Banks v. the State ( 2014 )

FIRST DIVISION
PHIPPS, C. J.,
ELLINGTON, P. J., and MCMILLIAN, J.
NOTICE: Motions for reconsideration must be
physically received in our clerk’s office within ten
days of the date of decision to be deemed timely filed.
http://www.gaappeals.us/rules/
September 26, 2014
In the Court of Appeals of Georgia
A14A1084. BANKS v. THE STATE.
PHIPPS, Chief Judge.
Joshua Banks was indicted on charges of felony murder, possession of a
firearm by a convicted felon, and possession of a firearm during the commission of
a felony. A jury found him guilty of involuntary manslaughter1 as a lesser-included
offense of felony murder,2 and guilty of the firearm possession charges.3 Banks
appeals from the convictions and the denial of his motion for new trial, contending
that the court erred by failing to include on the verdict form reckless conduct as a
lesser-included offense of felony murder. We affirm.
1
OCGA § 16-5-3 (a).
2
OCGA § 16-5-1 (c).
3
OCGA § § 16-11-131; 16-11-106.
Viewed in the light most favorable to the verdict,4 the evidence showed the
following. On January 18, 2010, Banks was with several people in the parking lot of
an apartment complex. Banks displayed a handgun and “play[ed] with it.”5 He then
fired the gun in the air, said “that’s building 16,” and fired several shots into the
building. One of the bullets entered a window of an apartment in that building, fatally
striking thirteen-year-old T. S., who resided in the apartment.
In September 2010, police officers interviewed Banks about the shooting. After
officers advised Banks of his Miranda rights, he admitted that on the night of the
shooting, he had been drinking heavily and “just started shooting.” Banks claimed
that what happened had been an accident, and that he had been reflecting on how he
“had taken . . . this boy’s young life.”
In its charge, the court pertinently instructed the jury to consider whether
mitigating circumstances would cause the felony murder charge to be reduced to
involuntary manslaughter. The court then defined for the jury involuntary
manslaughter, instructed that involuntary manslaughter would be predicated on the
4
See Van v. State, 294 Ga. 464, 465 (1) (754 SE2d 355) (2014).
5
The state introduced evidence showing that Banks previously had been
convicted of a felony.
2
offense of reckless conduct, and defined reckless conduct. The verdict form submitted
to the jury listed involuntary manslaughter as a lesser-included offense of felony
murder, but did not list reckless conduct as a lesser-included offense.6
In his motion for new trial, Banks challenged, inter alia, the court’s failure to
include reckless conduct on the verdict form as a lesser-included offense of felony
murder. In its order denying the motion, the court stated that a separate reckless
conduct option was not required to be on the verdict form because there was no
evidence of reckless conduct other than that which directly related to the death of the
victim; the reckless conduct charge “had to be in the context of involuntary
manslaughter.”
6
The verdict form showed:
COUNT ONE - FELONY MURDER
__ . . . NOT GUILTY of Felony Murder.
OR
__ . . . GUILTY of Felony Murder.
OR
__. . . GUILTY of the lesser included offense of Involuntary Manslaughter.
3
1. Although Banks does not challenge on appeal the sufficiency of the
evidence, a rational jury was authorized to find him guilty beyond a reasonable doubt
of the crimes for which he was convicted.7
2. Banks contends that reversal is required because the trial court failed to
include on the verdict form reckless conduct8 as a lesser-included offense of felony
murder. Assuming that Banks informed the court of this specific objection before the
jury retired to deliberate,9 the contention is nonetheless without merit.
7
See OCGA § 16-5-3 (a) (“A person commits the offense of involuntary
manslaughter in the commission of an unlawful act when he causes the death of
another human being without any intention to do so by the commission of an
unlawful act other than a felony”; this offense is punishable by imprisonment of not
less than one year nor more than ten years (i.e., a felony (OCGA § 16-1-3))); Jackson
v. Virginia, 443 U. S. 307 (99 SCt 2781, 61 LE2d 560) (1979); Roscoe v. State, 288
Ga. 775 (1) (707 SE2d 90) (2011) (possession of a firearm by a convicted felon);
Hickson v. State, 308 Ga. App. 50, 51 (1) (706 SE2d 670) (2011) (possession of a
firearm during the commission of a felony); Snell v. State, 306 Ga. App. 651, 653 (1)
(703 SE2d 93) (2010) (involuntary manslaughter).
