Zechariah Presley v. State

THIRD DIVISION
MCFADDEN, C. J.,
DOYLE, P. J., and HODGES, 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.
https://www.gaappeals.us/rules
DEADLINES ARE NO LONGER TOLLED IN THIS
COURT. ALL FILINGS MUST BE SUBMITTED WITHIN
THE TIMES SET BY OUR COURT RULES.
February 2, 2021
In the Court of Appeals of Georgia
A20A1928. PRESLEY v. THE STATE. DO-067 C
DOYLE, Presiding Judge.
Zechariah Presley was accused in an indictment of committing voluntary
manslaughter, involuntary manslaughter, and violation of oath by a public officer.
Following a jury trial, he was found guilty of the violation of oath charge and found
not guilty of the two manslaughter counts. He now appeals from the denial of his
motion in arrest of the judgment, contending that the trial court erred because (1) his
conviction was unlawfully augmented from the narrowly drawn indictment without
support from the evidence, and (2) his conviction is not subject to the abolition of the
inconsistent verdict rule, pursuant to Turner v. State.1 For the reasons that follow, we
affirm.
1
283 Ga. 17 (655 SE2d 589) (2008).
At Presley’s trial, there was evidence showing that in June 2018, Presley was
employed as a police officer with the Kingsland Police Department. While he was in
uniform on duty during an overnight shift, he encountered a vehicle driven by Tony
Green, whom he knew from an encounter a few months earlier. The vehicle was
parked in a store parking lot, and Presley had learned in the prior encounter that
Green’s license was suspended, so he believed that Green might have been driving
while his license was suspended. Presley entered the store and began to observe
Green, planning to ask whether his license had been restored, but he noticed that
Green “seemed off that night.” Green noticed Presley, “rushed” back to his vehicle,
and drove away, screeching his tires in the process. Presley followed Green and used
his radar to clock Green’s speed at “53 or 55” in a 35-mile-per-hour speed limit zone.
Presley activated his police lights and attempted to stop Green, and Green’s
vehicle “left the roadway, went into a ditch, and crashed into some . . . trees.” As
Presley brought his police cruiser to a stop, he was surprised to see that Green had a
passenger, and Presley grew worried as the two men quickly exited the vehicle. The
passenger ran into the woods, and Green initially fled but immediately returned to the
vehicle to retrieve “a small dark object” that Presley could not see clearly in the
darkness. Presley reported the situation to dispatch and began pursuing Green on foot.
2
Presley shouted commands for Green to stop, but Green ignored them and kept
running. After chasing Green for a few hundred yards, Presley fired his taser at
Green; the taser leads did not discharge, and Presley realized that it had
malfunctioned.2 During this interaction, Green fell to the ground, and Presley
approached and attempted to push him flat to the ground to handcuff him. Green
resisted and knocked Presley onto his back, and as the two men continued to struggle,
Presley was tased in his arm.3 Presley felt Green grab at his duty belt and as he
attempted to tase Green, Green knocked it out of his hands. Presley then reached for
his firearm, and Green got off of Presley and began to run away toward their vehicles,
briefly out of Presley’s line of vision. Upon locating Green, Presley fired at him
several times, killing him. Presley testified at trial that Green had his arm “pointed
outward toward me,” that he feared for his safety because Green had retrieved
something from his vehicle, and that he had observed Green reaching toward his
waistband during the chase. Trial evidence showed that Green was shot in the chest,
2
The air cartridge that propels the taser leads had apparently fallen out of the
taser during the foot chase.
3
Presley explained at trial that the taser can operate through contact or by
firing leads through the air.
3
hip, forearm, and back. Green was unarmed and holding only a cell phone when
Presley shot him.
Based on Presley’s shooting of Green, a grand jury returned a true bill of
indictment charging Presley with voluntary manslaughter, involuntary manslaughter
based on reckless conduct, and violation of oath by a public officer. The indictment
read as follows:
Zechariah Presley [was accused of] . . . voluntary manslaughter]
for that [he] . . . cause[d] the death of [Green] . . . while acting solely as
the result of a sudden, violent, and irresistible passion, resulting from
serious provocation sufficient to excite such passion in a reasonable
person, in that Zechariah Presley did physically struggle with [Green] in
an attempt to arrest and detain [Green] seconds prior to firing a .40
caliber pistol at [Green]. . . .
Zechariah Presley [is accused of] . . . involuntary manslaughter for
that [he] . . . , while in the commission of reckless conduct, . . . cause[d]
the death of [Green] . . . without any intention to do so, to wit: [Presley]
did unlawfully cause bodily harm to and endanger the safety of [Green]
by consciously disregarding a substantial and unjustifiable risk that his
act of firing a .40 caliber pistol in the direction of [Green] would cause
harm to and endanger the safety of [Green] and the disregard constituted
a gross deviation from the standard of care which a reasonable person
would exercise in the situation, and said act did result in the death of
[Green]. . . .
