Stewart v. State

S
In the Supreme Court of Georgia



                                     Decided: May 17, 2021


                 S21A0074. STEWART v. THE STATE.


      ELLINGTON, Justice.

      A jury found James Stewart guilty of felony murder and

aggravated assault in the shooting death of his girlfriend, Wendy

Johnson. Stewart contends that the trial court committed plain

error in giving an improper sequential verdict form to the jury and

that his counsel was ineffective for failing to object to the verdict

form. In addition, Stewart contends that his sentence for aggravated

assault (life without parole) was illegal. 1 For the reasons explained


      1 The shooting occurred on July 24, 2017. A Haralson County grand jury
returned an indictment on August 29, 2017, charging Stewart with malice
murder (Count 1), felony murder predicated on aggravated assault (Count 2),
aggravated assault (Count 3), and discharging a firearm under the influence
of alcohol or drugs (Count 4). At the beginning of Stewart’s trial on December
3, 2018, the State requested that the trial court enter an order of nolle prosequi
on the firearms charge (Count 4). The jury found Stewart not guilty on Count
1 and guilty on Counts 2 and 3. By judgment entered on January 9, 2019, the
trial court sentenced Stewart to life in prison without parole for felony murder
below, we vacate the sentence for aggravated assault and otherwise

affirm Stewart’s convictions. 2

      Johnson was killed by a bullet that entered her right shoulder

and tore through vital organs in her chest. Stewart was the sole

witness to the shooting. At trial, Stewart testified as follows. Just

before the shooting, he went outside to help Johnson retrieve some

things from her car. He set his gun, which he almost always kept

within arm’s reach, on the top of the car and then leaned in the open

door to kiss and hug Johnson, who was seated in the front passenger

seat. Then, Stewart buckled the seatbelt around Johnson and closed

the door, intending to go around and get into the driver’s seat. He

grabbed the gun, which was still sitting on the roof of the car, and it

went off. Stewart insisted that he fired the gun accidentally, but he



(Count 2) and life in prison without parole for aggravated assault (Count 3).
Stewart filed a timely motion for a new trial, which he amended on October 16
and November 18, 2019. After a hearing, the trial court denied the motion for
a new trial on February 7, 2020. Stewart filed a timely notice of appeal, and
his appeal was docketed in this Court to the term beginning in December 2020
and submitted for decision on the briefs.
      2 Stewart does not challenge the sufficiency of the evidence, so we do not

consider it, as this Court no longer reviews as a matter of course sufficiency of
the evidence in the absence of an enumerated error in non-death penalty cases.
See Davenport v. State, 

309 Ga. 385

, 399 (4) (b) (846 SE2d 83) (2020).
                                       2
admitted his “negligence to gun safety” in handling a loaded firearm

near Johnson after he had been drinking heavily and smoking

marijuana.

        Stewart       requested   a    jury   instruction    on   involuntary

manslaughter predicated on two misdemeanors: reckless conduct

and discharging a firearm while under the influence of alcohol or

drugs. The trial court determined that the requested instruction was

warranted by the evidence, which included Stewart’s testimony that

he was negligent in handling a firearm when he was intoxicated.3

After       general    instructions,    including    those    regarding      the

presumption of innocence, the reasonable doubt standard, and the



        3See OCGA §§ 16-5-3 (a) (“A person commits the offense of involuntary
manslaughter in the commission of an unlawful act when he causes the death
of another human being without any intention to do so by the commission of
an unlawful act other than a felony.”); 16-5-60 (b) (“A person who causes bodily
harm to or endangers the bodily safety of another person by consciously
disregarding a substantial and unjustifiable risk that his act or omission will
cause harm or endanger the safety of the other person and the disregard
constitutes a gross deviation from the standard of care which a reasonable
person would exercise in the situation is guilty of a misdemeanor.”); 16-11-134
(a) (1) (“It shall be unlawful for any person to discharge a firearm while . . .
[u]nder the influence of alcohol or any drug or any combination of alcohol and
any drug to the extent that it is unsafe for the person to discharge such firearm
except in the defense of life, health, and property[,]” which conduct shall
constitute “a misdemeanor of a high and aggravated nature.”).
                                        3
credibility of witnesses, and after instructions defining the charged

offenses of malice murder, felony murder, and aggravated assault,

the trial court explained the verdict form, including the provision for

the lesser offense of involuntary manslaughter. The court instructed

the jury:

