June 1, 2015
Murder. Berrien Superior Court. Before Judge McClain.
Judgment affirmed in part and vacated in part.
Elizabeth A. Wood, for appellant.
Richard L. Perryman III, District Attorney, Patrick Warren, Assistant District Attorney; Samuel S. Olens, Attorney General, Patricia B. Attaway Burton, Deputy Attorney General, Paula K. Smith, Senior Assistant Attorney General, Michael A. Oldham, Assistant Attorney General, for appellee.
BLACKWELL, Justice. All the Justices concur.
Appellant Lewis Dyal was tried by a Berrien County jury and convicted of murder, aggravated assault, and the unlawful possession of a firearm during the commission of a felony, all in connection with the fatal shooting of his adult son, Jonathan. Appellant now contends that the trial court erred with respect to several evidentiary matters, when it charged the jury about evidence of prior difficulties between Appellant and his son, when it used a certain verdict form, and when it sentenced him for both murder and aggravated assault. We agree that the aggravated assault should have been merged into the murder, and we therefore vacate the conviction and sentence for aggravated assault. We otherwise see no error, however, and we affirm the judgment of conviction and sentences as to murder and unlawful possession of a firearm.
1. Viewed in the light most favorable to the verdict, the evidence shows that Appellant lived near Alapaha with his wife and Jonathan. Appellant had a strained relationship with Jonathan, and there had been several incidents of violence between them, including an altercation in 2000 that resulted in Appellant having to undergo facial reconstructive surgery.
[297 Ga. 185] On the evening of December 17, 2007, Appellant carried a handgun into the kitchen of the family home, where his wife and son were seated at a table. Appellant's wife had not heard Appellant and her son arguing that evening, and she did not know why Appellant was carrying his handgun. Appellant pointed the gun at both his wife and son, put his hand on his wife's shoulder in a way that made her feel like he wanted her to stay seated, and shot Jonathan in the head.
When Appellant's wife reached out to Jonathan, Appellant said, " [l]eave him alone, you stupid b____, he's dead. ... You want to be the next one?" When police officers arrived at the home soon thereafter, they noted a strong odor of alcohol on Appellant's breath, that his speech was slurred, and that his motor skills were impaired. Appellant told the officers that he killed his son because " he was going to beat my tail." At trial, Appellant presented a justification defense, but it was rejected by the jury.
Appellant does not dispute that the evidence is sufficient to show that he committed each of the crimes of which he was convicted, but he does assert that the trial court erred when it sentenced him for both malice murder and aggravated assault. Georgia law proscribes multiple convictions where " [o]ne crime is included in the other." OCGA § 16-1-7 (a) (1). And a crime is included in another crime when, among other things, " [i]t is established by proof of the same or less than all the facts ... required to establish [the other] crime." OCGA § 16-1-6 (1). Here, the indictment charged Appellant with malice murder for fatally shooting his son in the head, and it charged Appellant with aggravated assault for pointing the gun at his son and pulling the trigger. Appellant was charged with committing a single assault against his son, and it was this assault that resulted in his son's death. As a result, the aggravated assault with a deadly weapon did not require proof of any fact not also required to be proved for the malice murder. Consequently, the aggravated assault should have been merged into the malice murder, and the sentence imposed for aggravated assault must be vacated. See Culpepper v. State, 289 Ga. 736, 738 (2) (a) (715 S.E.2d 155) (2011); compare Willingham v. State, 281 Ga. 577, 579 (642 S.E.2d 43) (2007) (aggravated assault did not merge with murder where the indictment alleged that defendant assaulted victim by placing him in reasonable apprehension of immediately receiving a violent injury because only the aggravated assault count required the State to offer proof of that element). As to the convictions for murder and unlawful possession of a firearm, we conclude that the evidence adduced at trial is legally sufficient to authorize a rational trier of fact to find beyond a reasonable doubt that Appellant was guilty of those crimes. Jackson v. Virginia, 443 U.S. 307, 319 (III) (B) (99 S.Ct. 2781, 61 L.Ed.2d 560) (1979).
