NOTICE: This opinion is subject to modification resulting from motions for reconsideration under Supreme Court Rule 27, the Court’s reconsideration, and editorial revisions by the Reporter of Decisions. The version of the opinion published in the Advance Sheets for the Georgia Reports, designated as the “Final Copy,” will replace any prior version on the Court’s website and docket. A bound volume of the Georgia Reports will contain the final and official text of the opinion.
In the Supreme Court of Georgia
Decided: October 11, 2023
S23A0987. CALDWELL v. THE STATE.
PETERSON, Presiding Justice.
Javion Tremir Caldwell was charged with felony murder
predicated on aggravated assault (Count 1), felony murder
predicated on possession of marijuana with intent to distribute
(Count 2), aggravated assault (Count 3), and possession of
marijuana with intent to distribute (Count 4) in connection with the
shooting death of Jaleen Harrell during a drug deal. Caldwell was
found guilty of Counts 2 and 4 and not guilty of Counts 1 and 3.1 On
1 The crime occurred on March 1, 2019. In June 2019, a Gwinnett County
grand jury indicted Caldwell and Shamarii Bonner and charged them with
felony murder predicated on aggravated assault (Count 1), felony murder
predicated on possession of marijuana with intent to distribute (Count 2),
aggravated assault (Count 3), and possession of marijuana with intent to
distribute (Count 4). After a jury trial in which Caldwell was found guilty on
Counts 2 and 4, the trial court sentenced Caldwell to life with the possibility
of parole on Count 2 and merged Count 4. Caldwell’s motion for new trial, filed
before the sentence was entered, ripened upon entry of judgment. See Southall
v. State, 300 Ga. 462, 466-467 (1) (796 SE2d 261) (2017). He subsequently
appeal, Caldwell argues that the trial court failed to charge the jury
that it had to find that he shot Harrell with a handgun in order to
find him guilty on Count 2. Caldwell alternatively argues that the
jury’s verdicts on Counts 1, 2, and 3 are repugnant, because the
jury’s verdicts on Counts 1 and 3 reflected a finding that he did not
shoot Harrell, even as a party to the crime, which Caldwell argues
also means that it had to acquit him on Count 2.
We reject both claims. Because Caldwell did not object to the
trial court’s jury instructions, including those related to Count 2, we
review that claim for plain error. He cannot show plain error when
Count 2 of the indictment charged that Caldwell shot Harrell with
a handgun and the court instructed the jury that the State had to
prove the material allegations in the indictment. The verdicts are
not repugnant because the court charged the jury that to prove
aggravated assault with a deadly weapon — the conduct underlying
Counts 1 and 3 — the jury had to find that Caldwell acted with a
amended his motion, which the trial court denied in May 2023. Caldwell timely
filed a notice of appeal, and his case was docketed to this Court’s August 2023
term and submitted for a decision on the briefs.
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specific intent to injure Harrell, but this was not an element of
Count 2. We affirm.
The trial evidence showed the following. On March 1, 2019,
Harrell was at Diendy Hall’s house in Lawrenceville when he called
Caldwell to purchase some marijuana. After agreeing on a location,
Caldwell contacted his friend, Shamarii Bonner, to accompany him
to meet Harrell. Caldwell and Bonner traveled in a white Acura
belonging to Caldwell’s girlfriend and met Harrell in a cul-de-sac
near Hall’s house. Around 12:50 p.m., neighbors heard a gunshot
and then saw a white car speed off with two people inside. Harrell
collapsed in a nearby driveway and died from a gunshot wound to
his chest. Green leafy material was recovered from the area where
he was found.
Hall told police that Harrell stated he had gone to Hall’s house
with the intent of calling over a drug dealer and robbing the dealer
of marijuana. During a police interview, Caldwell admitted that he
and Bonner traveled to meet Harrell to sell marijuana. Caldwell
said that upon arriving at the designated location, Harrell
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approached the driver’s side where Caldwell was seated and handed
Caldwell money that Caldwell believed was counterfeit. Caldwell
confronted Harrell about the suspected counterfeit bill, and Harrell
tried to grab the marijuana located on Caldwell’s lap. Caldwell said
that he and Harrell tussled, ripping the bag of marijuana in the
process, and that Bonner then shot Harrell.
At trial, Caldwell’s defense was essentially that if anyone
should be held responsible for Harrell’s death, it should be Bonner,
because Caldwell did not know Bonner had a gun and Bonner fired
the shot that killed Harrell after Harrell attempted to rob Caldwell.
1. Caldwell argues that the trial court failed to charge the jury
as to Count 2 in the manner set forth in the indictment. Specifically,
Caldwell argues that the trial court failed to tell the jury that it had
to find that he shot Harrell with a handgun in order to find him
guilty of Count 2. Caldwell’s claim fails.
Count 2 charged that Caldwell and Bonner, individually and
as parties to a crime, “while in the commission of the offense of
Possession of Marijuana with Intent to Distribute, a felony, did
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cause the death of Jaleen Harrell . . . by shooting him with a
handgun[.]” In instructing the jury, the trial court read Count 2 as
charged, and told the jury that the State had to prove beyond a
reasonable doubt each element of the crimes charged and every
material allegation of the indictment. On causation, the trial court
instructed the jury as follows:
You may find the defendant guilty of felony murder if you
believe that he caused the death of another person by
committing the felony of aggravated assault and/or
possession of marijuana with intent to distribute,
regardless of whether he intended the death to occur.
There must be some causal connection between the felony
murder and the death. Felony murder is not established
simply because the death occurred at the same time as or
shortly after the felony was attempted or committed. The
felony must have directly caused or played a substantial
and necessary part in causing the death, regardless of
when the death ultimately occurred.
The court also defined the crimes of aggravated assault with a
deadly weapon and possession of marijuana with intent to
distribute.
