[Copyrighted Material Omitted]
Murder. Walker Superior Court. Before Judge Wood.
Judgment of conviction affirmed in part and vacated in part, death sentences affirmed, and case remanded for resentencing.
Jennifer E. Hildebrand, Robert L. Stultz, for appellant.
Herbert E. Franklin, District Attorney, Christopher A. Arnt, Assistant District Attorney, Samuel S. Olens, Attorney General, Patricia B. Attaway Burton, Deputy Attorney General, Sabrina D. Graham, Dana E. Weinberger, Assistant Attorneys General, for appellee.
HUNSTEIN, Justice. All the Justices concur.
A jury convicted Donnie Allen Hulett of two counts of malice murder and numerous related crimes, and Hulett waived his right to a jury trial as to sentencing for the murders. At the conclusion of a bench trial on sentencing, the trial court found the existence of multiple statutory aggravating circumstances and sentenced Hulett to death for each of the murders. See OCGA § § 17-10-30 (b), 17-10-31 (a). Hulett's motion for new trial was denied, and he appeals his convictions and sentences. For the reasons
set forth below, we affirm in part and vacate in part.
Sufficiency of the Evidence
1. The evidence presented at trial showed the following. On July 22, 2002, between 8:30 and 9:30 a.m., the assistant director of the Mountain Top Boys Home in LaFayette saw brothers Larry and Arvine Phelps drive onto the home's property in Larry Phelps' red Ford F-150 pickup truck. Both brothers were retired educators, and they had volunteered to cut trees and clear an area for a new building for the home. At approximately 10:30 a.m., the assistant director and boys from the home were headed to the post office in the home's van when they noticed a white Chevrolet Cavalier that was parked on the side of the road a few hundred yards past the home's driveway. They saw a white male near the automobile. Two boys in the van had also separately seen the Cavalier in the same spot the evening before, and [296 Ga. 50] one of the boys had noticed steam coming from the Cavalier and a white male standing at the automobile's open hood, indicating that the Cavalier had broken down.
When returning from the post office approximately a half hour later, the home's van met Larry Phelps' truck exiting the driveway, and the assistant director and several of the boys noticed that the truck's driver was not either of the Phelps brothers. Later in the day, one of the home's employees and a boy residing at the home visited the construction site, where they discovered the Phelps brothers' bodies. Law enforcement personnel called to the scene investigated the Cavalier parked nearby. The officers learned that it had been reported stolen the previous evening when its owners returned from out of town and discovered that the vehicle and their daughter's new acquaintance, Donnie " D. J." Hulett, had disappeared from their home in the late night hours of July 20 or the early morning hours of July 21. The couple reported that several other items, including a Smith and Wesson 30.06 rifle, a shotgun, and ammunition, were also missing. Later analysis by a technician at the Georgia Bureau of Investigation (" GBI" ) Crime Lab showed that two fingerprints lifted from the hood of the Cavalier matched Hulett's fingerprints.
The evidence at the murder scene indicated that the Phelps brothers were approximately 20 yards apart and were cutting trees when Hulett, standing 65 to 70 yards away on a hill above them, fired at Arvine Phelps multiple times with a high-powered rifle. Apparently not realizing the source of his brother's injury, Larry Phelps put down his chainsaw where he was working and ran to his brother's aid. Blood on the knees of his jeans indicated that he kneeled beside his brother to assist him, using his own shirt as a makeshift bandage to control Arvine's bleeding. Meanwhile, Hulett proceeded down the hillside toward the brothers. At some point, Larry Phelps saw Hulett and ran toward his truck for safety, but Hulett shot him from above. Hulett then approached the victims, beat both of them about the head, and took their wallets before leaving in Larry Phelps' truck. According to the medical examiner, Arvine Phelps was shot with a high-powered rifle in his left upper back, left arm, and left thigh. The medical examiner opined that,
after Arvine Phelps was shot but while still alive, he suffered severe blunt force trauma to the front of his head while lying on a flat surface, causing " two complete fractures through the brain and the dura" and fractures to the back of the head on the occipital bone. She testified that the attack left Arvine Phelps' brain exposed and " pulpified, meaning it was just smashed, [and] no longer held the contours [of] what a brain should look like." The medical examiner testified that the single projectile that struck Larry [296 Ga. 51] Phelps entered the right side of his neck above the collar bone, fractured his ribs, traversed his lung, fractured his spinal cord, and exited his back. She also opined that Larry Phelps received a blunt force injury to the left side of his head after having been shot but prior to his death, and she explained that the blunt force injuries suffered by both of the victims were consistent with the victims' having been struck by a rifle butt or a sledge hammer.
