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Eberhart v. State

Supreme Court of Georgia

October 31, 2019


          BOGGS, JUSTICE.

         Appellant Marcus Lecarl Eberhart, a former City of East Point police sergeant, challenges his 2016 conviction for felony murder predicated on aggravated assault in connection with the tasing death of Gregory Lewis Towns, Jr. Appellant contends that the evidence presented at trial was legally insufficient to support his conviction for two reasons. First, he argues that this Court's decision in Ford v. State, 262 Ga. 602 (423 S.E.2d 255) (1992), precludes his felony murder conviction. Second, he argues that proof of intense physical pain is not enough, standing alone, to support a jury finding of serious bodily injury as required for the aggravated assault predicate for his felony murder conviction. As explained below, Ford has no application here, because the predicate for the felony murder conviction is aggravated assault with a deadly weapon. Moreover, the State presented expert medical testimony that the repeated tasing of Towns proximately caused not merely the infliction of intense physical pain, but also death. Accordingly, we affirm Appellant's felony murder conviction.[1]

         1. Appellant challenges the sufficiency of the evidence to support his conviction for felony murder based on aggravated assault with a deadly weapon. Viewed in the light most favorable to the verdicts, the evidence presented at trial showed as follows.

         (a) In January 2001, Appellant joined the East Point Police Department ("EPPD"). He was trained annually on the EPPD's standard operating procedures, rules, and regulations ("SOPs"), which require officers to obey the law, among other things. The use-of-force SOP says: "It is the policy of the East Point Police Department that employees use only that force which is reasonable and necessary to [e]ffect a lawful arrest, detain or control subjects, overcome resistance or to protect themselves or others from injury or death." This SOP specifically prohibits the use of "unnecessary or unreasonable force against any person or property," and supervisors are responsible for ensuring that officers under their command comply with the requirements of the use-of-force SOP.

         The use-of-force SOP lists five levels of suspect cooperation or resistance, which correspond to the five levels of force that an officer is permitted to use in response. Level 1 applies to suspects who are "compliant" and specifies that the appropriate level of force is "cooperative controls, including officer presence, hand signals, verbal commands and instructions or light touching." Level 2 applies to suspects who are "passively resistant" and says that the appropriate level of force is "contact controls, including strong or forceful soft hand control, hand and arm holds etc." Level 3 applies to suspects who are "actively resistant," which the SOP says is the "threshold for a reasonable officer to consider this suspect to be a potential threat to himself, the officer or other citizens." An officer is permitted to respond to a suspect who is actively resistant with "compliance techniques," which may include the use of pepper spray or an electronic control weapon such as a TASER.[2] Other authorized compliance techniques are "forced movement" and "physical force such as forcing the suspect's limbs behind his back, forcing the suspect to the ground or against a wall or other physical force in an attempt to gain control."

         Levels 4 and 5 apply to suspects who are "combative." Level 4 applies to a combative suspect who "represent[s] a threat of bodily harm to the officer or others," and the appropriate level of force is "immediate defensive tactics," which may include the use of "impact weapons (batons), hard hands, or any other reasonable means available and at hand to stop the aggression, defend against the attack and bring the suspect into compliance." Level 5 applies to a combative suspect who "represent[s] a threat of serious bodily harm or death to the officer or others," and the appropriate level of force is "deadly force," which includes the use of firearms and "any other means immediately available that an objectively reasonable officer, in the same circumstance, would consider necessary to prevent death or serious bodily injury."

         In 2005, the EPPD began equipping some of its officers with TASER electronic control weapons, and in 2010, Appellant became TASER-certified. As part of the certification process, Appellant was trained on the EPPD's less-lethal weapons SOP. The less-lethal weapons SOP applies to the three "types of less lethal weapons authorized" by the EPPD: (1) pepper spray; (2) "the expanding metal baton (also referred to as the ASP baton)"; and (3) TASERs. The SOP establishes a reporting procedure to be followed "[w]henever serious bodily injury or death occurs from the use of a less lethal weapon."

