Jackson v. State , 276 Ga. 408 ( 2003 )

Hunstein, Justice.

Jerome A. Jackson was indicted on charges of malice murder, felony murder based on aggravated assault, aggravated assault and two counts of involuntary manslaughter (based on reckless conduct and pointing a weapon) arising out of the shooting death of Princess Thomas. A jury acquitted him of malice murder and found him guilty of the remaining charges.¹ The trial court sentenced him to life imprisonment on the felony murder conviction. Jackson appeals from the denial of his motion for new trial arguing, inter alia, that his convictions for felony murder based upon aggravated assault and involuntary manslaughter based upon reckless conduct are mutually exclusive. We agree and reverse.

1. The jury was authorized to find that Jackson and the victim were involved in a romantic relationship. Jackson and his friend Larry Lovett were invited to the victim’s apartment the evening of June 14, 1999. The victim’s two cousins were visiting her at that time; both cousins saw Jackson in possession of a handgun he was keeping in his book bag. The victim and Jackson were talking in the kitchen when the cousins stepped out for a few minutes. Upon their return five or ten minutes later, the cousins saw Jackson and Lovett “rushing” from the apartment and found the victim collapsed in the kitchen. Expert testimony established that she had been shot once in the head from a distance of less than two feet. Lovett told the police that he saw Jackson put a .380 caliber handgun to the victim’s head and heard him threaten to kill her. The weapon then fired and the two men fled the apartment. Jackson threw the murder weapon into the trash where Lovett retrieved it; it was in his possession when he was arrested by police at a nearby MARTA station shortly after the homicide.

Jackson was arrested several weeks later in Florida. In his statement to the police, Jackson admitted he fired the gun but claimed the shooting was an accident. At trial Lovett repudiated his statement to the police; he testified that Jackson made no threats and that the shooting was an accident.

We find the evidence adduced was sufficient to enable a rational trier of fact to find Jackson guilty beyond a reasonable doubt of the crimes for which he was convicted. Jackson v. Virginia, 443 U. S. 307 (99 SC 2781, 61 LE2d 560) (1979).

2. Jackson challenges his convictions for felony murder and involuntary manslaughter predicated upon reckless conduct, contending that they were mutually exclusive because the verdict reflects the jury may have found that Jackson acted with both criminal intent and criminal negligence in regard to his actions involving the victim. The evidence adduced was sufficient to support a verdict based upon either offense. However, rather than instructing the jury not to return a mutually exclusive verdict, the jury here was expressly charged that it could render a verdict of guilty on every count in the indictment.²

Verdicts are mutually exclusive “where a guilty verdict on one count logically excludes a finding of guilt on the other. [Cits.]” United States v. Powell, 469 U. S. 57, 69 fn. 8 (105 SC 471, 83 LE2d 461) (1984). Accord Dumas v. State, 266 Ga. 797, 800 (471 SE2d 508) (1996) (verdicts are mutually exclusive where it is “both legally and logically impossible to convict [the accused] of both counts”).³ Looking at the essential elements for both felony murder and involuntary manslaughter, OCGA §§ 16-5-1 (c), 16-5-3, guilty verdicts on these offenses are not mutually exclusive as a matter of law because felony murder, like involuntary manslaughter, does not require proof of a criminal intent to murder to support a conviction. Smith v. State, 267 Ga. 372 (6) (477 SE2d 827) (1996).

That does not end the inquiry, however, because both felony murder and involuntary manslaughter are predicated upon the commission or omission of another offense or act. OCGA §§ 16-5-1 (c), 16-5-3. We agree with Jackson that a mutually exclusive verdict may be rendered in a particular case where the offenses or acts alleged in the indictment as underlying the felony murder and involuntary manslaughter counts reflect that the jury, in order to find the defendant guilty on both counts, necessarily reached “two positive findings of fact that cannot logically mutually exist.” Strong v. State, 223 Ga. App. 434, 436 (477 SE2d 866) (1996) (Beasley, C. J., dissenting), rev’d in Kimble v. State, 236 Ga. App. 391 (1) (512 SE2d 306) (1999). To determine whether this occurred, the alleged underlying offenses or acts must be carefully scrutinized.

Case law is clear that convictions for both felony murder and involuntary manslaughter do not exclude each other in those situations where the offenses underlying the convictions can be reconciled by looking to either the legal requirements for each underlying offense or to the unique facts adduced at trial. See, e.g., Carter v. State, 269 Ga. 420 (5) (499 SE2d 63) (1998) (where two-year-old victim sustained numerous potentially fatal injuries, felony murder/cruelty to children conviction not mutually exclusive of involuntary manslaughter/simple battery conviction); Smith v. State, supra, 267 Ga. at 376 (6) (convictions for felony murder/aggravated assault and involuntary manslaughter/reckless conduct not mutually exclusive where evidence showed defendant intentionally assaulted one victim, while acting recklessly toward another victim); Robinson v. State, 254 Ga. App. 842 (1) (563 SE2d 919) (2002) (convictions for aggravated assault and reckless conduct not mutually exclusive because charges involved two different victims); Davis v. State, 245 Ga. App. 402 (1) (538 SE2d 67) (2000) (verdicts for both first and second degree vehicular homicide not mutually exclusive where evidence of different traffic offenses underlay each conviction).

