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Whiting v. State

Supreme Court of Georgia

January 20, 2015

WHITING
v.
THE STATE

Murder. Cobb Superior Court. Before Judge Kreeger, Senior Judge.

John S. Anderson, for appellant.

D. Victor Reynolds, District Attorney, Grady A. Moore, Amelia G. Pray, Assistant District Attorneys, Samuel S. Olens, Attorney General, Patricia B. Attaway Burton, Deputy Attorney General, Paula K. Smith, Senior Assistant Attorney General, Vicki S. Bass, Assistant Attorney General, for appellee.

OPINION

Page 449

Melton, Justice.

Following a jury trial, Preston Whiting was found guilty of felony murder, aggravated assault, and various other offenses in connection with the shooting death of Quentin Denley and the shooting of Faron Daniels.[1] On appeal Whiting contends that the trial court erred by failing to instruct the jury on proximate

Page 450

causation and that his trial counsel was ineffective. We affirm.

1. Viewed in the light most favorable to the jury's verdict, the evidence reveals that, on the morning of June 12, 2008, Ted Day drove Whiting, Lincoln Boykins, and Donald Hatton fro College Park to a Cobb County subdivision where Whiting wished to purchase marijuana. Whiting and Boykins rang the doorbell at a home in the subdivision, and Denley greeted the men at the door. Whiting asked [296 Ga. 430] Denley for a lighter, which Denley retrieved for him, along with a bag of marijuana. Boykins then pulled out a .380 semiautomatic handgun and shot Denley. Whiting and Boykins ran back to Day's car, and they drove back to College Park. A neighbor who had heard the gunshot called 911. Denley was rushed to the hospital, where he died from his gunshot wound.

Later that same evening, Whiting returned to Cobb County with Boykins, Hatton, and four other individuals, and this time Whiting was driving Day's car. After Whiting dropped off two women who were with the group and picked up two others, Hatton started saying that he wanted to shoot someone. Hatton pulled out Boykins' handgun, and Whiting pulled over the car. Hatton then jumped out of the car, approached the first person he saw, Daniels, and shot Daniels three times. Daniels was hit in the leg, hip, and buttocks, but he survived. Hatton got back in the car, and Whiting drove away.

Soon after the Daniels shooting, Whiting stopped the car and began arguing with Hatton. In the meantime, police officers who were responding to a call about the Daniels shooting saw Day's car and realized that it matched the description of the car that had fled the scene of the Daniels shooting. The officers turned on their blue lights and siren, and Whiting sped off. After a high-speed chase, Whiting lost control of the vehicle and ran off the road and down an embankment. The car came to a rest near a fence, and then Whiting attempted to flee on foot. However, he was chased down and apprehended by police officers.

This evidence was sufficient to enable a rational trier of fact to find Whiting guilty of all of the crimes of which he was convicted beyond a reasonable doubt. Jackson v. Virginia, 443 U.S. 307 (99 S.Ct. 2781, 61 L.Ed.2d 560) (1979); see also OCGA § 16-2-20 (parties to a crime).

2. Whiting contends that the trial court erred by failing to instruct the jury sua sponte on the issue of proximate causation in connection with its charge on felony murder. Because Whiting did not object to the trial court's charge on felony murder, our review of this contention is limited to plain error. See OCGA § 17-8-58 (absent specific objection to the jury charge or the failure to give a charge appellate review limited to plain error).

Regardless of our level of review, however, Whiting cannot show any reversible error in the trial court's charge here, plain or otherwise. The record reveals that the indictment charged Whiting with felony murder based on having caused the death of Denley by shooting him while in the commission of a criminal conspiracy to distribute marijuana. The trial court read the indictment to the jury [296 Ga. 431] and fully and properly instructed them on felony murder,[2] conspiracy to violate the Georgia Controlled Substances Act,[3] and parties to a crime,[4] which was " sufficient to

Page 451

inform the jury that, in order to convict [Whiting] of the felony murder of [Denley], it had to determine that he caused or was a party with [Boykins] in causing the victim's death during the [conspiracy to distribute marijuana]." Pennie v. State, 292 Ga. 249, 252 (2) (736 S.E.2d 433) (2013). Indeed, the charge given adequately informed the jury that Whiting could only be found guilty of felony murder if the conspiracy to conduct " the marijuana transaction was the proximate cause of [Denley's] death." Davis v. State, 290 Ga. 757, 760 (4) (725 S.E.2d 280) (2012) (sufficient cause existed to find defendant guilty of felony murder where he voluntarily participated in drug deal in which the drug dealer was shot and killed by the defendant's brother). The trial court was not required to give a separate charge on proximate causation in order to make this point. See Pennie, supra.

3. Whiting's claim that his trial counsel was ineffective for having failed to adequately argue the issue of proximate causation to the jury is belied by the record, as his trial counsel did in fact specifically argue to the jury that

there's still the word " cause" in there, okay, in felony murder. The D.A. might like to skip over that, but no, the word " cause" is still in felony murder. You can't find someone guilty of felony murder if they did not " cause" the death. [296 Ga. 432] Causation. Very important little word there. Now, the District Attorney is not going to prove to you that [Whiting] caused anybody's death.

Additionally, in light of our holding in Division 2 that an additional charge on proximate causation was unnecessary in light of the charge given, Whiting cannot show that his trial counsel was ineffective for having failed to request such a charge. Indeed, " [c]onsidering the jury charges that were given and the relevant evidence, there is no reasonable probability that a separate proximate cause charge would have produced a different verdict." Pennie, supra, 292 Ga. at 252 (2). See also Faulks v. State, 296 Ga. 38, 39 (3) (764 S.E.2d 846) (2014).

Judgment affirmed. All the Justices concur.


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