     If you do not believe beyond a reasonable doubt that the
     defendant is guilty of malice murder and/or felony murder
     but do believe beyond a reasonable doubt that the
     defendant is guilty of involuntary manslaughter, then you
     would be authorized to find him guilty of involuntary
     manslaughter. And in that event the form of your verdict
     would be – and we specified it for you with the bold
     wording for you to find accordingly.

The court instructed the jury, as Stewart requested, that a person

commits involuntary manslaughter by causing the death of another

person without any intention to do so by the commission of the

offense of reckless conduct or by the commission of the offense of

discharging a firearm while under the offense of alcohol or drugs,

and then gave the statutory definitions of those predicate offenses.

At the conclusion of the charge, the court gave the pattern jury

instruction regarding the jury’s verdict: “Whatever your verdict is,



                                  4
it must be unanimous; that is, it must be agreed to by all.” 4 This was

the only reference to unanimity in the charge recited to the jury.

     The preprinted verdict form read as follows:

                            VERDICT
     We, the jury, find by unanimous verdict:
     As to Count 1: Malice Murder:
     ______Not Guilty OR ______Guilty
     As to Count 2: Felony Murder:
     ______Not Guilty OR ______Guilty
     IF YOUR VERDICT AS TO COUNT 1 AND 2 FOR
     MALICE MURDER AND FELONY MURDER IS NOT
     GUILTY, THEN PROCEED TO RENDER VERDICT
     AS TO THE LESSER INCLUDED OFFENSE OF
     INVOLUNTARY MANSLAUGHTER BELOW. IF
     YOUR VERDICT AS TO COUNT 1 OR COUNT 2 FOR
     MALICE MURDER OR FELONY MURDER IS
     GUILTY THEN SKIP TO COUNT 3.
     Lesser included offense of Involuntary Manslaughter:
     ______Not Guilty OR ______Guilty
     As to Count 3: Aggravated Assault:
     ______Not Guilty OR ______Guilty

     Stewart did not object to the jury instructions or to the verdict

form. At the end of the jury’s deliberations, the foreperson checked

“not guilty” for malice murder and “guilty” for felony murder and

aggravated assault on the verdict form. The foreperson made no


     4  See Suggested Pattern Jury Instructions, Vol. II: Criminal Cases, §
1.70.40 (4th ed., 2007).
                                    5
mark on the line on the verdict form for involuntary manslaughter.

      1. Stewart argues that the verdict form that the trial court

provided to the jury constituted an improper sequential jury

instruction, because the form mandated that the jury reach a

unanimous verdict of not guilty on both malice murder and felony

murder before considering a verdict on the lesser offense of

involuntary manslaughter. Stewart contends that the trial court

committed plain error by providing the form to the jury. For the

reasons that follow, we discern no plain error.

      (a) This Court has held that, when the evidence presented in a

criminal trial warrants a jury instruction on a lesser-included

offense, the trial court errs if it instructs the jury that it may

consider the lesser offense only if it first unanimously finds the

defendant not guilty of the indicted greater offense. See Camphor v.

