Sullivan v. State , 279 Ga. 893 ( 2005 )

HUNSTEIN, Presiding Justice.

James V. Sullivan was indicted by a Fulton County grand jury in 1998 on charges of malice murder, felony murder, aggravated assault and burglary arising out of the 1987 shooting death of his wife, Lita Sullivan.¹ The State has filed notice of its intent to seek the death penalty. Sullivan was previously tried and acquitted in 1992 in Federal district court on charges that he violated 18 USC § 1952A (use of interstate commerce facilities in the commission of murder-for-hire). Sullivan filed a motion contending, inter alia, that because of his acquittal on the Federal charges, the State was barred by OCGA § 16-1-8 (c) from prosecuting him on the State charges. The trial court denied Sullivan’s motion and we granted his petition for interim review in order to address this ruling. We conclude that OCGA § 16-1-8 (c) does not bar the State from prosecuting Sullivan because the Federal prosecution was for a crime not within the concurrent jurisdiction of this State. Accordingly, we affirm the trial court.

1. OCGA § 16-1-8 (c) provides that

[a] prosecution is barred if the accused was formerly prosecuted in a district court of the United States for a crime which is within the concurrent jurisdiction of this state if such former prosecution resulted in either a conviction or an acquittal and the subsequent prosecution is for the same conduct, unless each prosecution requires proof of a fact not required in the other prosecution or unless the crime was not consummated when the former trial began.

The plain language of OCGA § 16-1-8 (c) creates an unambiguous threshold question: was the prior Federal prosecution for a crime within the concurrent jurisdiction of the State? When that question is answered in the negative, OCGA § 16-1-8 (c) presents no bar to a subsequent State prosecution. Unless the former Federal prosecution was for a crime which is within the concurrent jurisdiction of this State, OCGA § 16-1-8 (c) is inapplicable regardless of any overlap in the accused’s conduct that is the subject matter of the two prosecutions.² Accord Dorsey v. State, 237 Ga. 876, 877 (230 SE2d 307) (1976) (bar in subsection (c) applies only if former prosecution was “for a crime over which the federal court had jurisdiction and over which the superior court had concurrent jurisdiction”).

Concurrent jurisdiction is “[¡jurisdiction exercised by different courts, at [the] same time, over [the] same subject matter, and within [the] same territory, and wherein litigants may, in [the] first instance, resort to either court indifferently.” Black’s Law Dictionary 264 (5th ed. 1979). However, in the context of OCGA§ 16-1-8 (c), “concurrent jurisdiction” does not mean that the State must stand on equal footing with the Federal authorities and be able to prosecute an accused in a state court for violation of the Federal statute, in the same manner that Georgia civil courts can entertain causes of action arising solely out of Federal civil law.³ Such a literal reading of OCGA § 16-1-8 (c) would effectively repeal the statute altogether. See 18 USC § 3231 (United States district courts “shall have original jurisdiction, exclusive of the courts of the States, of all offenses against the laws of the United States”). Under that same rationale, a Federal statute need not expressly preclude the State from prosecuting an accused in a state court under any applicable counterpart in the Criminal Code of Georgia in order to find that no concurrent jurisdiction exists.

In determining what “concurrent jurisdiction” means in the context of OCGA § 16-1-8 (c), we look to the unambiguous statutory language and interpret it so as to give effect to the plain and unequivocal intent of the Legislature. See generally Abdulkadir v. State, 279 Ga. 122, 123 (2) (610 SE2d 50) (2005). OCGA § 16-1-8 (c) focuses on whether the “crime” for which the accused was prosecuted in Federal court “is within the concurrent jurisdiction of this state.” (Emphasis supplied.) This statutory language unambiguously looks to whether there is an existing Georgia penal provision comparable to the Federal crime over which a state court has jurisdiction. Where an accused can be prosecuted in either State court or Federal district court indifferently for the same crime, then that crime is within the concurrent jurisdiction of this State. Conversely, no concurrent jurisdiction exists where no Georgia counterpart exists to the Federal crime so that the accused could be prosecuted for that crime only in a Federal district court. This interpretation gives full meaning and effect to all of the language of OCGA § 16-1-8 (c) and is consistent with the position taken in the Committee Notes, Code Ann. Ch. 26-5, regarding its predecessor provision, Code Ann. § 26-507 (c), that “[s]ubsection (c) results in protection of the accused against prosecution by the State of Georgia if his act had previously resulted in prosecution by the Federal Government on the same terms as though the prior prosecution had been by the State of Georgia.” (Emphasis supplied.)⁴