4
Zechariah Presley [is accused of] . . . violation of oath by public
officer for that [Presley] . . . , being a public officer with the City of
Kingsland Police Department[,] . . . did willfully and intentionally
violate the terms of his oath as prescribed by law, in that he did swear
to discharge the duties of a sworn law enforcement officer . . . to the best
of his skill and ability, and obey the laws and constitution of the State
of Georgia and the United States and then did unlawfully and without
legal justification, did discharge his firearm in the direction of [Green].
Following a jury trial, Presley was acquitted of the two manslaughter counts
and convicted of the violation of oath count. Presley filed motions for judgment
notwithstanding the verdict, to set aside the guilty verdict, and in arrest of the
judgment. Following a hearing, the trial court denied the motions, and Presley now
appeals that order.
1. Presley contends that the trial court erred by denying his motion in arrest of
judgment in light of the fact that the jury acquitted him of the manslaughter counts
but convicted him of violating his oath as a public officer. Specifically, Presley
argues that the conviction was inconsistent and augmented the narrowly drawn
indictment in a way not supported by the evidence. Simply put, Presley argues that
the third count was necessarily premised on the manslaughter counts, so he could not
5
be convicted of that count after being acquitted of those counts. We discern no basis
for reversal on this ground.
Presley relies on Watson v. State,4 which involved an officer accused of
violating his oath of office based on an alleged solicitation of sodomy after giving a
17-year-old bystander a ride home.5 Watson was convicted of both counts and
appealed, challenging the constitutionality of the sodomy statute and the sufficiency
of the evidence.6 The Supreme Court of Georgia reaffirmed that the sodomy statute
was constitutional only insofar as it addressed sodomy that was “to be performed (a)
in public; (b) in exchange for money or anything of commercial value; (c) by force;
or (d) by or with an individual who is incapable of giving legal consent to sexual
activity.”7 The evidence in that case revealed that none of these conditions existed,
so the evidence was not sufficient to support a conviction for solicitation of sodomy.
And, pertinent to the case before us, the Court held that Watson’s violation of oath
conviction was unsupported because that count of the indictment was expressly
4
293 Ga. 817 (750 SE2d 143) (2013).
5
See id. at 818.
6
See id.7
Id. at 820 (1).
6
conditioned on soliciting sodomy: “said accused . . . did . . . willfully and
intentionally violate the terms of his sworn oath to comply with the laws of the State
of Georgia by soliciting sodomy in violation of 16-6-15 (a). . . .”8 In light of this, the
Court explained that if “the defendant is charged by a narrowly drawn indictment
with a specific crime[,] it is not within the power of the judge or the jury to interpret
the facts as presented at trial to support an alternative, separate offense.”9 In other
words, the evidence showed that Watson did not commit the solicitation of sodomy
offense (as that offense was construed by the Court), so he could not have violated
his oath by soliciting sodomy as alleged in the indictment.
Based on Watson, Presley argues that the jury acquitted him of both
manslaughter counts presumably because the jury found that he was justified in
shooting Green. Therefore, according to Presley, the guilty verdict as to his violation
of oath count is inconsistent with the acquittal on the manslaughter counts.
“As a general rule, inconsistent verdicts occur when a jury in a criminal case
renders seemingly incompatible verdicts of guilty on one charge and not guilty on
8
Id. at 822 (3).
9
Id. at 823 (3), quoting State v. Hightower, 252 Ga. 220, 223 (312 SE2d 610)
(1984).
7
another. In Georgia, [however], we have abolished the rule that inconsistent verdicts
require reversal.”10 This is because if
truly inconsistent verdicts have been reached, the most that can be said
is that the verdict shows 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. . . . [I]nconsistent
verdicts — even verdicts that acquit on a predicate offense while
convicting on the compound offense — should not necessarily be
interpreted as a windfall to the [State] at the defendant’s expense. It is
equally possible that the jury, convinced of guilt, properly reached its
conclusion on the compound offense, and then through mistake,
compromise, or lenity, arrived at an inconsistent conclusion on the
[predicate] offense.11
In this context, Georgia’s appellate courts
have determined it is not generally within the 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. . . .
10
McElrath v. State, 308 Ga. 104, 108 (2) (a) (839 SE2d 573) (2020).
11
(Citation and punctuation omitted; emphasis supplied.) Id., quoting United
States v. Powell, 469 U. S. 57, 64-65 (105 SCt 471, 83 LE2d 461) (1984).