State, 

272 Ga. 408

, 414 (6) (d) (529 SE2d 121) (2000).5 An instruction


      5 See also Arrington v. Collins, 

290 Ga. 603

, 608 (3) (724 SE2d 372) (2012)
(explaining that, under Cantrell v. State, 

266 Ga. 700

, 703 (469 SE2d 660)
(1996), “where a jury deliberates a greater offense as well as a lesser included
offense, unanimity among the jurors is not required as to the greater offense
before the jury can vote on the lesser included offense; what is required is that

                                       6
that tells the jury that it should consider possible verdicts in a

particular sequence is not an improper sequential jury instruction

as long as the instruction does not insist on unanimity as to a not-

guilty verdict on the greater offense before consideration of the

lesser offense. See Morris v. State, 

303 Ga. 192

, 198 (V) (A) (811

SE2d 321) (2018) 6; Armstrong v. State, 

277 Ga. 122

, 122 (2) (587

SE2d 5) (2003); 

Camphor, 272 Ga. at 414

(6) (d); Suits v. State, 

270

Ga. 362

, 366 (6) (507 SE2d 751) (1998). See also Jackson v. State,



the jury return a unanimous verdict as to the whole”); 

Cantrell, 266 Ga. at 702

-
703 (adopting the reasoning from other jurisdictions that requiring a jury to
convict or acquit on the greater offense before considering the lesser offense
gives the prosecution an unfair advantage, because jurors who favor the lesser
offense, unless they can dissuade those favoring the greater, may very well
choose to vote for conviction of the greater offense rather than to hold out until
a mistrial is declared and the defendant is left without a conviction on any
charge); Kunselman v. State, 

232 Ga. App. 323

, 324-325 (1) (501 SE2d 834)
(1990) (relying on Cantrell and identifying reversible error where the trial
court charged the jury, with respect to one count of the indictment, “if you find
the defendant not guilty” of that offense, “you would then and only then be
authorized to consider the lesser included offense” on that count).
       6 We note that Morris concerned voluntary manslaughter as a lesser

offense of malice murder and felony murder predicated on aggravated assault
and discussed a sequential jury instruction that we rejected in Edge v. State,

261 Ga. 865

, 867 (2) (414 SE2d 463) (1992). See 

Morris, 303 Ga. at 197

(V) (a).
The issues of evidence of provocation and passion that are unique to voluntary
manslaughter as a lesser offense are not raised in this case. See Suits v. State,

270 Ga. 362

, 366 (6) (507 SE2d 751) (1998); McNeal v. State, 

263 Ga. 397

, 398
(2) (435 SE2d 47) (1993). Our reliance on Morris in this case is therefore limited
to its analysis of the law applicable to lesser offenses generally.
                                        7

267 Ga. 130

, 133 (12) (475 SE2d 637) (1996) (“We know of no

authority which requires that charges on a lesser included offense

. . . precede the charge on the greater offense.”). We have approved

the pattern jury instruction on lesser included offenses and deemed

it preferable in general to alternative instructions. See 

Camphor,

272 Ga. at 414

(6) (d). That pattern instruction provides (with blanks

to fill in the pertinent lesser offense):

     If you do not believe beyond a reasonable doubt that the
     defendant is guilty of (indicted crime), but do believe
     beyond a reasonable doubt that the defendant is guilty of
     __________, then you would be authorized to find the
     defendant guilty of __________, and the form of your
     verdict in that event would be, “We, the jury, find the
     defendant guilty of __________.”

Suggested Pattern Jury Instructions, Vol. II: Criminal Cases, §

1.60.11 (4th ed., 2007).

     The jury instructions at issue in this case, in particular the

verdict form, deviated from the pattern instruction. See Rowland v.