Contrary to the dissent’s position, nothing in our recognition of the threshold “concurrent jurisdiction” requirement renders meaningless the three-step analysis created by the plain and unambiguous language of OCGA § 16-1-8 (c). This can be easily demonstrated by using the dissent’s own hypothesis, which assumes the Legislature had enacted a statute comparable to 18 USC § 1952A. Scenario One: a defendant uses a telephone to arrange for the commission of the murder of victim A. If the defendant is prosecuted in the district court for this crime and the prosecution results in the defendant’s conviction or acquittal, OCGA § 16-1-8 (c) would bar a subsequent State prosecution of the defendant for using a telephone to arrange for victim A’s murder because the State prosecution would be for a crime within the State’s concurrent jurisdiction, arising out of the same conduct, and neither prosecution required proof of a fact not required in the other prosecution. Scenario Two: a defendant uses the telephone to arrange for the commission of victim A’s murder and for the delivery of cocaine taken from victim A’s body. The defendant is prosecuted and convicted in the district court for using the phone to murder victim A, but OCGA § 16-1-8 (c) does not bar the State’s prosecution of the defendant for using the phone to arrange for the delivery of cocaine. Although under step 1 concurrent jurisdiction exists in Georgia for the prosecution of the defendant for the crimes of using the phone to arrange either the murder or the drug crime, see OCGA§ 16-13-32.3 (a); Division 2, infra, under step 2 of the statutory analysis the former prosecution for the murder-based crime was not for the same conduct as the State’s cocaine-based crime. Scenario Three: a defendant places one telephone call to arrange for the murders of both victim A and victim B. The defendant is prosecuted and convicted in the district court for using the phone to murder victim A, but OCGA § 16-1-8 (c) does not bar the State’s prosecution of the defendant for using the phone to arrange for the murder of victim B because although under step 1 concurrent jurisdiction exists in Georgia for the prosecution of the defendant for the crime and under step 2 the former prosecution was for the same conduct, under step 3 each prosecution required proof of a fact not required in the other prosecution (i.e., the different identities of the two victims). As these scenarios demonstrate, OCGA § 16-1-8 (c) retains full meaning and viability under our interpretation.⁵

2. Applying the correct analysis of OCGA § 16-1-8 (c), we turn to the threshold issue in this case, namely, whether the 1992 Federal prosecution of Sullivan for violating 18 USC § 1952A (now codified as 18 USC § 1958) was for a “crime which is within the concurrent jurisdiction of this state.” To make that determination, it is necessary to examine 18 USC § 1952A and compare it to the Criminal Code of Georgia, OCGA § 16-1-1 et seq.

18 USC § 1952A, captioned “[u]se of interstate commerce facilities in the commission of murder-for-hire,” was codified in the racketeering chapter of Title 18 (Crimes and Criminal Procedure) of the United States Code and, at the time of Sullivan’s prosecution in 1992, provided that

[wjhoever travels in or causes another ... to travel in interstate or foreign commerce, or uses or causes another... to use the mail or any facility in interstate or foreign commerce, with intent that a murder be committed in violation of the laws of any State or the United States as consideration for the receipt of, or as consideration for a promise or agreement to pay, anything of pecuniary value, or who conspires to do so, . . . and if death results, shall be punished by death or life imprisonment. . . .⁶

Id. at (a). The statute defines a “facility of interstate commerce” as including “means of . . . communication.” Id. at (b) (2). Sullivan’s Federal indictment alleged in four counts that he violated this statute by using or causing another to use a telephone to place long distance calls between Atlanta and Palm Beach, Florida, with the intent that the murder of Lita Sullivan be committed in exchange for a promise to pay something of pecuniary value.⁷

After Sullivan’s acquittal on these charges in 1992, the State indicted him in 1998 on charges of malice murder, felony murder predicated upon aggravated assault, felony murder predicated upon burglary, aggravated assault and burglary. The State did not indict Sullivan on any charge that he unlawfully used or caused another to use a telephone or other communication device to arrange the commission of his wife’s murder, nor could the State do so. That is because no such crime exists in Georgia.

A review of the Criminal Code of Georgia reveals that it is unlawful to solicit murder, see OCGA § 16-4-7 (a); to conspire to commit murder, see OCGA § 16-4-8; to attempt to commit murder, see OCGA § 16-4-1; to commit murder itself, OCGA § 16-5-1; and to be a party to the crime of murder, see OCGA § 16-2-20, including situations where a party “[i]ntentionally . . . hires ... or procures another to commit the crime.” Id. at (4). However, nothing in the Criminal Code of Georgia makes it a crime to use or cause another to use a telephone or other communication facility with the intent to commit or cause the commission of any act constituting murder.