8
[A]ppellate courts cannot know and should not speculate why a jury
acquitted on one offense and convicted on another offense.12
Because of this, “the issue is not whether an acquittal on one charge would logically
necessitate acquittal on another charge on which the jury convicted the defendant;
rather the sole question is whether the evidence viewed in favor of the conviction was
sufficient to support the guilty verdict.”13
Here, there was evidence that Presley shot Green after Green had disengaged
Presley and had begun retreating back to the area where the vehicles were parked.
This evidence authorized a guilty finding even in the face of Presley’s asserted
justification defense,14 so it is entirely possible that the jury found that the shooting
was unlawful but out of lenity or compromise due to Presley’s status as a police
officer, the jury as a whole agreed to acquit him of the more serious manslaughter
offenses. On the other hand, it is also possible that the jury simply erred. But
12
(Punctuation omitted.) McElrath, 308 Ga. at 109 (2) (a), quoting King v.
Waters, 278 Ga. 122 (1) (598 SE2d 476) (2004), and citing Dumas v. State, 266 Ga.
797 (2) (471 SE2d 508) (1996).
13
(Punctuation omitted; emphasis supplied.) Houseworth v. State, 348 Ga. App.
119, 124 (1) (c) (820 SE2d 231) (2018).
14
See id.9
engaging in this type of speculation is exactly the type of epistemological futility that
our precedent forbids. As our Supreme Court has said, “it is imprudent and
unworkable to allow criminal defendants to challenge inconsistent verdicts on the
ground that in their case the verdict was not the product of lenity, but of some error
that worked against them.”15 Accordingly, in light of the evidence supporting the
guilty verdict as to the violation of oath count, the fact that the jury in this case
acquitted Presley on the predicate manslaughter offenses does not require reversal of
his violation of oath offense.
2. Presley contends that the allegedly inconsistent verdict nevertheless requires
reversal in this case pursuant to Turner v. State.16 In that case, the Supreme Court of
Georgia described an exception to the above analysis:
[W]hen instead of being left to speculate about the unknown motivations
of the jury the appellate record makes transparent the jury’s reasoning
15
Turner, 283 Ga. at 20 (2), quoting Powell, 469 U. S. at 66. See also Allen v.
State, 351 Ga. App. 680, 683 (832 SE2d 659) (2019) (“[A] jury has an ‘unreviewable
power’ to render verdicts, including inconsistent verdicts, for ‘impermissible
reasons.’ Those reasons may include a mistake, compromise, or lenity.”), quoting
Thornton v. State, 298 Ga. 709, 713 (2) (784 SE2d 417) (2016).
16
283 Ga. at 20-21 (2).
10
why it found the defendant not guilty of one of the charges, there is no
speculation, and the policy [described above] . . . does not apply.17
In Turner, the defendant was accused of a shooting and charged with malice
murder, felony murder (aggravated assault), and aggravated assault.18 The defendant
admitted shooting the victim but asserted a justification defense.19 The jury found the
defendant not guilty on the malice murder charge, “expressly finding pursuant to the
jury verdict form supplied to it that [Turner] had been justified in his action.”20 The
jury also found the defendant guilty of the felony murder charge and the underlying
aggravated assault charge, making an express finding that the shooting was not
justified.21 Turner appealed, and in light of the inherent contradiction in the jury’s
explicit findings as to justification, the Supreme Court of Georgia held that “there is
no speculation” as to the basis for the jury’s inconsistent verdicts, so “the rules
17
(Punctuation omitted.) Id.
18
See id. at 17.
19
See id.
20
Id.
21
See Turner, 283 Ga. at 17.
11
regarding inconsistent verdicts are not applicable to the case at bar.”22 Therefore, the
Court held that it was error for the trial court to enter judgment on the guilty verdicts
as to felony murder and aggravated assault.
Presley contends that the same result is required here. But Presley’s case is
different from Turner because the verdict form in this case provides no insight into
the jury’s finding with respect to justification. As noted above, Turner makes it clear
that its reasoning only applies if “the appellate record makes transparent the jury’s
reasoning why it found the defendant not guilty of one of the charges,” and in Turner,
the verdict form contained express findings as to justification.23 “But there is no such
verdict form in this case, and this [C]ourt will not engage in speculation or
unauthorized inquiry regarding the jury’s deliberations.”24 Accordingly, despite
Presley’s argument otherwise, the record does not require reversal based on an
allegedly inconsistent verdict.
Judgment affirmed. McFadden, C. J., and Hodges, J., concur.
22
(Punctuation omitted.) Id. at 21 (2).
23
Id. at 21 (2).
24
Jones v. State, 318 Ga. App. 105, 106 (1) (733 SE2d 407) (2012), quoting
Guajardo v. State, 290 Ga. 172, 175 (2) (718 SE2d 292) (2011).
12