State, 

306 Ga. 59

, 68 (6) (829 SE2d 81) (2019) (“A preprinted verdict

form is treated as part of the jury instructions which are read and

considered    as   a   whole   in   determining   whether   there   is

                                    8
[instructional] error.” (citations and punctuation omitted)). Through

the form, the trial court instructed the jury of only one circumstance

when it could “render verdict” as to the lesser offense of involuntary

manslaughter: if it first reached a “verdict,” which the recited

instructions and the verdict form specified must be “unanimous,” of

“not guilty” as to Count 1 and Count 2 for malice murder and felony

murder. Compared to other cases in which we have held that jury

instructions were not improperly sequential – because, although the

instructions in those cases deviated from the pattern instruction on

lesser offenses, they did not compel the jury to reach a unanimous

verdict of not guilty on the greater offense before it could consider

the lesser offense – the language of the verdict form in this case is

more limiting of the jury’s consideration of the lesser offense.7 We


      7See, e.g., 

Morris, 303 Ga. at 198

(V) (A) (upholding instruction that “you
are not required to reach unanimous agreement on a greater offense before
considering lesser included offenses[;] [y]ou must, however, consider the
greater offense before considering any lesser included offenses”); 

Camphor, 272
Ga. at 414

(6) (d) (upholding instruction that “should you find the defendant
not guilty of the crime of burglary, you would be authorized to consider under
the evidence whether or not he did, at said time and place, commit the lesser
offense of criminal trespass”); Jones v. State, 

263 Ga. 835

, 839 (5) (439 SE2d
645) (1994) (upholding instruction, after instructions setting forth the

                                       9
reiterate that trial courts that elect to dictate the sequence in which

a jury is to consider (deliberate about) possible verdicts must avoid

any instruction, including on a verdict form, that directs the jury to

consider the lesser offense only if it first unanimously finds the

defendant not guilty of (reaches a verdict of not guilty on) the

indicted greater offense.

      (b) Given Stewart’s failure to object to the jury instructions,

including the verdict form, however, we do not address this claim of

error in terms of ordinary appellate review. See Russell v. State, 

309

Ga. 772

, 782 (3) (a) (848 SE2d 404) (2020). We must instead resolve

the issue by examining whether Stewart has cleared the much

higher bar of showing plain error.

      To show plain error, the appellant must demonstrate that
      the instructional error was not affirmatively waived, was
      obvious beyond reasonable dispute, likely affected the
      outcome of the proceedings, and seriously affected the
      fairness, integrity, or public reputation of judicial
      proceedings. Satisfying all four prongs of this standard is




elements of felony murder, that “in your consideration of the indictment, that
is, the charge of felony murder, you may also consider the lesser included
offense of involuntary manslaughter in the commission of an unlawful act”).
                                     10
     difficult, as it should be.

Clarke v. State, 

308 Ga. 630

, 637 (5) (842 SE2d 863) (2020) (citations

and punctuation omitted). See also State v. Herrera-Bustamante,

304 Ga. 259

, 264 (2) (b) (818 SE2d 552) (2018) (The appellate court

need not analyze the other elements of the plain-error test when the

appellant fails to establish any one of them.). An instructional error

is obvious beyond reasonable dispute when the error is “plain under

controlling precedent or in view of the unequivocally clear words of

a statute or rule.” Cheddersingh v. State, 

290 Ga. 680

, 685 (2) n.5

(724 SE2d 366) (2012) (citations and emphasis omitted). See also

Hill v. State, 

310 Ga. 180

, 194 (12) (a) (850 SE2d 110) (2020) (“An

error cannot be plain where there is no controlling authority on

point.”) (citation and punctuation omitted).

     The verdict form at issue here is not erroneous in view of the

unequivocally clear words of a statute or court rule. And Stewart

cites only one appellate case that actually reversed a conviction

based on an improper sequential jury instruction: Kunselman v.

State, 

232 Ga. App. 323

, 324-325 (1) (501 SE2d 834) (1990). The

                                   11
differences between the instructions at issue in Kunselman and the

instructions used in Stewart’s case are significant enough that

Kunselman does not constitute controlling authority on point for the

proposition that any error in the instructions at issue here was

obvious beyond reasonable dispute. In Kunselman, the Court of

Appeals rejected an instruction that, if the jury found the defendant

not guilty of the indicted offense, it would “then and only then be

authorized to consider the lesser included offense.” The instructions

in this case did not expressly prohibit the jury from considering the

lesser offense unless it first unanimously found Stewart not guilty

of the greater offenses. In the absence of controlling authority on

point, Stewart cannot meet the second prong of the plain-error test,

and this claim of error fails. See Horton v. State, 

310 Ga. 310

, 324

(3) (c) (849 SE2d 382) (2020); 

Hill, 310 Ga. at 194-195

(12) (a).