In the instant case, Jackson contends his felony murder and involuntary manslaughter guilty verdicts are mutually exclusive because they represent a positive but illogical finding by the jury that he acted with both criminal intent and criminal negligence in shooting the victim.

Felony murder requires the accused to possess the criminal intent to commit the underlying felony. See Chapman v. State, 275 Ga. 314 (3) (565 SE2d 442) (2002). Jackson was convicted of felony murder based on an assault, here aggravated into felony status by the use of a deadly weapon. OCGA § 16-5-21 (a) (2). There are two ways to commit an assault: when a person “[attempts to commit a violent injury to the person of another,” OCGA § 16-5-20 (a) (1), and when a person “[c]ommits an act which places another in reasonable apprehension of immediately receiving a violent injury.” Id. at (a) (2).

“[A]n aggravated assault with a deadly weapon based on OCGA § 16-5-20 (a) (1) cannot be committed by criminal negligence.” Dunagan v. State, 269 Ga. 590, 591-592 (2) (502 SE2d 726) (1998). Proof of criminal intent is essential for a conviction of an (a) (1) assault. Id.

Reckless conduct, on the other hand, is “an act of criminal negligence, rather than an intentional act, that causes bodily harm or endangers the bodily safety of another.” Lindsey v. State, 262 Ga. 665, 666 (2) (b) (424 SE2d 616) (1993). It involves “consciously disregarding a substantial and unjustifiable risk that [a person’s] act or omission will cause harm or endanger the safety of the other person.” OCGA § 16-5-60 (b). Proof of criminal negligence is essential for a conviction of reckless conduct. Grant v. State, 257 Ga. App. 678 (1) (c) (572 SE2d 38) (2002).

Given the different elements of these two offenses, we have held that a verdict of guilty as to aggravated assault based on OCGA § 16-5-20 (a) (1) requires a finding of an intentional infliction of injury, which precludes the element of criminal negligence in reckless conduct. Dunagan, supra; Sheats v. State, 210 Ga. App. 622 (1) (436 SE2d 796) (1993); Idowu v. State, 233 Ga. App. 418 (2) (504 SE2d 474) (1998). These cases recognize that the requisite mental states for these two offenses cannot logically and legally co-exist. “Mutual exclusion means that a finding of guilt on the essential elements of one count by definition excludes a finding of guilt based on an essential element of another count.” Gutierrez v. State, 235 Ga. App. 878, 880 (2) (510 SE2d 570) (1999). A finding of guilt on the essential element of criminal intent for aggravated assault based on OCGA § 16-5-20 (a) (1) thus excludes a finding of guilt based on the essential element of criminal negligence for reckless conduct.⁴

Looking to the facts in this case, we conclude that the jury’s verdict finding Jackson guilty of felony murder predicated upon an OCGA § 16-5-20 (a) (1) aggravated assault on Princess Thomas was mutually exclusive of a verdict finding Jackson guilty of involuntary manslaughter predicated upon reckless conduct in regard to the same act involving the same victim at the same instance of time. Accord Kolokouris v. State, 271 Ga. 597, 599 (2) (523 SE2d 311) (1999) (mutually exclusive verdict not returned when jury convicted accused only of reckless conduct and he “was not found guilty of any crime based on an intentional criminal act. [Cit.]”). The jury convicted Jackson of killing the victim with criminal intent and with criminal negligence, that is, of killing both with and without an intention to do so. “Obviously, the two verdicts were mutually exclusive.” Dumas v. State, supra, 266 Ga. at 800 (2).⁵

“[W]here there are mutually exclusive convictions, it is insufficient for an appellate court merely to set aside the lesser verdict, because to do so is to speculate about what the jury might have done if properly instructed, and to usurp the functions of both the jury and trial court.” (Footnote omitted.) Id. Thus, where, as here, it was both legally and logically impossible to convict Jackson of both felony murder and involuntary manslaughter, we must reverse both mutually exclusive convictions and order a new trial. Thomas v. State, 261 Ga. 854 (413 SE2d 196) (1992); Camsler v. State, 211 Ga. App. 826 (440 SE2d 681) (1994); see also Milanovich v. United States, 365 U. S. 551 (81 SC 728, 5 LE2d 773) (1961). Accord State v. Freeman, 272 Ga. 813 (2) (537 SE2d 92) (2000).

