295 Ga. 204
FINAL COPY

                       S14A0302. FRANKLIN v. THE STATE.


       BENHAM, Justice.

       On July 5, 1998, appellant Terry Franklin and Maurice Coleman severely

beat the victim Kenneth Briddell who died from his injuries three months later.1

       1. Appellant alleges the evidence was insufficient to convict him of

felony murder. At trial, Coleman and two other witnesses testified that Coleman

hit the victim with a gun and appellant stomped and kicked the victim in the

head and mouth as the victim was prone on the ground. The evidence showed

that, at the time of the beating, the victim owed appellant $5 in drug money.

The victim was treated in the hospital for his injuries, but was in a chronic

vegetative state such that he had to be surgically fitted with a tracheal tube for

breathing and another tube for feeding. The treating physician stated that the


       1
          On July 30, 2004, a Fulton County grand jury indicted appellant and Maurice Coleman on
charges of felony murder (aggravated assault) and aggravated assault. Appellant was tried from
August 12-17, 2004, and the jury found him guilty on both counts. The aggravated assault merged
into the felony murder conviction for which appellant was sentenced to life in prison on August 26,
2004. Appellant, through trial counsel, initially moved for a new trial on September 7, 2004. After
filing numerous amendments to the motion for new trial, being assigned several different appellate
attorneys, and going through various procedural hurdles, the trial court held a hearing on the motion
for new trial on August 10, 2011, and the trial court denied the motion on September 28, 2012.
Appellant timely filed his notice of appeal. The case was docketed to the January 2014 term of this
Court for a decision to be made on the briefs.
victim was awake, but not alert or oriented, and that his chronic vegetative state

would not improve. After three months in the hospital, the victim was set to be

moved to a permanent care facility. However, on October 10, 1998, the victim’s

tracheal tube became dislodged such that he could not breathe and he went into

respiratory arrest and then his heart stopped beating. Although life-saving

measures were attempted, the victim died that day. The victim’s treating

physician listed the victim’s cause of death as respiratory arrest and asystole.

The county medical examiner later reviewed the victim’s medical records and

amended the death certificate to indicate that the cause of death was delayed

complications of blunt head trauma. In explanation of his reasons for amending

the death certificate issued by appellant’s treating physician, the county medical

examiner testified as follows:

      Respiratory arrest means a person stops breathing. That’s not a
      cause of death. That describes death. The cause of the individual’s
      death is head trauma, and it’s . . . the complications of that head
      trauma. It didn’t result in his death immediately, but the
      complications related to that head trauma [are] what led to the
      respiratory arrest. . . . [Asystole] means the heart no longer
      generates any electrical activity. It’s not really the cause of death,
      it is a description of the death. . . .

On June 5, 1999, approximately eight months after the victim died, authorities

arrested appellant for murder. While riding in the car on the way to be
                                        2
fingerprinted and booked, appellant told the arresting officer that he had “beat

up dude” but that he had not hit the victim with a gun.

      (a) Appellant does not dispute that he beat the victim. He contends,

however, that his actions did not cause the victim’s death because the treating

physician listed the cause of death as respiratory arrest and asystole, conditions

which were immediately triggered by the tracheal tube becoming dislodged at

the hospital. We disagree.

      When construing Georgia's felony murder statute, this Court has
      held that causing the death of another human being means
      proximate causation. State v. Jackson, 287 Ga. 646 (2) (697 SE2d
      757) (2010). “Proximate causation imposes liability for the
      reasonably foreseeable results of criminal . . . conduct if there is no
      sufficient, independent, and unforeseen intervening cause.” Id. at
      654. We consider the elements of the felony not in the abstract, but
      in the actual circumstances in which the felony was committed.
      Davis v. State, 290 Ga. 757, 760 (4) (725 SE2d 280) (2012).

