GRIMES v. The STATE.
-- September 09, 2013
Jennifer Adair Trieshmann, Carrollton, for Appellant.Christopher Michael Quinn, Senior A.D.A., Paul L. Howard Jr., D.A., Paige Reese Whitaker, Samuel S. Olens, A.G., Paula Khristian Smith, Senior A.A.G., Patricia B. Attaway Burton, Senior A.A.G, for Appellee.
Gregory Grimes was tried by a Fulton County jury and convicted of the murder of Bobby Greer. He appeals, contending that the evidence is legally insufficient to sustain his conviction, that he should have been convicted instead of voluntary manslaughter, and that the trial court erred by sentencing him as a recidivist. We find no merit in these claims of error, and we affirm.1
1. We begin with the legal sufficiency of the evidence. Viewed in the light most favorable to the verdict, the evidence shows that Grimes fatally stabbed Greer on the morning of January 26, 2003. Earlier that morning, Grimes had visited the home of Terrance Barrow, where Grimes had obtained a knife, changed into dark clothing, and said that he was looking to rob someone. Greer later was seen entering a nearby “drug house,” and Grimes was seen walking toward the same “drug house,” after telling Barrow's girlfriend to keep quiet. Barrow's girlfriend and two individuals walking through the neighborhood subsequently saw Grimes attack Greer.2 According to one of the walkers, Grimes threw a bottle at Greer and, with a silver blade in his hand, told Greer that “you got my money.” That walker heard Greer deny that he had or owed any money, and the walker then saw Grimes strike Greer in the chest. The other walker saw the attack and observed Greer try to deflect the blow. Barrow's girlfriend also saw Greer attempt to fight back, and she observed that Grimes had a shiny object in his hand. Greer eventually walked away from the scene of the fight, but he was later found lying in the street with a fatal stab wound to his chest.
That same morning, investigators found the knife that Grimes had obtained from Barrow's house, and on it, they found Greer's blood. The knife was found stuck in the porch railing of a house next to Barrow's, and a resident of that house explained that he earlier had overheard a conversation between his roommate and Grimes. In the course of that conversation, Grimes said that he had “got[ten] into it” with someone who “was shooting at him,” that Grimes “f* * *ed him up,” and that he “should be resting in peace by now.” Although gunshot residue was found on Greer's hands, no witness saw Greer with a gun or heard any gunshots, and no weapons were found on or near his body.
Grimes argues on appeal that, because there was some evidence that Greer had a weapon and shot at Grimes before the stabbing—namely, Grimes's own statement and the gunshot residue found on Greer's hands—the State failed to prove beyond a reasonable doubt that he was not justified in stabbing Greer. But the evidence on those points was conflicting. There was evidence that Greer, in fact, had no weapon and did not shoot at Grimes. As we have explained many times before, conflicts in the evidence, questions about the credibility of witnesses, and questions about the existence of justification are for the jury to resolve. See Hoffler v. State, 292 Ga. 537, 539(1), 739 S.E.2d 362 (2013). See also Shaw v. State, 292 Ga. 871, 872(1), 742 S.E.2d 707 (2013). In this case, the jury was “free to accept the evidence that the [stabbing] was not done in self-defense and to reject any evidence ․ in support of a justification defense.” McNeil v. State, 284 Ga. 586, 588(1), 669 S.E.2d 111 (2008) (citations and punctuation omitted). Viewing the evidence in the light most favorable to the verdict, as we must, we conclude that the evidence was sufficient to authorize a rational trier of fact to find beyond a reasonable doubt that Grimes was guilty of the crime of which he was convicted, namely, felony murder in the commission of an attempted armed robbery. Jackson v. Virginia, 443 U.S. 307, 319(III)(B), 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979). See also Blake v. State, 292 Ga. 516, 517(1), 739 S.E.2d 319 (2013); Hill v. State, 291 Ga. 160, 161(1), 728 S.E.2d 225 (2012); Willingham v. State, 268 Ga. 64, 64(1), 485 S.E.2d 735 (1997).
