Harrison v. State

492 S.E.2d 218, 268 Ga. 574, 97 Fulton County D. Rep. 4029, 1997 Ga. LEXIS 707
CourtSupreme Court of Georgia
DecidedNovember 3, 1997
DocketS97A0651
StatusPublished
Cited by27 cases

This text of 492 S.E.2d 218 (Harrison v. State) is published on Counsel Stack Legal Research, covering Supreme Court of Georgia primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Harrison v. State, 492 S.E.2d 218, 268 Ga. 574, 97 Fulton County D. Rep. 4029, 1997 Ga. LEXIS 707 (Ga. 1997).

Opinions

Benham, Chief Justice.

Doretha Delores Harrison was tried on an indictment charging her with the malice murder of Ashley Lenard Arthur, her boyfriend and housemate, and was convicted of felony murder.1

1. The State presented evidence that appellant and the victim socialized with another couple the evening of June 24, 1995, and were dropped off at appellant’s home between 10:30-11:00 p.m. About four hours later, the victim arrived at the couple’s home and asked the man to accompany him to appellant’s home in order that the victim could remove his personal belongings. While the victim carried his clothing and possessions to the friend’s car, appellant sat crying on the sofa. Just before the victim and the friend drove off, the victim exited the car and reentered appellant’s home, saying he had forgotten something. Fifteen to twenty minutes later, the friend exited the car and approached the house where he heard appellant say, “Ashley, stop. Just leave. Stop hitting me and leave.”2 At that point, the friend entered the home, found appellant and the victim in a back room with the victim standing over appellant and appellant holding her chest. The friend forcibly removed the victim from the room and accompanied him to the porch of the house. Appellant followed the men out of the house and shot the victim with a .25 caliber handgun as he stood facing her 12-20 feet away. The forensic pathologist who performed the autopsy testified that the bullet entered the victim’s mouth, knocked out several teeth, and exited at the base of the backside of his neck. The evidence was sufficient to authorize the jury to conclude that appellant was guilty of felony murder beyond a reasonable doubt. Jackson v. Virginia, 443 U. S. 307 (99 SC 2781, 61 LE2d [575]*575560) (1979).

2. Citing Edge v. State, 261 Ga. 865 (414 SE2d 463) (1992), and Russell v. State, 265 Ga. 203 (455 SE2d 34) (1995), appellant contends that the trial court improperly curtailed the jury’s consideration of voluntary manslaughter.

In Edge, we adopted the “modified merger rule,” which provides that a felony murder conviction is precluded only where it would prevent an otherwise warranted verdict of voluntary manslaughter. Id. at 867. We disapproved the giving of sequential charges which instruct the jury to consider voluntary manslaughter only if they have considered and found the defendant not guilty of malice murder and felony murder because such instructions eliminate the jury’s full consideration of voluntary manslaughter and its concomitant evidence of passion or provocation. Id. See also Miner v. State, 268 Ga. 67 (4) (485 SE2d 456) (1997); Lajara v. State, 263 Ga. 438 (2) (435 SE2d 600) (1993).3 However, where it is shown that the jury considered voluntary manslaughter despite having been given improper sequential charges, the direction of a sequential consideration is not reversible error. Id. at 439-440 (jury entered “not guilty” verdict on voluntary manslaughter charge and requested a recharge on voluntary manslaughter); Stewart v. State, 262 Ga. 894 (4) (426 SE2d 367) (1993) (jury requested additional instruction on the concepts of serious provocation, a reasonable interval for the return of reason, and menace). Likewise, giving sequential charges is not reversible error when the jury returns a guilty verdict on the malice murder charge because such a verdict requires the jury to have determined that the homicide was committed without provocation. McGill v. State, 263 Ga. 81 (3) (428 SE2d 341) (1993).

The Russell issue upon which appellant relies has its genesis in our Edge decision. There, we instructed trial courts to inform juries that they could not find a defendant guilty of felony murder if they found provocation and passion with respect to the act which caused the killing. 261 Ga. at 867, fn. 3. In Russell v. State, supra, 265 Ga. at 204-205, we found reversible error when the jury was not so informed, and “[t]he aggravated assault was perpetrated against the homicide victim, the assault was an integral part of the killing, and the evidence authorized a voluntary manslaughter charge.” Compare Murphy v. State, 267 Ga. 100 (2) (475 SE2d 590) (1996).

[576]*576In the case at bar, the trial court recognized the pitfalls of giving a sequential charge with regard to malice murder, felony murder, and voluntary manslaughter, and informed the jury that they were to consider the two forms of murder and voluntary manslaughter equally. The trial court cautioned the jury that the order in which the court instructed the jury on the three crimes did not imply the order in which the jury was to consider them, and then instructed them on the law of malice murder, the law of felony murder, and the form of the verdict regarding those crimes. That was followed by a definition of voluntary manslaughter, and the form of the verdict with regard to that charge. The trial court then went over the verdict form, which listed malice murder, felony murder, and voluntary manslaughter. After reminding the jury that they were not to give priority to one crime over another in their consideration, the trial court instructed them that they need not complete the verdict form upon finding the defendant guilty of one of the charges. The jury was then told they could find the defendant guilty of malice murder and felony murder and, “if you find her guilty of either malice murder or felony murder, you would not then consider voluntary manslaughter because having found her guilty of murder you would then not need to return a verdict on the offense of voluntary manslaughter.” The jury was not told that a finding of passion and provocation would preclude a guilty verdict on the felony murder charge. After some deliberations, the jury requested additional instruction on the law of felony murder and voluntary manslaughter, and the trial court honored their request by defining felony murder and voluntary manslaughter for them. Thereafter, the jury filled in the verdict form by placing “not guilty” in the space under the malice murder charge, and “guilty” in the felony murder space. The space by the voluntary manslaughter charge was left blank.

The trial court committed reversible error when it failed to instruct the jury that they could not find appellant guilty of felony murder if they found appellant’s assault of the victim was the result of provocation and passion. Russell v. State, supra, 265 Ga. 203 (3). Furthermore, while the trial court made a valiant effort to avoid giving an improper sequential charge, the charge as a whole became confusing when the trial court told the jury that they did not have to consider voluntary manslaughter if they found appellant guilty of malice murder or felony murder. Although the trial court’s statement is true insofar as malice murder is concerned (McGill v. State, supra, 263 Ga. 81), application of that instruction to felony murder results in the very evil Edge sought to cure: consideration of voluntary manslaughter and evidence of provocation and passion is precluded unless the jury has determined that the defendant did not commit [577]*577felony murder.4

3. Appellant maintains that the trial court erroneously required her to testify before it would admit evidence of the victim’s acts of violence against others.

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Bluebook (online)
492 S.E.2d 218, 268 Ga. 574, 97 Fulton County D. Rep. 4029, 1997 Ga. LEXIS 707, Counsel Stack Legal Research, https://law.counselstack.com/opinion/harrison-v-state-ga-1997.