During deliberations, the jury sent a few notes asking for
clarification. In one, the jury pointed out the italicized language
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above, stating:
We are having a struggle with page 18 about causation.
The last two sentences are contradictory. Is there a better
interpretation of the causation of felony murder?
After consulting the parties, the trial court responded by telling the
jury:
We have received the question that you had about the charge of
felony murder. What I can tell you is that you must rely on the
charge as it is written and resolve the charge, along with the
evidence, as you best see the charge to fit to the evidence and as you
recall the evidence to be. I will remind you just to take the charge as
a whole and apply it to the evidence that you heard as a whole. The
jury sent additional notes, with the final one stating:
A juror wants clarification on if the description of
[Harrell’s] death in the indictment (“by shooting him with
a handgun”) at the end of count 2, is merely a description
of how [Harrell] died, or if it was a description of
[Caldwell’s] actions.
With the parties’ consent, the court replied, “The indictment is the
State’s allegations of how the alleged crimes occurred.”
Caldwell now argues on appeal that the trial court failed to
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charge the jury during its initial charge or in its responses to the
jury’s notes that, to find him guilty on Count 2, the jury had to find
that he, either directly or as a party to a crime, shot Harrell with a
handgun. Caldwell argues that the court’s failure to provide this
instruction constructively amended the indictment by allowing the
jury to find him guilty if the State proved merely that Harrell died
during the time Caldwell possessed marijuana with the intent to
distribute it. As part of this argument, Caldwell claims that the
jury’s acquittal on Counts 1 and 3, which were based on aggravated
assault with a deadly weapon, proves that the jury found him guilty
of Count 2 in a manner not alleged in the indictment.
Caldwell did not object to the trial court’s instructions on Count
2 after the initial charge or in response to the jury’s notes, so his
claim is reviewed for only plain error. See OCGA § 17-8-58 (b). To
establish plain error, Caldwell has to
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
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prongs of this standard is difficult, as it should be.
Clarke v. State, 308 Ga. 630, 637 (5) (842 SE2d 863) (2020) (citation
and punctuation omitted). This Court does not have to analyze all
elements of the plain-error test where an appellant fails to establish
one of them. See State v. Herrera-Bustamante, 304 Ga. 259, 264 (2)
(b) (818 SE2d 552) (2018).
Caldwell’s claim fails because he cannot show an obvious error;
the trial court essentially provided the instruction he now argues
was absent. As described above, in its charge to the jury, the trial
court described the allegations in Count 2, which clearly alleged that
during the possession offense, Caldwell “did cause the death of
Jaleen Harrell . . . by shooting him with a handgun[.]”By reading
these allegations and charging the jury that the State had to prove
the material allegations in the indictment, the court instructed the
jury on the very thing that Caldwell claims the court failed to do —
that the State had to prove that Caldwell, either directly or as a
party to the crime, caused Harrell’s death by shooting him with a
handgun. The failure to give a requested jury charge in the exact
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language requested provides no basis for reversal where the
charges, as a whole, substantially cover the applicable principles of
law. See Adkins v. State, 314 Ga. 477, 483 (3) (877 SE2d 582) (2022).
Therefore, Caldwell’s claim fails.
2. In an alternative argument, Caldwell complains that the
jury’s acquittal on Counts 1 and 3 cannot be reconciled with the
jury’s guilty verdict on Count 2, because in finding him not guilty on
Counts 1 and 3, the jury found that he did not shoot Harrell, either
directly or as a party to a crime. He argues that the verdicts are
therefore repugnant. This claim also fails.
Repugnant verdicts occur when, “in order to find the defendant
not guilty on one count and guilty on another, the jury must make
affirmative findings shown on the record that cannot logically or
legally exist at the same time.” McElrath v. State, 308 Ga. 104, 111
(2) (c) (839 SE2d 573) (2020) (emphasis omitted). Repugnant
verdicts must be vacated. See id.
Here, even under Caldwell’s logic, the jury’s verdicts are not
repugnant because they can logically co-exist. Counts 1 and 3
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involved aggravated assault, and the court defined assault as “when
a person attempts to cause a violent injury to the person of another.”
This charge instructed the jury that, in order to find Caldwell guilty
of Counts 1 and 3, it had to find that he intended to cause a violent
injury to Harrell. But the jury was not instructed that a guilty
verdict on Count 2 required a finding of a specific intent to injure.
The jury’s acquittal reasonably could be understood as a finding that
Caldwell did not have the intent to injure Harrell, which was
supported by Caldwell’s claims that he did not know Bonner had a
weapon and that Bonner shot at Harrell only after Harrell appeared
to attack Caldwell.2 And because the jury was not instructed on
specific intent to injure as to Count 2, and instead was instructed
that it would have to find that Caldwell’s possession with intent to
distribute directly caused or played a substantial and necessary part
in causing the death of Harrell, it was not illogical for the jury to
2 Our decision should not be understood as suggesting that our
repugnant verdicts jurisprudence requires or supports the sort of verdict
interpretation that Caldwell argues for here. Caldwell’s argument fails by its
own logic, so we need not engage in further analysis.
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find Caldwell guilty on that count but acquit him on Counts 1 and
3. See State v. Owens, 312 Ga. 212, 217-219 (1) (b) (862 SE2d 125)
(2021) (concluding based on court’s instructions and State’s closing
argument that the verdicts were not repugnant, notwithstanding
that the verdict form in isolation could suggest otherwise); Carter v.
State, 298 Ga. 867, 869 (785 SE2d 274) (2016) (no repugnant verdict
on “two different offenses upon which the jury was free to find [the
defendant] guilty or not guilty based on the facts of the case as
interpreted by the jury”).
Judgment affirmed. All the Justices concur.
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