8
OCGA § 16-5-60 (“Reckless conduct . . . (b) A person who causes bodily
harm to or endangers the bodily safety of another person by consciously disregarding
a substantial and unjustifiable risk that his act or omission will cause harm or
endanger the safety of the other person and the disregard constitutes a gross deviation
from the standard of care which a reasonable person would exercise in the situation
is guilty of a misdemeanor.”).
9
At trial, Banks argued that “reckless conduct” should be included on the
verdict form as a lesser-included offense of involuntary manslaughter. See
Cheddersingh v. State, 290 Ga. 680, 682-683 (2), n. 2 (724 SE2d 366) (2012) (stating
4
“If a death occurs as the result of reckless conduct, a defendant is guilty of
involuntary manslaughter. Here, there was no evidence of [Banks’s] allegedly
reckless conduct other than that directly related to the death of the victim.”10 Thus,
as the trial court stated, a charge on reckless conduct had to be in the context of
involuntary manslaughter.11 In this case, the verdict form was consistent with the jury
charges and was properly adjusted to the evidence.12 Accordingly, the court did not
err by failing to include reckless conduct on the verdict form.13 We note that the cases
that appellant had a duty to inform the trial court of the specific objection to the
verdict form before the jury retired to deliberate; failure to object in accordance with
OCGA § 17-8-58 (a) “shall preclude appellate review of such portion of the jury
charge, unless such portion of the jury charge constitutes plain error which affects
substantial rights of the parties”; further, treating preprinted verdict form as a portion
of the jury instructions in determining whether there was error in jury instructions).
10
Simmons v. State, 266 Ga. 223, 229 (7) (b) (466 SE2d 205) (1996) (citation
omitted); Reed v. State, 238 Ga. App. 297, 298 (517 SE2d 824) (1999); see Snell,
supra.
11
Simmons, supra; Snell, supra; Reed, supra.
12
See Reed, supra.
13
Reed, supra. See generally Arvinger v. State, 276 Ga. App. 127, 129 (2) (622
SE2d 476) (2005) (verdict form was not required to remind jury of its alternatives as
to lesser-included offenses); McElroy v. State, 244 Ga. App. 500, 502 (1) (b) (536
SE2d 188) (2003) (finding no error in the form of the verdict where the form did not
include lesser-included offenses; noting that appellant had cited no precedent which
would have required the trial court to submit a special verdict form reminding the jury
of its options as to lesser-included offenses).
5
relied upon by Banks are inapposite and do not support his position that the trial court
must include on a verdict form reckless conduct as a lesser-included offense of felony
murder.14
Judgment affirmed. Ellington, P. J., and McMillian, J., concur.
14
Cases cited by Banks include: Manzano v. State, 282 Ga. 557, 559-560 (3)
(a) (651 SE2d 661) (2007) (felony murder conviction reversed where trial court
refused to give defendant’s requested charge on involuntary manslaughter with
reckless conduct as the predicate misdemeanor); Reed v. State, 279 Ga. 81, 86-87 (7)
(610 SE2d 35) (2005) (defendant was not entitled to a charge on misdemeanor
involuntary manslaughter (OCGA § 16-5-3 (b) - regarding commission of a lawful
act in an unlawful manner) because evidence did not support such a charge);
Reinhardt v. State, 263 Ga. 113-114 (2) (428 SE2d 333) (1993) (felony murder and
arson convictions reversed where trial court refused defendant’s request to charge on
involuntary manslaughter and reckless conduct; Court noted that there was evidence
that the setting of the fire was the result of reckless conduct), overruled on other
grounds by Vergara v. State, 283 Ga. 175, 177-178 (1) (657 SE2d 863) (2008);
Allison v. State, 288 Ga. App. 482, 485 (1) (654 SE2d 628) (2007) (no death
resulted); Beaton v. State, 255 Ga. App. 901, 902-903 (2) (567 SE2d 113) (2002) (no
death resulted); McDonald v. State, 224 Ga. App. 411, 412-413 (481 SE2d 1) (1997)
(no death resulted).
6