2. We next consider whether the trial court properly entered a judgment of conviction for felony murder, rather than for voluntary manslaughter. In its verdict, the jury found Grimes guilty of both crimes, and that verdict, Grimes contends, means that the “modified merger rule” of Edge v. State, 261 Ga. 865, 414 S.E.2d 463 (1992), applies and that his conviction for felony murder cannot, therefore, stand. See 261 Ga. at 868(2) (“Because the jury in this case convicted the defendant of both voluntary manslaughter and felony murder, it must be assumed the jurors found the underlying aggravated assault to be the product of provocation and passion. Thus, only the voluntary manslaughter conviction may stand.”). See also Sanders v. State, 281 Ga. 36, 37(1), 635 S.E.2d 772 (2006) (under modified merger rule, a verdict of guilt as to voluntary manslaughter precludes a conviction for felony murder “if the underlying felony is directed against the homicide victim and is not independent, but rather is an integral part, of the killing” (citations omitted)). But as we explained in Edge, the “problem” that the modified merger rule is intended to address “does not exist if the underlying felony is independent of the killing itself, such as burglary, robbery, or even an assault that is directed against someone other than the homicide victim.” 261 Ga. at 867, n. 3, 414 S.E.2d 463.
Consequently, we generally do not apply the Edge modified merger rule “to any felony murder conviction in which the underlying felony was not the aggravated assault of the murder victim.” Sims v. State, 265 Ga. 35, 36(3), 453 S.E.2d 33 (1995) (citations omitted). See also Lawson v. State, 280 Ga. 881, 883(3), 635 S.E.2d 134 (2006); Philmore v. State, 263 Ga. 67, 70(5), 428 S.E.2d 329 (1993). Cf. Sanders, 281 Ga. at 37–38(1), 635 S.E.2d 772 (all three underlying felonies—aggravated assault, aggravated battery, and arson in the first degree—involved the same act of setting the victim afire, caused the death of the victim, and were, therefore, integral to the killing). Indeed, in several cases decided since Edge, we have “reiterated that the modified merger rule does not apply when the underlying felony, such as armed robbery, is independent of the killing itself.” Smith v. State, 272 Ga. 874, 879–880(6)(a), 536 S.E.2d 514 (2000) (footnote omitted). Here, the indictment charged Grimes with attempted armed robbery by “brandishing a knife and demanding money,” and the evidence supports his conviction for felony murder in the commission of that attempted armed robbery. Because the underlying felony—that attempted armed robbery—was independent of the killing itself, the modified merger rule of Edge does not apply, and Grimes was properly convicted of felony murder. See id. See also Matthews v. State, 268 Ga. 798, 804(7)(b), 493 S.E.2d 136 (1997).
3. Last, we consider whether Grimes was erroneously sentenced as a recidivist ineligible for parole pursuant to OCGA § 17–10–7(c),3 which—both at the time Grimes killed Greer and at the time Grimes was tried and sentenced for that killing—provided that
any person who, after having been convicted under the laws of this state for three felonies or having been convicted under the laws of any other state or of the United States of three crimes which if committed within this state would be felonies, commits a felony within this state other than a capital felony must, upon conviction for such fourth offense or for subsequent offenses, serve the maximum time provided in the sentence of the judge based upon such conviction and shall not be eligible for parole until the maximum sentence has been served.
OCGA § 17–10–7(c) (2005). Grimes contends that the State failed to prove that he had been convicted previously of three felonies, noting that the prosecuting attorney stated in his place at sentencing that Grimes had three prior felony convictions, but that no certified copies of those convictions were put forward by the State. This contention is misplaced, however, because Grimes did not object to the statements of the prosecuting attorney or otherwise dispute that he had three prior felony convictions, and we have held before that the statements of a prosecuting attorney can prove prior convictions in the absence of an objection. Moret v. State, 246 Ga. 5, 5–6(3), 268 S.E.2d 635 (1980). See also Jones v. State, 308 Ga.App. 99, 101–102(2), 706 S.E.2d 593 (2011).
And in any event, Grimes is not today under any sentence for which he is parole ineligible pursuant to OCGA § 17–10–7(c). When Grimes was sentenced initially, the trial court pronounced a sentence of imprisonment for life for felony murder, and it pronounced a concurrent sentence of imprisonment for twenty years for voluntary manslaughter. As to the latter sentence—but not the former—the trial court pronounced a recidivist sentence and said that Grimes would, therefore, “end up doing every day of that.” But the trial court subsequently vacated the conviction and sentence for voluntary manslaughter, see note 1 supra, recognizing correctly that the voluntary manslaughter should have merged into the felony murder. The only sentence that survives today is the sentence for murder, and the trial court never pronounced a sentence pursuant to OCGA § 17–10–7(c) for that crime,4 nor does the written sentencing order reflect that Grimes is parole ineligible. This claim of error is, therefore, without merit.
All the Justices concur.