Maxwell v. State

311 Ga. 673

859 S.E.2d 58

MAXWELL

v.The STATE.

Washington

v.The State.

S21A0302, S21A0303

Supreme Court of Georgia.

Decided: June 1, 2021

Steven Lee Sparger, for Appellant in (case no. S21A0302).

The Amusan Law Firm, PC, Solomon Adeoye Amusan, for Appellant in (case no. S21A0303).

Margaret Ellen Heap, District Attorney, Matthew Breedon, Bradley Robert Thompson, Assistant District Attorneys; Christopher M. Carr, Attorney General,Patricia B. Attaway Burton, Deputy Attorney General, Paula Khristian Smith, Senior Assistant Attorney General, for Appellee.

Melton, Chief Justice.

Zonnique Maxwell and Tyquarius Washington (collectively "Appellants") appeal the lower court's partial denial of their respective motions for autrefois convict and pleas of procedural double jeopardy based on OCGA §§ 16-1-7 and 16-1-8. For the reasons set forth below, we affirm in part and reverse in part.¹

1. The available evidence² relevant to Appellants’ motions indicates that, on September 17, 2017, a shooting occurred on East 33rd Street in Savannah. A police officer was dispatched to that scene, but he was subsequently directed to Memorial Medical Center, where Jaheim Morris had arrived with a gunshot wound to his head. Morris died later that day. At the hospital, police learned that Morris had been driven to the hospital in a private car, which had a bullet hole in one of its doors. The occupants of this car (other than Morris) were Maxwell, Washington, and two others. Police searched these individuals for weapons and recovered a handgun from Maxwell and a revolver and a pistol from Washington.

Maxwell was arrested for possession of a handgun by a person under the age of 18, see OCGA § 16-11-132 (b), and was subsequently accused in the State Court of Chatham County on May 16, 2018, for this misdemeanor offense.³ On September 19, 2018, after further investigation into Morris's shooting, Maxwell was indicted in the Superior Court of Chatham County for two counts of felony murder (Counts 22 and 23), one count of aggravated assault (Count 24), one count of carrying a weapon by an underage person without a license (Count 29), three counts of possession of a firearm during the commission of a felony (Counts 30 and 32), and seven counts of violating the Street Gang Terrorism and Prevention Act (Counts 49-51 and Counts 56-59). On January 30, 2019, Maxwell entered a negotiated guilty plea to the firearm charge in state court, and she was sentenced to serve 12 months.⁴ On February 13, 2019, Maxwell filed a "Motion in Autrefois Convict and Plea of Former Jeopardy," seeking dismissal of the superior court charges against her pursuant to Georgia's statutory proscriptions against double jeopardy, OCGA §§ 16-1-7 and 16-1-8. Maxwell maintained that the superior court prosecution was barred because those charges involved the same gun and arose from the same conduct to which she pleaded guilty in state court.

Similar to Maxwell, Washington was initially arrested at the hospital and charged with carrying weapons without a license. See OCGA § 16-11-126 (h). He was subsequently accused in the State Court of Chatham County on May 16, 2018, for this misdemeanor offense.⁵ On September 19, 2018, Washington was indicted in the Superior Court of Chatham County for two counts of felony murder (Counts 22 and 23), one count of aggravated assault (Count 24), two counts of carrying a weapon without a license (Counts 33 and 34), three counts of possession of a firearm during the commission of a felony (Counts 35-37), and eight counts of violating the Street Gang Terrorism and Prevention Act (Counts 49-51 and Counts 60-64), all in relation to Morris's shooting.⁶ On September 18, 2018, Washington entered a negotiated guilty plea on the firearm charge in state court and was sentenced to 12 months of probation.⁷ Thereafter, on March 7, 2019, Washington filed a motion to adopt Maxwell's procedural double jeopardy motion.

On May 15, 2019, and October 21, 2019, the trial court held a hearing regarding the motions filed by Appellants. At this hearing, the State agreed to the dismissal of the single count of carrying a weapon by an underage person without a license against Maxwell (Count 29) and the two counts of carrying a weapon without a license against Washington (Counts 33 and 34).⁸ The trial court granted Appellants’ motions with regard to these charges, because they arose from Appellants’ possession of the same handguns at the hospital and were thereby barred by procedural double jeopardy. However, the trial court denied the motions with respect to all of the remaining superior court charges. Appellants now challenge this ruling with largely identical arguments.