Later during the day of the murders, several of Hulett's acquaintances saw him at various locations in middle Georgia driving a truck bearing the license plate issued for Larry Phelps' truck and matching its description and in possession of a Smith and Wesson 30.06 rifle and a large amount of cash. The GBI subsequently learned from one of Hulett's acquaintances that he had fled to Arizona. On August 2, 2002, authorities apprehended Hulett in a grocery store parking lot near Phoenix. At the time of his apprehension, Hulett was sitting in Larry Phelps' truck, which displayed a stolen Georgia license plate. After Hulett's arrest, detectives discovered a handwritten note in a mileage log located in the glove compartment of Larry Phelps' truck. The note began, " I, Donnie Hulett did do the murders at Mountain Top Boys Home," and it was signed, " Donnie Hulett, aka, D. J." A GBI handwriting examiner concluded that the note was written by Hulett. The handwriting on the note was also authenticated at trial as being that of Hulett by Hulett's maternal grandparents and half-sister. Several witnesses from the Mountain Top Boys Home identified Hulett from a photographic lineup as being the person that they saw near the Cavalier and driving Larry Phelps' truck. The Smith and Wesson 30.06 rifle was never located, but a GBI firearms examiner testified that a spent shell casing found at the murder scene was fired from the same rifle as seven spent shell casings received from the rifle's owner, who testified that the spent shell casings had been fired from the Smith and Wesson 30.06 rifle before it was stolen. The State also introduced Hulett's prior felony conviction.
After reviewing the evidence in the light most favorable to the jury's verdicts, we conclude that it was sufficient to authorize a rational trier of fact to find Hulett guilty of the crimes charged beyond a reasonable doubt. See Jackson v. Virginia, 443 U.S. 307, 318-319 (III) (B) (99 S.Ct. 2781, 61 L.Ed.2d 560) (1979); Unified Appeal Procedure Rule IV (B) (2) (providing that, in all death penalty cases, this Court will determine whether the verdicts are supported by the evidence).
2. While the evidence was sufficient to support the jury's guilty verdicts, we have noted an error with respect to the merger of certain counts for judgment and sentencing. The jury returned guilty verdicts [296 Ga. 52] on all 17 counts of the indictment. The counts relevant to our discussion here are as follows:
Count 1: Malice murder of Arvine Phelps.
Count 2: Malice murder of Larry Phelps.
Count 3: Felony murder of Arvine Phelps (aggravated assault as the underlying felony).
Count 4: Felony murder of Larry Phelps (aggravated assault as the underlying felony).
Count 5: Aggravated assault (assault with a deadly weapon) of Arvine Phelps.
Count 6: Aggravated assault (assault with a deadly weapon) of Larry Phelps.
Count 7: Felony murder of Arvine Phelps (possession of a firearm by a convicted felon as the underlying felony).
Count 8: Felony murder of Larry Phelps (possession of a firearm by a convicted felon as the underlying felony).
Count 9: Possession of a firearm by a convicted felon.
Count 10: Felony Murder of Arvine Phelps (armed robbery as the underlying felony).
Count 11: Felony Murder of Larry Phelps (armed robbery as the underlying felony).
Count 12: Armed robbery of Arvine Phelps.
Count 13: Armed robbery of Larry Phelps.
For sentencing purposes, the trial court " merged" Counts 1, 3, 5, 7, 9, 10, and 12 and separately " merged" Counts 2, 4, 6, 8, 9, 11, and 13. According to the trial transcript, the trial court, at the State's urging, determined that the felony murder counts, along with his convictions for the underlying felonies, " merged" with his malice murder counts as to each respective victim. However, the trial court was incorrect.
First, the trial court erred with respect to the relationship between the malice murder and felony murder counts regarding each of the victims. As this Court has explained, the State may seek guilty [296 Ga. 53] verdicts on alternative theories of malice murder and felony murder, and, " [w]hen the elements of malice and an underlying felony both exist in a murder case, the law does not preclude verdicts of guilty of both malice and felony murder." Smith v. State, 258 Ga. 181, 183 (2) (366 S.E.2d 763) (1988). See Lumpkins v. State, 264 Ga. 255, 256 (3) (443 S.E.2d 619) (1994) (explaining that the State may indict on alternative counts " for a single crime which may have been committed in more than one way" ). However, when a valid guilty verdict is returned on both malice murder and felony murder of the same victim, the defendant should be sentenced for the malice murder, and the alternative felony murder count stands vacated by operation of law as " 'simply surplusage.' " (Citation omitted.) Malcolm v. State, 263 Ga. 369, 372 (4) (434 S.E.2d 479) (1993). See Mills v. State, 287 Ga. 828, 828, n. 1 (700 S.E.2d 544) (2010) (noting that " the felony murder conviction was properly vacated by operation of law rather than 'merged' into the malice murder conviction " (emphasis supplied) (citing Malcolm, 263 Ga. at 372).
Because the trial court failed to recognize that the felony murder counts were vacated as surplusage rather than " merged" into the malice murder counts, it also failed to recognize that " there [were] no felony murder count[s] into which the underlying felon[ies] c[ould] merge." Malcolm, 263 Ga. at 373. As a result, the trial court improperly determined that certain of the non-murder counts " merged" as a matter of law into the felony murder counts when, instead, the trial court should have " treat[ed] the felony murder count[s] as merely surplusage and then ... proceed[ed] to determine whether the underlying felon[ies] did or did not merge, as a matter of fact, into the malice murder count[s]." (Emphasis supplied.) Id.