     2. Stewart contends that he received ineffective assistance of

counsel, based on his attorney’s failure to object to the verdict form

on the basis that it constituted an improper sequential jury

instruction.

                                  12
     To prevail on his claim of ineffective assistance of counsel,

Stewart “must show both that his trial counsel’s performance was

professionally deficient and that, but for such deficient performance,

there is a reasonable probability that the result of the trial would

have been different.” Wilkins v. State, 

308 Ga. 131

, 138 (4) (839 SE2d

525) (2020) (citation and punctuation omitted). See also Strickland

v. Washington, 

466 U.S. 668

, 687 (104 SCt 2052, 80 LE2d 674)

(1984). To satisfy the deficiency prong, a defendant must

demonstrate that his attorney “performed at trial in an objectively

unreasonable way considering all the circumstances and in the light

of prevailing professional norms.” Smith v. State, 

308 Ga. 81

, 87 (3)

(839 SE2d 630) (2020) (citation and punctuation omitted). “In

examining an ineffectiveness claim, a court need not address both

components of the inquiry if the defendant makes an insufficient

showing on one.” 

Wilkins, 308 Ga. at 138

(4) (citation and

punctuation omitted).

     Stewart has not shown under existing precedent that the

verdict form clearly constituted an improper sequential jury

                                 13
instruction, as explained in Division 1 

(b), supra

. Consequently,

Stewart has not carried his burden of showing that his trial counsel’s

failure to object to the verdict form was objectively unreasonable,

and this claim therefore fails. See 

Smith, 308 Ga. at 89

(3) (holding

that counsel’s performance was not deficient for failing to object to a

jury instruction where the objection would have required a change,

or at least a clarification, of binding precedent to prevail); Arrington

v. Collins, 

290 Ga. 603

, 607-608 (3) (724 SE2d 372) (2012) (While a

jury instruction that the jury “could consider the lesser-included

offense of simple possession if it first found [the defendant] not

guilty   of   trafficking”   deviated   from the   preferred    pattern

instruction, it was not substantially different from charges which

have been upheld on appeal, and appellate counsel therefore could

not be held ineffective for failing to challenge the charge as

“improper” on appeal.).

     3. Although Stewart does not raise the issue on appeal, we have

identified a merger error in his sentencing. “When the only murder

conviction is for felony murder and a defendant is convicted of both

                                   14
felony murder and the predicate felony of the felony murder charge,

the conviction for the predicate felony merges into the felony murder

conviction.” Allen v. State, 

307 Ga. 707

, 711 (5) (838 SE2d 301)

(2020) (citation and punctuation omitted). See OCGA § 16-1-7 (a) (1)

(When the same conduct of an accused may establish the

commission of more than one crime, the accused may not “be

convicted of more than one crime if . . . [o]ne crime is included in the

other[.]”). Because the crime charged in Count 3, aggravated assault

by shooting Johnson with a gun, was the predicate felony for the

charge of felony murder in Count 2, the aggravated assault

conviction merged with the felony murder conviction for sentencing

purposes. See 

Allen, 307 Ga. at 710-711

(5). The trial court therefore

erred in sentencing Stewart on Count 3, and the judgment is vacated

in part to correct the merger error. See Hill v. 

State, 310 Ga. at 198

(14); 

Allen, 307 Ga. at 711

(5). Stewart’s remaining argument about

the sentence on Count 3 is therefore moot.

     Judgment affirmed in part and vacated in part. All the Justices
concur.



                                  15

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