It is a crime in Georgia to use a telephone to commit or facilitate the commission of a felony, but only for those felonies involving controlled substances under Chapter 13 of our Criminal Code. OCGA § 16-13-32.3 (a) provides that the use of a “communication facility,” e.g., a telephone,⁸ is a crime when the phone is used “in committing or in causing or facilitating the commission of any act or acts constituting a felony under [Chapter 13].” Under OCGA § 16-13-32.3 (a) an individual can be prosecuted for each separate use of a telephone to arrange for illegal drugs to be sold, purchased, or transported, among other crimes, notwithstanding the fact that the individual may also be criminally liable for actually selling, purchasing or transporting the drugs. See, e.g., Capers v. State, 273 Ga. App. 427 (1) (615 SE2d 126) (2005) (distributing cocaine and using a pager to facilitate a violation of the GCSA); Russell v. State, 243 Ga. App. 378 (532 SE2d 137) (2000) (possession of marijuana with intent to distribute and using a telephone to arrange the pickup of the marijuana); Hayes v. State, 203 Ga. App. 143 (416 SE2d 347) (1992) (distributing cocaine and using a telephone to arrange the drug deal); Cassie v. State, 192 Ga. App. 484 (385 SE2d 129) (1989) (trafficking in cocaine, possessing cocaine with intent to distribute and using a “beeper” with telephone callbacks); Baptiste v. State, 190 Ga. App. 451 (379 SE2d 165) (1989) (violation of OCGA § 16-13-30 and using a series of telephone calls to purchase cocaine). As these cases demonstrate, the use of a telephone or other communication facility to facilitate a drug felony is a crime in and of itself, separate and distinct from the felonies the telephone is used to facilitate. OCGA § 16-13-32.3 thus serves to rebut Sullivan’s and the dissent’s argument that the statutory language in 18 USC § 1952A setting forth the “method” in which the murder is facilitated is an extraneous jurisdictional element that should not be used to “set apart” the crime for double jeopardy purposes.⁹

Although the Legislature enacted OCGA § 16-13-32.3 as the Georgia counterpart to 21 USC § 843 (b), the Federal crime of using a telephone to arrange for the commission of a drug crime, see Hunt v. State, 196 Ga. App. 694 (3) (396 SE2d 802) (1990), there is no Georgia counterpart to 18 USC § 1952A. The Legislature has not chosen to make it a crime in Georgia to use a telephone to arrange for the commission of murder, nor is there any penal statute with provisions comparable to 18 USC § 1952A in the Georgia Criminal Code.¹⁰ That the State could entertain concurrent jurisdiction with Federal courts over crimes involving the use of a communication facility to commit murder-for-hire,¹¹ if it chose to enact such legislation, does not change the fact that in the absence of such legislation no Georgia court had in 1992 or has now concurrent jurisdiction over the crime for which Sullivan was prosecuted in a United States district court. No concurrent jurisdiction exists because no Georgia state court could serve as a proper forum for resolution of criminal charges arising out of the unlawful use of a telephone to arrange the commission of murder-for-hire.

Thus, in this case the threshold question posed by OCGA § 16-1-8 (c) must be answered in the negative, rendering it irrelevant how Sullivan’s Federal and State prosecutions would fare under the analysis set forth in the rest of the statute. Accordingly, we hold that the 1992 Federal prosecution of Sullivan cannot serve to bar the State’s prosecution of Sullivan for the crimes of malice murder, felony murder, aggravated assault and burglary.

3. We decline Sullivan’s suggestion that we abandon our adherence to the long-standing doctrine of dual sovereignty. See, e.g., Satterfield v. State, 256 Ga. 593 (2) (351 SE2d 625) (1987).

4. We find no error in the trial court’s ruling that collateral estoppel does not apply because the “same parties” are not attempting to relitigate facts necessarily found in the earlier prosecution. See generally Simmons v. State, 276 Ga. 525, 527 (579 SE2d 735) (2003).

Judgment affirmed.

All the Justices concur, except Sears, C. J., Hines and Melton, JJ., who dissent.

1 Sullivan and the victim were involved in contentious divorce proceedings. Sullivan was very wealthy and the victim was challenging the post-nuptial agreement she had signed. In January 1987, Sullivan was living in Palm Springs, Florida and the victim was living in Atlanta. On January 16, 1987, the morning of a scheduled hearing on the divorce, the victim opened her front door to someone bearing flowers bought at a local florist shop and was shot to death in her foyer. Sullivan was at his Florida home at the time. Motive and circumstantial evidence, including telephone calls between Sullivan’s home and an Atlanta motel room before the murder and calls to an 1-85 rest stop shortly after the murder, pointed to Sullivan. Evidence from a witness who first came forward in 1998 led to Sullivan’s indictment in this case.

