State v. Owens

312 Ga. 212

862 S.E.2d 125

The STATE

v.OWENS.

Owens

v.The State.

S21A0640, S21X0641

Supreme Court of Georgia.

Decided: August 10, 2021

Fani T. Willis, District Attorney, Lyndsey Hurst Rudder, Deputy D.A., Burke Olivia Doherty, Fulton County District Attorney's Office, 136 Pryor Street, 4th Floor, Atlanta, Georgia 30303, Christopher M. Carr, Attorney General, Paula Khristian Smith, Senior Assistant Attorney General, Patricia B. Attaway Burton, Deputy Attorney General, Department of Law, 40 Capitol Square, S.W., Atlanta, Georgia 30334, for Appellant in S21A0640.

Lauren Beth Shubow, Office of the Public Defender, 100 Peachtree Street NW, Suite 1600, Atlanta, Georgia 30303, for Appellee in S21A0640.

Lauren Beth Shubow, Office of the Public Defender, 100 Peachtree Street NW, Suite 1600, Atlanta, Georgia 30303, for Appellant in S21X0641.

Fani T. Willis, District Attorney, Lyndsey Hurst Rudder, Deputy D.A., Burke Olivia Doherty, Fulton County District Attorney's Office, 136 Pryor Street, 4th Floor, Atlanta, Georgia 30303, Christopher M. Carr, Attorney General, Paula Khristian Smith, Senior Assistant Attorney General, Patricia B. Attaway Burton, Deputy Attorney General, Department of Law, 40 Capitol Square, S.W., Atlanta, Georgia 30334, for Appellee in S21X0641.

McMillian, Justice.

After Stephan Joseph Owens was convicted of felony murder and other crimes related to the shooting death of Richard Osadebe Egoegonwa, he was granted a new trial on the felony murder charge. The State appeals, and Owens cross-appeals. Because the trial court erred in granting a new trial on the ground that the verdicts as rendered were repugnant, we reverse that portion of the order granting the new trial. In Owens's cross-appeal, we affirm except to correct a sentencing error.¹

The evidence presented at trial showed that Jonathan Hampton invited his friends Egoegonwa, Owens, and Owens's girlfriend, Jasmine Keith, to a barbeque hosted by Hampton's niece on July 4, 2015. Hampton drove them all to the party in Keith's minivan that evening. Along the way, they dropped off two of Keith's older children at her mother's apartment but brought two toddlers and a newborn baby to the party.

Egoegonwa purchased liquor to share at the party and became intoxicated that evening; his postmortem blood alcohol level was .236. The partygoers lit firecrackers, and as the guests were eating, drinking, and laughing together after midnight, Egoegonwa started rambling belligerently, insulting Owens, and insisting that Owens "owe[d]" him, presumably for the liquor. They "exchanged words," and Owens pushed Egoegonwa, who stumbled and fell to the ground. Egoegonwa exclaimed that Owens could not treat him like "an ant." The two were separated, and seeing the potential for violence, the hosts asked them to leave.

Hampton, Owens, and Keith packed up and went to secure the children in the van, but in the driveway Egoegonwa staggered and ran toward Owens angrily, fists closed, telling Owens, "[Y]ou can't keep treating me like this." Owens pointed a gun at Egoegonwa, who was unarmed, and expressed anger at the hosts for insisting that he and his family leave. Hampton convinced Owens to put away his gun, and others held Egoegonwa back so that Owens could enter the van. Hampton drove, Egoegonwa sat in the front passenger seat, and Owens sat immediately behind the driver's seat. The baby was in a car seat behind Egoegonwa, and Keith and the two toddlers were in the back.

On their way to pick up Keith's older children, who were 10 to 15 minutes away, Egoegonwa turned toward Owens, and they were "fussing back and forth." Egoegonwa continued to ramble loudly about how poorly he had been treated, but Hampton and Owens ignored and talked over him, telling jokes to lighten the mood. When Egoegonwa persisted, Owens shoved Egoegonwa's shoulder and told him, "[S]hut up, turn around, nobody wants to hear you talking." Then, Egoegonwa pushed Owens's head, and Hampton saw Owens's gun come close to Egoegonwa's face. As they parked at Keith's mother's apartment, Owens shot Egoegonwa once, and Egoegonwa died at the scene. Hampton testified that he was "not sure if [the children] were [a]sleep" at the moment of the shooting. After exiting the van, Owens briefly kissed Keith and the children, told Hampton that he was sorry, and fled on foot. Owens turned himself in to the police a few days later.