3. Because the issue may arise upon retrial, we address Jackson’s final enumeration in which he contends that the trial court erred by admitting testimony by the victim’s sister regarding a similar transaction. Cintrella Thomas testified that about a month prior to the victim’s death, Jackson made sexual overtures toward her and when she argued with him, he retrieved a gun from his book bag, pointed it at her and threatened to shoot her. Focusing upon the similarities between the assault and the victim’s death, see Farley v. State, 265 Ga. 622 (2) (458 SE2d 643) (1995), we find sufficient connection or similarity between the offense and the crime charged, so that “proof of the former tends to prove the latter.” Williams v. State, 261 Ga. 640, 642 (2) (b) (409 SE2d 649) (1991). Accordingly, the trial court did not err by admitting this testimony.

Judgment reversed.

All the Justices concur, except Carley, J., who dissents.

1 The crimes occurred on June 14-15, 1998. A DeKalb County grand jury indicted Jackson on September 14, 1998 and reindicted him on October 21, 1998. He was found guilty on November 5, 1999 and was sentenced November 12, 1999. His motion for new trial, filed November 29, 1999, was denied June 20, 2002. A notice of appeal was filed July 19, 2002. The appeal was docketed August 15, 2002 and was submitted for decision on the briefs.

2 The transcript reflects that the jury submitted the following question: “The prosecution mentioned in the closing that involuntary manslaughter charges and the aggravated assault/felony murder charges are mutually exclusive. Is this true?” After discussing the matter with counsel, the trial court instructed the jury that it could return a guilty verdict on every count if it found the State had proven its case beyond a reasonable doubt as to each count. Compare Dumas v. State, 266 Ga. 797, 800 (471 SE2d 508) (1996) (trial court acted correctly by requiring jury to resume deliberations after a mutually exclusive verdict was returned). We reject the State’s argument that defense counsel induced the error by arguing, erroneously, that any conflict in the verdict could be corrected at sentencing. Induced error cannot serve to render a void judgment valid.

3 Mutually exclusive verdicts, which cannot both stand, result in two positive findings of fact which cannot logically mutually exist. Inconsistent verdicts, which do not introduce invalidity, bespeak a positive finding of fact as to one charge and the failure to make a positive finding of fact as to the other. The latter, which results in an acquittal, does not constitute a negative finding of fact but may be explained as compromise, mistake, or lenity. We can neither speculate nor inquire.

Strong v. State, 223 Ga. App. 434, 436 (477 SE2d 866) (1996) (Beasley, C. J., dissenting). See Dumas v. State, supra, 266 Ga. at 799. See also United States v. Powell, supra.

4 While an offense committed by criminal negligence may be a lesser included offense of an offense committed with criminal intent, in that criminal negligence constitutes a less culpable mental state, see OCGA §§ 16-1-6, 16-2-1, a jury may not properly render verdicts of guilt as to both offenses in those factual situations involving the same act by the accused as to the same victim at the same instance of time. See, e.g., Dumas v. State, supra, 266 Ga. at 798 (2) (guilty verdicts on murder and vehicular homicide counts are mutually exclusive) and Foster v. State, 239 Ga. 302 (236 SE2d 644) (1977) (vehicular homicide lesser included offense of murder).

5 We recognize that while OCGA § 16-5-20 (a) (1) requires the defendant to act with a criminal intent in regard to the victim, subsection (a) (2) of that statute does not. “There is an intent of the accused that must be shown, but it is only the criminal intent to commit the acts which caused the victim to be reasonably apprehensive of receiving a violent injury, not any underlying intent of the accused in assaulting the victim. [Cit.]” Dunagan, supra, 269 Ga. at 594 (2) (b). Thus, a conviction for reckless conduct is not mutually exclusive of a conviction for a subsection (a) (2) assault. See Huguley v. State, 242 Ga. App. 645 (1) (a) (529 SE2d 915) (2000). However, subsection (a) (2) cannot be used to reconcile the conflict in Jackson’s verdict. A review of the language of the indictment reveals that it was sufficient to charge Jackson with an assault based on either (a) (1) or (a) (2) in regard to the aggravated assault underlying the felony murder charge. There was sufficient evidence adduced to support a verdict based upon either subsection and the jury was charged accordingly. However, the verdict form returned by the jury did not specify which aggravated assault subsection served as the underlying felony for the felony murder conviction. Thus, we cannot conclusively state that the verdict rested exclusively on the subsection (a) (2) ground so as to eliminate the reasonable probability that the jury might have returned a mutually exclusive verdict by finding Jackson acted with both criminal intent and criminal negligence at the same time as to the same victim. See Dunagan, supra.