Turner v. State

Appellant Larry Shane Turner was tried on an indictment charging him with the malice murder, felony murder (with aggravated assault being the underlying felony), and aggravated assault of Shawn Moss Kelley.1 Appellant admitted having fired the shot that killed the victim, but maintained he acted in self-defense. The jury returned a verdict of not guilty on the malice murder charge, expressly finding pursuant to the jury verdict form supplied to it that appellant had been justified in his action. The jury went on to find appellant guilty of felony murder and aggravated assault after expressly finding pursuant to the jury verdict form that appellant’s act of shooting the victim was neither justified nor mitigated.2

*18The State presented evidence the victim, the former boyfriend of appellant’s sister and a life-long friend of appellant, died as the result of a shotgun wound to his left upper arm that traversed his chest, cutting the ascending aorta and causing massive internal bleeding. Appellant and his father arrived at the scene shortly after police arrived and appellant was arrested after informing the officers he had shot the victim. A GBI agent testified he interviewed appellant who told him the victim had telephoned the home of appellant’s sister on December 21 while appellant was visiting and had threatened to kill her. Appellant took the telephone, told the victim to stop calling his sister, and threatened to kill the victim should he do physical harm to appellant’s sister. The victim called the home of appellant’s sister the following day and told a male visitor he was going to beat up the visitor. Appellant refused to take the male visitor to the site specified by the victim for a confrontation; instead, believing the victim would be armed, appellant got his shotgun from his home and went to the site where he sat in his car and awaited the victim’s arrival. The victim arrived and approached appellant who fired his shotgun when he saw the victim, standing 10-12 feet away and slightly turned away from appellant with his hands in his front pockets, move his right arm.

Appellant testified he fired the fatal shot in self-defense because the victim had earlier threatened to kill him and he believed the victim was reaching for a gun with which to shoot him. The police discovered the victim’s body with his hands in his front pants pockets, and no firearm was on or near the victim’s body. However, a solid metal cylinder was in a front pants pocket and a padlock was on the *19middle finger of his right hand in his front pants pocket. Appellant’s father testified the victim had a weapon with him about 85 percent of the time and carried a rifle “continuously.” He described the precautions he and appellant had taken on behalf of themselves and appellant’s sister because they feared she was in danger at the victim’s hands after the victim and appellant’s sister parted ways. Several weeks before the shooting, appellant’s father had insisted the victim leave the property on which were situated the homes of appellant, his sister, and his father. Telephone records introduced at trial showed 69 calls had been made two days before the shooting to the home of appellant’s sister from a phone at the house where the victim lived; 71 phone calls had been placed the day before the shooting, and 14 calls had been made the day of the shooting.

1. Appellant maintains the trial court gave an improper sequential charge to the jury. A sequential charge is improper when it eliminates the jury’s full consideration of voluntary manslaughter and its concomitant mitigating factor of provoked passion prior to the jury’s consideration of felony murder. See McNeal v. State, 263 Ga. 397 (2) (435 SE2d 47) (1993). It is improper to direct a jury to consider voluntary manslaughter only after finding the defendant not guilty of felony murder. Jackson v. State, 267 Ga. 130 (12) (475 SE2d 637) (1996). There is no improper sequential charge when the jury is informed it cannot find a defendant guilty of felony murder unless it has determined there are no mitigating factors that would reduce malice murder to voluntary manslaughter. Sellers v. State, 277 Ga. 172 (3) (587 SE2d 35) (2003). The trial court instructed the jury it first had to determine whether the defendant’s conduct was justified. If it concluded the conduct was justified, the jury was to acquit appellant on each charge. If, on the other hand, the jury determined the conduct was not justified, before it would be authorized to return a guilty verdict on the malice murder or felony murder charges, the jury had to determine whether any mitigating evidence would cause the malice murder or felony murder charges to be reduced to voluntary manslaughter. If the jury determined the defendant’s action was neither justified nor mitigated, then the jury would be authorized to find the defendant guilty of malice murder or felony murder. Inasmuch as the jury was informed it could not find appellant guilty of felony murder or malice murder unless it had determined there were no mitigating factors that would reduce malice murder to voluntary manslaughter, there was no improper sequential charge. Id.

