Grace v. State , 262 Ga. 746 ( 1993 )

Benham, Justice,

concurring in part and dissenting in part.

I am in full accord with the majority’s affirmance of appellant’s convictions for the murder of Anthony Justiss, the aggravated battery of Warren Jackson, and armed robbery. However, I respectfully dissent from the affirmance of appellant’s conviction for the aggravated assault of Warren Jackson. That conviction derives from the injury Jackson received from the second shot fired at him during the armed robbery. In declining to merge the aggravated assault conviction into appellant’s aggravated battery conviction (derived from the injury Jackson received from the first shot fired at him during the armed robbery), the majority has determined that the second shot was a “separate crime.” However, in Montes v. State, 262 Ga. 473, 474-475 (421 SE2d 710) (1992), this court disapproved the statement in Pryor v. State, 238 Ga. 698 (1) (234 SE2d 918) (1977), that each of a series of; shots fired in quick succession constituted a “renewed assault.” Thus, this court did away with the infrequently-used prosecutorial tool of charging a defendant with a separate crime for every wound inflicted when those wounds were inflicted “in quick succession.” Unfortunately, the affirmance of appellant’s aggravated assault conviction breathes new life into that recently-disapproved prosecutorial tool. The majority’s recitation of the facts makes it clear that appellant’s accomplice fired three shots in quick succession: Jackson was shot; as he fell to the floor, he heard the shot that killed his coworker; “[m]oments later,” Jackson was shot again. Majority, p. 748. Had Jackson been killed by the second shot, we would not permit appellant to be convicted of both aggravated battery and murder (Montes, supra); had Jackson not been blinded by the first shot, we would not uphold two aggravated assault convictions.

Decided February 18, 1993. Edwards & Edwards, H. B. Edwards III, for appellant. H. Lamar Cole, District Attorney, James E. Hardy, Mark E. Mitchell, Assistant District Attorneys, Michael J. Bowers, Attorney General, Susan V. Boleyn, Senior Assistant Attorney General, Rachelle L. Strausner, Staff Attorney, for appellee.

As I am unable to distinguish this case from the holding in Montes, I cannot endorse the affirmance of appellant’s conviction for aggravated assault.