[297 Ga. 186] 2. Appellant claims that the trial court erred when it refused to admit evidence of prior bad acts allegedly committed by Jonathan against third parties that caused Appellant to fear his son. The trial court excluded this evidence after finding that Appellant failed to give proper notice under Uniform Superior Court Rule 31.1, which requires that a defendant notify the State ten days before trial of his intention to introduce evidence of specific acts of violence by the victim against third parties. Appellant acknowledges that he failed to provide proper notice, however, and it is well-settled that a trial court has " [broad] discretion in deciding whether to vary the time for filing [under Rule 31.1], and its decision will not be upset absent abuse." Darden v. State, 271 Ga. 449, 450 (2) (519 S.E.2d 921) (1999) (citation omitted). Here, the record shows that the trial court understood that it had the discretion to admit evidence of prior bad acts committed against third parties by Appellant's son, but it declined to do so after finding that Appellant
had no reason for his failure to provide the State with proper notice. Moreover, the untimely notice that Appellant provided to the State did not include specific information about the alleged prior bad acts as required by Uniform Superior Court Rule 31.6 (B), but it instead merely informed the State that Appellant intended to introduce " evidence of [an unspecified] act[ ] of violence by the victim." As a result, the trial court did not err when it excluded this evidence.
[297 Ga. 187] 3. Appellant also contends that the trial court erred when it allowed a GBI agent to testify that, while the agent was investigating the 2000 altercation between Appellant and his son that resulted in Appellant having to undergo facial reconstructive surgery, Appellant's son made a written statement claiming that Appellant came in the house " drunk out of his mind" and pointed a gun at him. Appellant claims that evidence of this written statement should have been excluded under the Confrontation Clause and as hearsay, but he made no objection to the evidence at trial. As a result, this enumeration of error is not preserved for our review. See Walton v. State, 278 Ga. 432, 434 (1) (603 S.E.2d 263) (2004).
4. Appellant claims that the trial court committed plain error when it approved a verdict form that provided for the jury to consider the charge of voluntary manslaughter only if it found that he was not guilty of malice murder or felony murder. We have already found that " [a] sequential charge requiring the jury to consider voluntary manslaughter only if it has considered and found the defendant not guilty of malice murder and felony murder is not appropriate where there is evidence that would authorize a charge on voluntary manslaughter." Edge v. State, 261 Ga. 865, 867 (2) (414 S.E.2d 463) (1992) (emphasis in original). But, as Edge explains, this is so because if the jury determines that the defendant is not guilty of malice murder, but is guilty of felony murder, the sequential charge would prevent the jury from " consider[ing] evidence of provocation or passion which might authorize a verdict for voluntary manslaughter [instead of felony murder]." Id.; see also OCGA § 16-5-2 (a) (voluntary manslaughter occurs when someone causes the death of another " under circumstances which would otherwise be murder" ).
But while the verdict form used in this case had the potential to result in a situation such as that addressed in Edge (requiring a reversal of a felony murder conviction), the jury in this case found Appellant guilty of malice murder, not felony murder. And " [b]y [297 Ga. 188] finding that [A]ppellant had committed the homicide with malice, the jury necessarily found that [he] had committed the homicide without the provocation sufficient
to authorize a verdict of guilty of voluntary manslaughter." McGill v. State, 263 Ga. 81, 83 (3) (428 S.E.2d 341) (1993) (emphasis in original). It was the jury's finding that Appellant killed his son with malice -- not the potentially faulty verdict form -- that eliminated a determination that Appellant was guilty only of voluntary manslaughter. As a result, this enumeration of error has no merit.
5. Finally, Appellant argues that the trial court erred when it instructed the jury that evidence showing that there had been prior difficulties between him and his son had been admitted " for the sole purpose of illustrating, if it does so illustrate, the state of feeling between the defendant and the alleged victim and the bent of mind and course of conduct on the part of the defendant." Appellant says that references to " bent of mind" and " course of conduct" would have been more appropriate in a charge on how a jury could consider similar transaction evidence. But Appellant did not object to this charge at trial, and in any event, we have held that such a charge was not erroneous at the time Appellant was tried and that it was, in fact, consistent with the pattern jury instruction on prior difficulties at the time. See Jones v. State, 289 Ga. 145, 147 (2) (710 S.E.2d 127) (2011). As a result, even if the charge was error, it was not plainly erroneous. See McKibbins v. State, 293 Ga. 843, 854 (7) (750 S.E.2d 314) (2013).
Judgment affirmed in part and vacated in part. All the Justices concur.