute its opinion for that of the district court.

We perceive that the effect of this reversal was to nullify the entire opinion of the district court and to place the parties in the position quo ante, subject, of course, to the holdings of the court of appeals. Finney v. Tommey, 50 Ga. 140 (1873); Bigby v. Powell, 15 Ga. 91 (1854); Walker v. Dougherty, 14 Ga. 653 (1854); McKay v. McKay, 93 Ga.App. 42(3), 90 S.E.2d 627 (1955). See Gospel Army v. City of Los Angeles, 331 U.S. 543, 67 S.Ct. 1428, 91 L.Ed. 1662 (1947); Atlantic Coast Line R.R. Co. v. St. Joe Paper Co., 216 F.2d 832 (5th Cir.1954). It follows that in reviewing the denial of Young's double jeopardy pleas, we look only to the opinion of the court of appeals.

That court concluded that Young's convictions and sentences were invalid because Young did not receive reasonably effective legal assistance at either stage of his trial. "Where a prisoner obtains his freedom by writ of habeas corpus, because he was denied the right of counsel when originally convicted, he does not obtain a release exonerating him from the charges for which he was tried, but the effect of such release is to set aside any plea, verdict, sentence, etc., that may have been entered in the case and he may then be arraigned as though no prior trial, etc., had taken place." Patton v. State, 111 Ga.App. 853, 143 S.E.2d 518 (1965), headnote; see Fair v. Balkcom, 216 Ga. 721, 728-9, 119 S.E.2d 691 (1961); see Bullington v. Missouri, 451 U.S. 430, 442, 101 S.Ct. 1852, 68 L.Ed.2d 270 (1981).

3. As noted, the court of appeals recognized the holding of the district court that the evidence was insufficient to show that Young formed the intent to rob his victim prior to the fatal assault, and concluded that "[t]his deficiency in the evidence should have been sufficiently clear to [defense counsel] to suggest a strong argument that Young did not rob Flynt by use of an offensive weapon and thus could not be guilty of armed robbery under [OCGA § 16-8-4 (Code Ann. § 26-1902)]." 677 F.2d at p. 799. Young contends that this constitutes a holding by the court of appeals that the evidence was insufficient to support aggravating circumstances (b)(2) and (b)(4) and the conviction of armed robbery. As is clear from our holding in Division 1, we do not agree. Nevertheless, were Young's contention correct, we observe that the court of appeals based its conclusions upon an inaccurate construction of state law, specifically, OCGA § 16-8-41 (Code Ann. § 26-1902), as Jackson v. Virginia, 443 U.S. 307, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979), which sets out the constitutional standard for review of the sufficiency of the evidence, was not relied on by either the district court or the court of appeals.

"A person commits the offense of armed robbery when, with intent to commit theft, he takes property of another from the person or immediate presence of another by use of an offensive weapon...." OCGA § 16-8-41(a) (Code Ann. § 26-1902). In Moore v. State, 233 Ga. 861, 864, 213 S.E.2d 829 (1975), the appellant contended that "... there was no aggravating circumstance in [the] case because a person cannot be guilty of armed robbery if the victim is not conscious or alive at the time of the robbery." Rejecting that argument, we said: "In Hicks v. State, 232 Ga. 393, 207 S.E.2d 30, we concluded that [§ 16-8-41] 'clearly contemplates that the offensive weapon be used as a concomitant to a taking which involves the use of actual force or intimidation (constructive force) against another person.' p. 403

"This accords with the general rule in the United States that the force or intimidation essential to robbery must either precede or be contemporaneous with, and not subsequent to, the taking.

"Without the force used by appella...