As demonstrated by the discussion below, as a result of the trial court's error, " [Hulett] has yet to be sentenced for [three] of the crimes" of which he was validly convicted. State v. Smith, 193 Ga.App. 831, 832 (1) (389 S.E.2d 547) (1989) (vacating the trial court's erroneous judgment merging eight of twelve armed robbery counts into four counts and remanding for resentencing on the eight remaining counts). Therefore, that portion of the trial court's judgment is illegal and void. See Williams v. State, 271 Ga. 686, 688 (1), n. 7 (523 S.E.2d 857) (1999) (noting that an illegal sentence may benefit a criminal defendant but that a judgment imposing a sentence that the law does not allow is still void and that the trial court may resentence the defendant at any time, citing Hartman v. State, 266 Ga. 613 (5) (469 S.E.2d 163) (1996) (holding that the trial court's judgment imposing a concurrent rather than a consecutive sentence as required by the governing statute was void and could be amended to conform to the law at any time)). The State, had it chosen to do so, could have [296 Ga. 54] " appeal[ed] directly the failure of the trial court to legally impose sentences for those [three] crimes."  Smith, 193 Ga.App. at 832.
See OCGA § 5-7-1 (a) (6) (authorizing the State to appeal " [f]rom an order, decision, or judgment of a court where the court does not have jurisdiction or the order is otherwise void under the Constitution or laws of this state" ); State v. Sumlin, 281 Ga. 183, 184 (2) (637 S.E.2d 36) (2006) (holding that the State is entitled to directly appeal a " legally void" order); State v. Jones, 265 Ga.App. 493, 493 (1), 494 (2) (594 S.E.2d 706) (2004) (noting that " [t]he law is clear that the state is authorized to appeal a void sentence," holding that the probated portion of the defendant's sentence was contrary to the applicable statute and thus was void, and remanding for resentencing); State v. Dixon, 194 Ga.App. 146, 146 (1) (390 S.E.2d 600) (1990) (vacating the trial court's judgment erroneously merging the defendant's armed robbery counts and remanding for resentencing on each of the counts). However, neither party has appealed these sentencing errors.
Where neither party properly raises and argues a merger issue, this Court has no duty " to scour the record searching for merger issues." Nazario v. State, 293 Ga. 480, 488 (2) (d) (746 S.E.2d 109) (2013). However, if we notice a merger issue in a direct appeal, as we have here, we regularly resolve that issue, " even where [it] was not raised in the trial court and is not enumerated as error on appeal." Id. at 486 (2) (b) (explaining that a judgment of sentence is void where it imposes an illegal sentence, i.e., a sentence that the law does not allow, and that the illegality of such a judgment is not a waivable issue). The merger issues that this Court decides sua sponte typically result in vacated convictions and sentences and thus are favorable to the defendant. See id. (listing cases). Nevertheless, we agree with the Court of Appeals that " an accused who has been convicted of a crime has neither a vested right to nor a reasonable expectation of finality as to a pronounced sentence which is null and void." Bryant v. State, 229 Ga.App. 534, 535 (1) (494 S.E.2d 353) (1997). See OCGA § 17-9-4 (" The judgment of a court having no jurisdiction of the person or subject matter, or void for any other cause, is a mere nullity and may be so held in any court when it becomes material to the interest of the parties to consider it." ).
[296 Ga. 55] Accordingly, having noticed the trial court's error, we vacate that portion of the trial court's sentencing order in which it " merged" Counts 1, 3, 5, 7, 9, 10, and 12 with one another and " merged" Counts 2, 4, 6, 8, 9, 11, and 13 with one another. As discussed in Division 1, there was sufficient evidence to convict Hulett of the malice murders of Arvine Phelps and Larry Phelps. Therefore, the trial court properly sentenced him on Counts 1 and 2, and Counts 3, 4, 7, 8, 10, and 11, which are the felony murder counts, are vacated by operation of law. See Malcolm, 263 Ga. at 371-372. We now proceed to determine whether Counts 5, 6, 9, 12, and 13 merge as a matter of fact into the valid malice murder convictions.
(a) We begin with Counts 5 and 6, which charged Hulett with committing aggravated assault " with a deadly weapon, a rifle, by pointing said firearm at said victim. ..." There was no evidence presented that authorized the jury to find that Hulett's aggravated assault of either victim by pointing the gun at them was not " followed almost immediately" by the fatal shooting of the victims or that there existed " a deliberate interval" between the two events. Solomon v. State, 293 Ga. 605, 606 (1) (748 S.E.2d 865) (2013). Therefore, the aggravated assaults merge as a matter of fact into the malice murder. See id.
(b) Count 9 charged Hulett with the offense of possession of a firearm by a convicted felon. " [P]ossession of a firearm by a convicted felon does not merge into a conviction
for malice murder." Chester v. State, 284 Ga. 162, 162 (1) (664 S.E.2d 220) (2008), overruled on other grounds by Williams v. State, 287 Ga. 192, 194 (695 S.E.2d 244) (2010), and Harper v. State, 286 Ga. 216, 218 (1) (686 S.E.2d 786) (2009). Therefore, as no ...