Turner v. State , 283 Ga. 17 ( 2008 )

CARLEY, Justice,

dissenting.

I agree with the majority that the verdicts in this case are not mutually exclusive, since the jury acquitted Appellant of malice murder and found instead that he was guilty of felony murder during the commission of aggravated assault. See Shepherd v. State, 280 Ga. 245, 248 (1) (626 SE2d 96) (2006). Verdicts which find a defendant not guilty of malice murder, but guilty of felony murder, are entirely consistent. I also believe that the majority correctly holds that Appellant’s enumeration of error actually is predicated on the inconsistent verdicts rule, which was abolished by this Court in Milam v. State, 255 Ga. 560, 562 (2) (341 SE2d 216) (1986). “The Milam ruling stands for the proposition that a defendant cannot attack as inconsistent a jury verdict of guilty on one count and not guilty on a different count. [Cit.]” Dumas v. State, 266 Ga. 797, 799 (2) (471 SE2d 508) (1996). However, I disagree with the majority’s conclusion that the prohibition against challenging verdicts as inconsistent does not apply here. I submit that the rule established by Milam is clearly applicable to the verdicts in this case, and demands an affirmance of the judgment and sentence entered on the jury’s finding that Appellant was guilty of felony murder. Therefore, I respectfully dissent.

Abolition of the inconsistent verdicts rule rests on “the principle that it is not generally within the trial court’s power to make inquiries into the jury’s deliberations, or to speculate about the reasons for any inconsistency between guilty and not guilty verdicts. [Cit.]” Dumas v. State, supra. “The reason could be an error by the jury in its consideration or it could be mistake, compromise, or lenity, but as a matter of prudence, the conviction . . . should be upheld so long as the evidence will support it. [Cit.]” King v. Waters, 278 Ga. 122, 123 (1) (598 SE2d 476) (2004). The majority concludes that the prohibition against a defendant’s reliance on the inconsistent verdicts rule does not apply here because

we need not speculate whether the jury verdict is the product of lenity or of legal error. The jury verdict form makes it clear the jury determined [A]ppellant was not guilty of malice murder because the jury found his action in shooting the victim to have been justified. . . . [T]he jury’s finding of justification as to the malice murder count applies to the felony murder and aggravated assault charges based on the same conduct.

Majority opinion, p. 21. What the majority fails to acknowledge expressly, however, is that, with regard to the malice murder count, the verdict form only provided the jurors with the opportunity to return a not guilty verdict based upon the defense of justification. As footnote 2 of the majority opinion indicates and as a review of the attached copy of the verdict form clearly shows, the jury was not given the option of finding that Appellant was not guilty of malice murder because he did not act with malice aforethought or for any reason other than justification. Thus, it is obvious from a consideration of the totality of the verdict form, rather than its isolated elements, that the two verdicts were not the product of the jurors’ own inconsistent determination that his act of shooting the victim was and was not justified. Instead, it is unquestionably the result of the verdict form which erroneously limited their determination of whether Appellant was not guilty of malice murder to a finding on the issue of justification. If the jury found that he was guilty of felony murder, but not guilty of malice murder, it was required to signify the latter finding by adopting the verdict form’s unnecessary specification of justification as the reason.

Thus, I agree that there is no need to speculate why the jury returned the inconsistent verdicts in this case. However, contrary to the majority’s analysis, the inconsistency is without doubt the result of the “legal error” exemplified by the incomplete and confusing verdict form itself. As the majority concedes, Milam’s prohibition against reliance on the inconsistent verdicts rule extends to a case, such as this, in which the verdict which the defendant challenges on appeal may be the product of error or mistake. Compare King v. Waters, supra at 122 (inconsistency not based on mistake or error, but on “an appellate or a habeas corpus court’s ruling”). Here, the error or mistake in the verdict form was waived by Appellant when he did not object and acquiesced in its submission to the jury. See Jones v. State, 279 Ga. 854, 860 (7) (a) (622 SE2d 1) (2005). The anomalous effect of the majority opinion is to permit Appellant to convert his waiver of the error or mistake in the verdict form into a basis for evading Milam’s prohibition against asserting the inconsistency of verdicts. The absence of speculation as to the reason why the jury returned inconsistent verdicts should not obviate the holding in Milam, if that non-speculative reason is one of the very grounds cited in that decision as support for adoption of a prohibition against a defendant’s reliance on the inconsistent verdicts rule. The inconsistent verdict rule was abolished because the inconsistency could be the result of a mistake or an error. I do not see the logic in reviving the rule when mistake or error is, in fact, the explanation for the inconsistency.

A “defendant is entitled to the benefit of the doubt in the construction of an ambiguous verdict ([cit.])____” Lindsey v. State, 262 Ga. 665, 666 (1) (424 SE2d 616) (1993). Here, however, the verdicts are not ambiguous, but inconsistent as to whether the jury found that the shooting was or was not justified. The trial court instructed the jury to consider whether Appellant’s conduct was justified and, if it found that it was, to acquit him on all counts. If we presume, as we must, that the jurors followed the trial court’s charge, then they would have acquitted him on all counts if they found that the shooting was justified. However, instead, the jury found him not guilty only on the malice murder count. The verdict form did not provide the jury with a chance to return a verdict which found that Appellant was not guilty of malice murder even though the shooting was unjustified. Having found that he was guilty of felony murder during the commission of an unjustified aggravated assault, the jury could express its finding that he was not guilty of malice murder only by completing that part of the verdict form which specified justification as ground for acquittal of that offense. Under these circumstances, I do not believe that Appellant can benefit from his acquiescence in the submission of an erroneous or mistaken verdict form which made it impossible for the jury to return consistent findings that, although the shooting was unjustified, he was guilty of felony, but not malice, murder.

Decided January 8, 2008 Reconsideration denied January 28, 2008. David L. Smith, Leonard M. Geldon, for appellant. Donald N. Wilson, District Attorney, Charles D. Gafnea, Assistant District Attorney, ThurbertE. Baker, Attorney General, Elizabeth A. Harris, Assistant Attorney General, for appellee.

[W]here truly inconsistent verdicts have been reached, “(t)he most that can be said... is ... that either in the acquittal or the conviction the jury did not speak their real conclusions, but that does not show that they were not convinced of the defendant’s guilt.” [Cit.]

United States v. Powell, 469 U. S. 57, 64-65 (105 SC 471, 83 LE2d 461) (1984) (cited with approval in Milam v. State, supra).

The evidence is sufficient to authorize a rational trier of fact to find proof beyond a reasonable doubt that Appellant was guilty of felony murder during the commission of an unjustified aggravated assault. Thus, the trial court did not err in entering the judgment of conviction and life sentence on the verdict of guilt as to that offense. The trial court did, however, err in entering a judgment of conviction and concurrent 20-year sentence on the verdict of guilt on the separate count of aggravated assault. Bolston v. State, 282 Ga. 400, 401 (2) (651 SE2d 19) (2007). Therefore, I dissent to the reversal of the judgment in this case, and believe that it should be affirmed in part and vacated in part. Bolston v. State, supra.

I am authorized to state that Justice Thompson joins in this dissent.