2 It is only where concurrent jurisdiction exists that the courts must then turn to the next step in the statutory analysis, namely, whether the Federal prosecution resulted in a conviction or an acquittal and, if it did so, whether the State’s prosecution was for the same conduct. As plainly expressed by the language in OCGA § 16-1-8 (c), the accused’s conduct comes into issue if, and only if, the former Federal prosecution was for a crime within this State’s concurrent jurisdiction. Should the court determine that the State’s prosecution was for the same conduct, subsection (c) would bar the prosecution unless “each prosecution require [d] proof of a fact not required in the other prosecution” or unless the crime “was not consummated when the former trial began.” Id.

3 See, e.g., City of Cave Spring v. Mason, 252 Ga. 3 (310 SE2d 892) (1984) (Georgia courts can adjudicate 42 USC § 1983 claims); Neal v. CSX Transp., 213 Ga. App. 707 (1) (445 SE2d 766) (1994) (FELA claims); Collins v. Dept. of Transp., 208 Ga. App. 53 (429 SE2d 707) (1993) (Title VII claims).

4 A contrary interpretation is not supported, by our earlier cases interpreting OCGA § 16-1-8 (c) because the existence of concurrent jurisdiction was neither raised nor discussed therein. See Torres v. State, 270 Ga. 79 (1) (508 SE2d 171) (1998) and Satterfield v. State, 256 Ga. 593 (2) (351 SE2d 625) (1987) (relying solely upon the clear difference in facts necessary to prove the charges); Dorsey, supra, 237 Ga. at 876 (parties stipulated charged offenses were the same and arose out of same conduct).

5 Rather, it is the dissent’s interpretation that renders utterly unnecessary and meaningless a part of the statute, by ignoring the “concurrent jurisdiction” threshold requirement plainly set forth in the statute.

6 The current version of 18 USC § 1958, as amended in December 2004, changed “any facility in interstate” commerce to “any facility o/interstate” commerce. This change indicates the intent of Congress to favor the interpretation of the statute by the Fifth and Seventh Circuit Courts of Appeal over that given it by the Eleventh and Sixth Circuits, thereby authorizing Federal prosecution in situations involving only intrastate use of a facility of interstate commerce without the presence in the case of any actual interstate criminal activity. See Murphy, Boundaries of its Commerce Power with an Amendment to the Federal Murder-for-Hire Statute, 13 Wm. & Mary Bill of Rts. J. 1349 (2005).

7 We note that the record fails to contain a certified copy of Sullivan’s Federal prosecution, but the State raised no objection and has affirmatively acknowledged the facts surrounding that earlier prosecution.

8 OCGA § 16-13-32.3 (a) defines “communication facility solely for purposes of that Code section as “any and all public and private instrumentalities used or useful in the transmission of writing, signs, signals, pictures, or sounds of all kinds and includes mail, telephone, wire, radio, computer or computer network, and all other means of communication.”

9 The dissent completely ignores the Legislature’s enactment of OCGA § 16-13-32.3 (a), and in light of that statute it is difficult to fathom the dissent’s claim that the Legislature “would never enact” a statutory counterpart to 18 USC § 1952A to make it a crime in Georgia to use a telephone or other communication facility to arrange for the commission of murder-for-hire.

10 It is for the legislature, not the courts, to identify conduct that warrants treatment as a crime and affix the punishment for that conduct. Wood v. State, 219 Ga. 509, 514 (134 SE2d 8) (1963). “ ‘A crime is a felony or not, according to the penalty fixed by the legislature; and it is not within the province of the courts to help out the legislature. Under our system, that body has exclusive jurisdiction over the subject, and if, by mistake or otherwise, it has failed to provide for the punishment of a crime, it must go unpunished.’ ” (Emphasis omitted.)

11 See 18 USC § 3231 (“[n]othing in this title shall he held to take away or impair the jurisdiction of the courts of the several States under the laws thereof’); United States v. Marek, 238 F3d 310, 323 (5th Cir. 2001) and United States v. Dickson, 645 FSupp. 727, 730 (1) (D.C.C. 1986) (Congress recognized 18 USC § 1958 (former 18 USC § 1952A) would permit concurrent jurisdiction with state and local forces).