For the reasons set forth below, we hold that, for the majority of the superior court counts against Appellants, the trial court properly denied Appellants’ motions. However, as set out in Division 4, we hold that, with respect to one count of street gang activity against Maxwell and two counts against Washington, the trial court should have dismissed these counts as they are explicitly premised in the indictment on the counts that were dismissed.

2. "On appeal from the grant or denial of a double jeopardy plea in bar, we review the trial court's oral and written rulings as a whole to determine whether the trial court's findings support its conclusion." (Citation and punctuation omitted.) State v. Hill , 333 Ga. App. 785, 785, 777 S.E.2d 265 (2015). When the facts are undisputed, our review of the trial court's application of the law to those facts is de novo. See id. The trial court's factual findings are assessed under the standard of clear error. See Jenkins v. State , 294 Ga. 506, 508 (1), 755 S.E.2d 138 (2014).

As background for Appellants’ claim regarding procedural double jeopardy protection, we have previously explained:

The [constitutional] rule against double jeopardy is ... expressed in various terms but basically provides that no person shall be put in jeopardy of life or liberty more than once for the same offense. It is a simple and concise statement of law. Unfortunately[,] it has become confused because many courts have not distinguished its application to the bar of successive prosecutions and the bar to multiple convictions. The bar to successive prosecutions is referred to as the procedural aspect of the double jeopardy rule. The rationale behind the bar to successive prosecutions is to prevent harassment of the accused. The bar to multiple convictions is referred to as the substantive aspect. The rationale behind the bar to multiple convictions is to prevent multiple and excessive punishments.

The bar to multiple convictions usually arises where several crimes arising out of one criminal transaction are tried at the same time. In such cases the rule does not operate until after the verdicts. Under Georgia law it bars the conviction and therefore the punishment of all crimes which are as a matter of law or a matter of fact included in a major crime for which the defendant has been convicted. State v. Estevez , 232 Ga. 316, 206 S.E.2d 475 (1974). However, the bar to multiple convictions may have a procedural aspect where the crimes arising out of the same criminal transaction are tried separately. Where crimes are tried separately it is generally held that if multiple convictions arising out of a single prosecution are barred they will likewise be barred from successive prosecution. Therefore[,] when crimes are to be prosecuted separately[,] the more serious known crimes should be prosecuted first to avoid the conviction of a lesser crime barring a subsequent prosecution for a more serious crime.

(Footnote omitted.) Keener v. State , 238 Ga. 7, 7-8, 230 S.E.2d 846 (1976).

These constitutional double jeopardy protections are enhanced by additional statutory protections provided under state law. See State v. Adams , 355 Ga. App. 875, 880-881, 846 S.E.2d 148 (2020). "Because the Georgia Code expands the proscription of double jeopardy beyond that provided for in the United States and Georgia Constitutions, all questions of double jeopardy in Georgia must now be determined under OCGA §§ 16-1-6 [through] 16-1-8." (Footnote and punctuation omitted.) Prater v. State , 273 Ga. 477, 480 (4), 545 S.E.2d 864 (2001). Unlike constitutionally based double jeopardy, statutory procedural double jeopardy extends the concept of res judicata to the successive prosecution of different crimes arising from the same conduct in situations where the State should have prosecuted the different crimes in a single proceeding. See, e.g., McCannon v. State , 252 Ga. 515, 517, 315 S.E.2d 413 (1984).

Turning to the pertinent statutes, OCGA § 16-1-7 (b) provides that "[i]f the several crimes arising from the same conduct are known to the proper prosecuting officer at the time of commencing the prosecution and are within the jurisdiction of a single court, they must be prosecuted in a single prosecution," except as provided in OCGA § 16-1-7 (c).⁹ OCGA § 16-1-8 (b) (1) states, in relevant part:

A prosecution is barred if the accused was formerly prosecuted for a different crime ... if such former prosecution ... [r]esulted in either a conviction or an acquittal and the subsequent prosecution ... is for a crime with which the accused should have been charged on the former prosecution (unless the court ordered a separate trial of such charge)[.]

In other words, "[a] second prosecution is barred under OCGA § 16-1-8 (b) (1) if it is for crimes which should have been brought in the first prosecution under OCGA § 16-1-7 (b)." (Footnote and punctuation omitted.)

Nicely v. State , 305 Ga. App. 387, 388 (1), 699 S.E.2d 774 (2010). Thus, when considered together, OCGA §§ 16-1-7 (b) and 16-1-8 (b) prevent successive prosecutions for crimes: (1) subject to the jurisdiction of the same court; (2) known to the proper prosecuting officer at the time the prosecution commences; and (3) arising from the same conduct. See Banks v. State , 320 Ga. App....