At trial, Owens testified that he acted in self-defense because he thought Egoegonwa would strike him, that Egoegonwa had grabbed for Owens's gun, and that the gun went off accidentally as the two men were struggling over the gun in the minivan. The trial court agreed to give a jury instruction on voluntary manslaughter as a lesser offense at Owens's request, including an instruction that the jury must consider whether mitigating circumstances existed before rendering verdicts on malice murder and felony murder. As for completing the verdict form, the trial court instructed that on the one hand, if the jury found Owens guilty of an offense beyond a reasonable doubt, the form of the verdict would be "we, the jury, find the defendant guilty." On the other hand, the trial court instructed that if the jury did not believe that Owens was guilty of the offense, the form of the verdict would be "we, the jury, find the defendant not guilty."

Both the prosecutor and defense counsel reviewed the verdict form, and neither objected before the jury returned its verdict. The verdict form had separate lines for each offense, and the final one directed the jury to consider voluntary manslaughter:

As to Count 1, MURDER, and Count 2, FELONY MURDER, if you found mitigating circumstances as provided in the Court's charge, then, as to VOLUNTARY MANSLAUGHTER, We, the members of the jury, find the Defendant Stephan J. Owens,

NOT GUILTY_________ GUILTY_________

The jury checked guilty on the lines for felony murder, both counts of aggravated assault, both counts of possession of a firearm during the commission of a felony, and both counts of cruelty to children in the third degree, but it checked not guilty on the lines for malice murder and voluntary manslaughter. In a conference outside the jury's presence before the verdicts were published, the trial court discussed the verdicts with the parties, at which point the defense objected to accepting the verdicts, arguing, without explanation, that they were confusing and required speculation to discern the jury's intent. The court overruled the objection and accepted the verdicts. After the verdicts were published, the defense objected again to the form and legality of the verdicts.

Following a hearing on the motion for new trial, a different trial judge than the one who presided over Owens's trial vacated the jury's verdicts on felony murder and voluntary manslaughter as repugnant and granted a new trial.² See McElrath v. State , 308 Ga. 104, 111, 839 S.E.2d 573 (2020) (when a jury makes affirmative findings as shown on the record that cannot logically or legally exist at the same time, such verdicts are repugnant and must be vacated). First, the court determined that Owens properly preserved the issue of whether the verdicts were repugnant because he timely objected to accepting the verdicts. Second, citing Cheddersingh v. State , 290 Ga. 680, 724 S.E.2d 366 (2012), the court concluded that the verdict form was erroneous because it instructed the jury to consider voluntary manslaughter only if the jury found mitigating circumstances, and because the jury returned a verdict on that charge, the jury must have decided that there were mitigating circumstances "as a precondition." Citing Edge v. State , 261 Ga. 865, 414 S.E.2d 463 (1992), which held that "where a jury renders a [guilty] verdict for voluntary manslaughter, it cannot also find felony murder based on the same underlying aggravated assault," the court concluded that the jury, "having found mitigation as expressed in the verdict form, could not [legally] return a verdict of guilty on felony murder and not guilty on voluntary manslaughter," and therefore that the verdicts were repugnant under McElrath , 308 Ga. at 111 (2) (c), 839 S.E.2d 573.

Case No. S21A0640 (State's Appeal)

1. The State asserts that the trial court erred in granting a new trial as to felony murder due to the court's view that the verdict form was erroneous and that the verdicts were repugnant.

(a) As an initial matter, both parties argue that the other has waived its claims on appeal regarding the verdicts. Owens contends that because the State focused its initial appellate brief on the verdict form rather than the trial court's determination that the verdicts were repugnant, the State abandoned any argument on appeal that the verdicts were repugnant. In reviewing the State's briefing on appeal, we note that in its opening brief, the State enumerated as error the grant of the new trial but focused its argument on problems with the verdict form and why the trial court erred in determining that the jury must have found mitigating circumstances; it then expanded its argument as to why the verdicts were not repugnant in its reply brief. We conclude that although the State's initial brief was inartful in how it presented its arguments, the State sufficiently challenged the basis for the grant of a new trial such that it has not abandoned this argument on appeal. See Supreme Court Rules 19, 22 (regarding enumerations of error, argument, and citation of authority).

Conversely, the State contends that because Owens did not object to the verdict form before the jury retired to deliberate, the trial court erroneously found that Owens had preserved his claim regarding the verdict. See OCGA § 17-8-58 (a) ("Any party who objects to any portion of the charge to the jury ... shall inform the court of the specific objection ... before the jury retires to deliberate."). Therefore, the State argues, the trial court should have applied plain error review, and under plain...