2. Appellant maintains the trial court erroneously accepted mutually exclusive verdicts • — • the determination he was not guilty of malice murder because his action was justified, and the determination he was guilty of felony murder because his action was not justified. However,

*20“[v]erdicts are mutually exclusive ‘where a guilty verdict on one count logically excludes a finding of guilt on the other.’ ” [Cits.] Thus, the rule against mutually exclusive verdicts applies to multiple guilty verdicts which cannot be logically reconciled; the rule is not implicated where, as here, verdicts of guilty and not guilty are returned. [Cit.]

Shepherd v. State, 280 Ga. 245 (1) (626 SE2d 96) (2006).

While appellant’s assertion of error speaks in terms of mutually exclusive verdicts, the basis of his argument is that the verdicts are inconsistent. In Milam v. State, 255 Ga. 560 (2) (341 SE2d 216) (1986), this Court abolished the rule that inconsistent verdicts in irreconcilable conflict in criminal cases warranted reversal (see Hines v. State, 254 Ga. 386, 387 (329 SE2d 479) (1985)), adopting the rationale set out by the U. S. Supreme Court in United States v. Powell, 469 U. S. 57 (105 SC 471, 83 LE2d 461) (1984), in its exercise of supervisory powers over the federal criminal process. Id. at 65. In Powell, the Court noted that inconsistent verdicts could be the result of jury mistake, compromise, or lenity, but it is unknown whether the mistake, compromise, or lenity was exercised in favor of the defendant or the prosecution. Id. In our cases endorsing the abolition of the inconsistent verdict rule, we 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. Dumas v. State, 266 Ga. 797 (2) (471 SE2d 508) (1996). As we observed in King v. Waters, 278 Ga. 122 (1) (598 SE2d 476) (2004), appellate courts “cannot know and should not speculate why a jury acquitted on... [one] offense and convicted on... [another] offense. The reason could be an error by the jury in its consideration or it could be mistake, compromise, or lenity....” Stated another way, 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. Such an individualized assessment of the reason for the inconsistency would be based either on pure speculation, or would require inquiries into the jury’s deliberations that the courts generally will not undertake.

United States v. Powell, supra, 469 U. S. at 66; Smashum v. State, 261 Ga. 248 (2) (403 SE2d 797) (1991).

We have, however, recognized an exception to the abolition of the inconsistent verdict rule: when instead of being left to speculate *21about the unknown motivations of the jury the appellate record makes transparent the jury’s reasoning why it found the defendant not guilty of one of the charges, “[t]here is ... no speculation, and the policy explained in Powell and adopted in Milam, supra,... does not apply.” King v. Waters, supra, 278 Ga. at 123. As was the case in King v. Waters, we are faced with the anomalous situation in which 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 appellant was not guilty of malice murder because the jury found his action in shooting the victim to have been justified. Because the rules regarding inconsistent verdicts are not applicable to the case at bar, we are presented with the question of whether the jury’s finding of justification as to the malice murder charge requires vacation of the judgment entered on the guilty verdicts returned on the charges of felony murder and aggravated assault.

The jury was instructed that “[t]he fact that a person’s conduct is justified is a defense to prosecution for any crime based on that conduct.” OCGA § 16-3-20. The trial court twice instructed the jury it was to consider first whether or not the defendant’s conduct in shooting the victim was justified and, if the jury determined the conduct was justified, the jury should acquit the defendant as to each count. All the crimes for which appellant was tried were based on his conduct of shooting the victim and the jury found that conduct to have been justified. As both OCGA § 16-3-20 and the trial court’s repeated instruction to the jury make clear, the 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. In light of the jury’s express finding of justification, it was error for the trial court to enter judgment on the jury verdicts finding appellant guilty of felony murder and aggravated assault.

Judgment reversed.