Kipp v. State , 296 Ga. 250 ( 2014 )

In the Supreme Court of Georgia
Decided: November 17, 2014
S14A1248. KIPP v. THE STATE.
THOMPSON, Chief Justice.
This is the second appearance of this case in this Court. In Kipp v. State,
294 Ga. 55 (751 SE2d 83) (2013), appellant Deanna Kipp appealed
her convictions and sentences for four counts of felony murder, one
count of involuntary manslaughter, two counts of cruelty to children
in the first degree, one count of concealing the death of another, and
two counts of making false statements in connection with the abuse
and resulting death of her 18-month-old daughter, Kaylee Kipp, and
the abuse of her two other minor daughters, S. K. and A. K.
Id. at 55. She contended that the jury’s verdicts of involuntary manslaughter
and felony murder were mutually exclusive because “the jury may have found
that she acted with both criminal intent and criminal negligence in connection
with Kaylee’s death,” id. at 58-59, and that the trial court erred in sentencing
her. We held that the verdicts were not mutually exclusive, see id. at 58-61, but
that, because the case involved only a single homicide, the trial court erred in
sentencing her on each felony murder verdict, on the involuntary manslaughter
verdict, and on the aggravated assault verdict that was the underlying felony for
the first felony murder count, see id. at 61. Accordingly, we affirmed the
judgments of conviction, vacated in part, and remanded for resentencing. See
id.On January 10, 2014, the trial court resentenced Kipp, among other things,
to a single life sentence on one of the felony murder verdicts, and she filed a
timely notice of appeal. Her sole contention is that, under the rationale of Edge
v. State, 261 Ga. 865 (414 SE2d 463) (1992), the verdict of involuntary
manslaughter precluded a judgment of conviction on any of the felony murder
verdicts and that the trial court thus erred in sentencing her to life in prison for
felony murder.1 We disagree.
In Edge v. State, the jury found the defendant guilty of both felony
murder and voluntary manslaughter for the death of a single victim,
and the trial court entered judgment on both verdicts. See 261 Ga.
at 865. This Court reversed the felony murder conviction, holding
that “if there is but one assault and that assault could form the basis
of either felony murder or voluntary manslaughter, a verdict of
1
Because we resolve the Edge issue against appellant on the merits, we need not address
whether, for purposes of the law-of-the-case doctrine, that issue is the same as the mutually-
exclusive-verdict issue she raised in her first appeal. If it were, that doctrine would bar appellant
from raising the Edge issue in this appeal. See Foster v. State, 290 Ga. 599, 601-602 (723 SE2d 663)
(2012) (explaining that the law of the case bars a party from raising an issue in a second appeal that
was decided in the first appeal between the same parties).
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felony murder may not be returned if the jury finds that the assault
is mitigated by provocation and passion.” Id. at 866 (emphasis in
original). The Court reasoned that “[t]o hold otherwise would
eliminate voluntary manslaughter as a separate form of homicide
since, in that event, every voluntary manslaughter would also be a
felony murder.” Id. To prevent this outcome, the Court adopted a
modified merger rule that “precludes a felony murder conviction
only where it would prevent an otherwise warranted verdict of
voluntary manslaughter.” Id. at 867.
Morgan v. State, 290 Ga. 788, 791 (725 SE2d 255) (2012).
As appellant acknowledges, this Court has declined to extend the modified
merger rule of Edge to cases in which the jury returns verdicts of felony murder
and involuntary manslaughter. See Jones v. State, 263 Ga. 835, 840 (439 SE2d
645) (1994); Alexander v. State, 263 Ga. 474, 479 (435 SE2d 187) (1993);
McNeal v. State, 263 Ga. 397, 397-398 (435 SE2d 47) (1993). Appellant now
urges us to overrule those cases and extend the rule to such verdicts. However,
we continue to find the rationale of those cases sound and decline to overrule
them. See, e.g., McNeal, 263 Ga. at 398 (“The sequential charge in Edge
eliminated the jury’s full consideration of voluntary manslaughter and its
concomitant mitigating factor of provoked passion. See OCGA § 16-5-2 (a).
Involuntary manslaughter does not contain an element that mitigates a greater
offense. See OCGA § 16-5-3 (a). The absence of a mitigating factor makes our
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holding in Edge inapplicable.”). Accordingly, we affirm the trial court’s
imposition of a life sentence for felony murder.
Judgment affirmed. All the Justices concur.
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