Zackery v. State

• Decision Date: 24 September 1987
• Docket Number: No. 44837,44837
• Citation: Zackery v. State, 360 S.E.2d 269, 257 Ga. 442 (Ga. 1987)
• Parties: ZACKERY v. The STATE.
• Court: Georgia Supreme Court

Page 269

360 S.E.2d 269

257 Ga. 442

ZACKERY v.The STATE.

No. 44837.

Supreme Court of Georgia.

Sept. 24, 1987.

Drew R. Dubrin, Atlanta, for Paul Antonio Zackery.

Lewis R. Slaton, Dist. Atty., Atlanta, Joseph J. Drolet, Carole E. Wall, Asst. Dist. Attys., Michael J. Bowers, Atty. Gen., Dennis R. Dunn, Asst. Atty. Gen., for the State.

MARSHALL, Chief Justice.

Paul Antonio Zackery appeals from his conviction of felony murder and cruelty to children, resulting from the death by beating of two-year-old Ross Johnson, for which he was given concurrent life and 20-year imprisonment sentences.¹

1.We find, viewing the evidence in a light most favorable to the jury's verdict, that the evidence was sufficient to enable any reasonable trier of fact to find the defendant guilty of felony murder beyond a reasonable doubt.Jackson v. Virginia, 443 U.S. 307, 99 S.Ct. 2781, 61 L.Ed.2d 560(1979).

2.Zackery may not be convicted of felony murder and also be convicted of the underlying felony (cruelty to children) which was alleged by the indictment to support the conviction of felony murder.Williams v. State, 255 Ga. 21(3), 334 S.E.2d 691(1985);Walker v. State, 254 Ga. 149(1), 327 S.E.2d 475(1985);Turner v. State, 253 Ga. 762(1), 325 S.E.2d 149(1985);Bolton v. State, 253 Ga. 116, 117, 318 S.E.2d 138(1984).The conviction for cruelty to children is therefore vacated.

3.The trial court charged the jury in part as follows: "When you retire to the jury room, you are to determine whether or not the defendant is innocent or guilty first of murder or felony murder.Then you are to determine whether or not the defendant is innocent or guilty of cruelty to children.Should you find the defendant not guilty of murder, felony murder, or cruelty to children, you would then determine whether or not he's innocent or guilty of involuntary manslaughter and/or simple battery, and you are to go through the same options, you are to determine whether or not he's guilty or innocent of involuntary manslaughter.Should you find him not guilty of involuntary manslaughter, you then go to simple battery.Should you not find him guilty of simple battery, your verdict would be, we the jury find the defendant not guilty, and that would cover all of them."

The appellant contends that the above instructions erroneously required the jury to acquit him of malice murder, felony murder, and cruelty to children before they could even consider the lesser included offenses of involuntary manslaughter or simple battery, allegedly contrary to decisions such as Alexander v. State, 247 Ga. 780, 279 S.E.2d 691(1981) and cits.However, the instructions are not subject to this objection, because the trial court did not instruct the jury that the jury had to find the defendant not guilty of any particular offense prior to considering any...