         The less-lethal weapons SOP addresses the use of TASERs and says that "[t]he TASER is designed to control violent or actively resisting subjects where alternative restraint tactics have or are reasonably likely to fail and/or it would be unsafe for officers to employ alternative means." The SOP further states that "[t]he TASER may be used as a compliance technique when the suspect is perceived by the officer to be actively resistant and considered a potential threat to himself, the officer or other citizens." The SOP specifies that a TASER "may only be used" in two circumstances: "[t]o overcome violent or assaultive behavior or its threat" or "[t]o control persons in order to prevent them from harming themselves or others." The SOP also specifies several circumstances in which use of a TASER is not authorized, including "[t]o escort or prod subjects" or "[a]gainst subjects who are offering only passive resistance." In addition, the SOP says that use of a TASER is not authorized "[a]gainst handcuffed subjects" unless "exigent circumstances" exist.

         According to the SOP, an officer trained and certified to carry a TASER may deploy the TASER without prior supervisory approval, but a supervisor must be notified as soon after as practicable, and "[w]henever a TASER is applied to a person as a fired probe or drive stun an on-duty supervisor will respond to the location of the incident."[3] Moreover, a "Use of Force Report will be completed anytime" the TASER is used except in training or mandatory testing prior to each shift.

         (b) Although Appellant was assigned to the EPPD's Traffic Division, on Friday, April 11, 2014, he was filling in as a supervisor for the Uniform Patrol Division on the day shift, which ran from 8:00 a.m. to 4:00 p.m. At 3:15 p.m., Towns' girlfriend called 911 to report that Towns had assaulted her, and two minutes later, dispatch put out a call over police radio for officers to respond to a report of domestic violence at the townhouse complex where Towns' girlfriend lived.

         At 3:17 p.m., two EPPD officers responded to the townhouse complex. As Officers Nicole P. Allen and Irvin G. Johnson, III waited in their patrol cars for dispatch to send them the gate code, they saw Towns walk out of a nearby pedestrian gate. Towns, who was more than six feet tall and weighed 281 pounds, matched the description of the suspect provided by dispatch - a black male on foot wearing red pants and no shirt; Towns was putting on a t-shirt as he walked out of the pedestrian gate. The officers got out of their vehicles and told Towns that they needed to speak with him, but Towns ignored them and kept walking. Officer Johnson noticed that Towns was sweating, which was consistent with having just come from an argument or a fight. For safety reasons, Officer Johnson then told Towns that he was being detained until the officers figured out what was going on. When Officer Johnson put his hand on Towns' forearm to handcuff him, Towns slapped his hand away and took off running across the street and into a heavily wooded area that led to a row of houses on the next street over.

         Both officers ran after Towns, but a couple of minutes later, Officer Allen realized that the patrol cars were unlocked with the keys inside, and she turned back to secure the vehicles. Officer Johnson continued the chase. After a few more minutes of running, Towns' pants slid down, and he tripped over a log and fell to the ground. Towns kicked off his pants, losing a shoe in the process, but before he could get up and continue running, Officer Johnson caught up to him. Towns was lying face down on the ground when Officer Johnson got to him, and Officer Johnson ordered Towns to put his hands behind his back. Towns refused at first, but when Officer Johnson threatened to pepper spray him in the face, Towns said, "okay, you got me," and he put his hands behind his back so that Officer Johnson could handcuff him. From that point on, Towns did not attempt to flee, struggle, fight, or otherwise actively resist attempts to get him to walk out of the woods to a patrol car so that he could be taken to jail.

         At 3:22 p.m., Officer Johnson radioed that he had the suspect in custody. Officer Johnson then reported their location, which was behind a house one street over from the townhouse complex. Officer Johnson requested backup and an ambulance for Towns, who was breathing heavily and kept saying that he was tired. Appellant came over the radio and said to hold off on the ambulance until he arrived and assessed the situation. Officer Johnson and Towns then sat catching their breath as they waited for the other officers to arrive.

         At 3:23 p.m., Officer Rachel Robinson arrived with Appellant's co-defendant, Corporal Howard J. Weems, Jr., followed by Officer Allen and then Appellant. Officer Robinson and Corporal Weems walked into the backyard of the house, down an embankment, across a small creek, and up the other side to get to Officer Johnson and Towns so that they could help get Towns up and escort him to a patrol car. Officer Johnson, Officer Robinson, and Corporal Weems were able to get Towns on his feet, but after walking a few steps, Towns collapsed to the ground and complained that he was tired. Officer Johnson and Corporal Weems helped Towns to his feet a second time, and Towns again walked ...

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