Currier v. State, 294 Ga. 392, 394 (1) (754 SE2d 17) (2014). Here, the

dislodgement of the tracheal tube was not an unforeseen intervening cause of the

victim’s death because the beating placed the victim in a chronic vegetative state

necessitating the placement of the tracheal tube. As such, the dislodging of the

tracheal tube was only secondary to the beating which was the proximate cause

of death. See Skaggs v. State, 278 Ga. 19 (1) (596 SE2d 159) (2004) (kicking


                                        3
the victim with a steel-toed boot was proximate cause of the victim’s death days

later; the victim’s fall head-first onto concrete after being kicked was not

reasonably unforeseeable); Green v. State, 266 Ga. 758 (2) (b) (470 SE2d 884)

(1996) (defendant’s stabbing his wife was the proximate cause of her death from

a stress ulcer); Dupree v. State, 247 Ga. 470 (1) (277 SE2d 18) (1981)

(defendant’s actions in robbing the victim at gunpoint and hitting the victim

were the proximate cause of the victim’s death by cardiac arrest). The jury was

authorized to reject any alternate theory of causation and conclude that

appellant’s actions in beating the victim caused the victim’s death. Neal v.

State, 290 Ga. 563 (1) (722 SE2d 765) (2012). See also Bryant v. State, 270 Ga.

266 (1) (a) (507 SE2d 451) (1998) (evidence sufficient to convict on charge of

felony murder where gunshot to the head caused victim to be immobilized for

a significant amount of time during treatment and recovery; said immobilization

put the victim at greater risk of suffering the pulmonary embolism that caused

her death). Accordingly, the evidence was sufficient for a rational jury to find

appellant guilty beyond a reasonable doubt of the charge for which he was

convicted. Jackson v. Virginia, 443 U. S. 307, 319 (99 SCt 2781, 61 LE2d 560)

(1979).


                                       4
      (b) Appellant alleges that the medical examiner was not authorized to

investigate the victim’s death and/or amend the death certificate under OCGA

§§ 31-10-6 and 45-16-24. Our review of the record shows appellant failed to

make any objection at trial to the evidence regarding the medical examiner’s

investigation of the victim’s death or to the amended death certificate.

Accordingly, this issue has not been preserved for appellate review. See

Matthews v. State, 294 Ga. 50 (2) (751 SE2d 78) (2013); Hall v. State, 292 Ga.

701 (2) (743 SE2d 6) (2013). See also Crawford v. State, 267 Ga. 543 (6) (480

SE2d 573) (1997) (defendant could not raise grounds on appeal that were not

raised below challenging the admission of the deceased’s death certificate).

      2. Appellant alleges he is entitled to a new trial because the trial court

failed to remove Juror 13 for cause. We disagree. An appellate court pays

deference to the trial court's resolution of any equivocations or conflicts in a

prospective juror's responses. Lewis v. State, 279 Ga. 756 (3) (a) (620 SE2d

778) (2005). The determination of a potential juror's impartiality is within the

trial court's sound discretion, and the trial court will only be reversed on such

matter upon finding a manifest abuse of discretion. See Kim v. Walls, 275 Ga.

177, 178 (563 SE2d 847) (2002). See also Poole v. State, 291 Ga. 848 (3) (734

                                       5
SE2d 1) (2012). Here, Juror 13 raised his hand when the trial court asked, on

behalf of the prosecution and the defense, the following question: “Do any of

you believe that it is the job of the defense attorneys to trick you?” Appellant

did not ask any follow-up questions regarding Juror 13's response to the

question, and the only discussion regarding Juror 13's potential service was

whether he had a valid hardship that would preclude his service. When defense

counsel mentioned that she might want to remove Juror 13 for cause, the trial

court noted she had failed to ask any follow-up questions during the individual

voir dire, and he allowed Juror 13 to remain in the jury pool. Appellant then

used one of his peremptory challenges to strike Juror 13. In this case, there has

been no showing that the trial court manifestly abused its discretion and so this

alleged enumeration of error cannot be sustained. Id.

      3. Appellant alleges the facts of the case did not conform to the jury

charges given by the trial court so as to authorize the jury to find him guilty of

felony murder.     The trial court charged in pertinent part regarding the

connection between the felony and the homicide:

           Felony murder during the commission of a felony. If you find
      and believe beyond a reasonable doubt that the defendant
      committed the homicide alleged in this indictment at the time the
      defendant was engaged in the commission of the felony of
                                        6
      aggravated assault, then you would be authorized to find the
      defendant guilty of felony murder, whether the homicide was
      intended or not.
             In order for a homicide to have been done in the commission
      of this particular felony, there must be some connection between the
      felony and the homicide. The homicide must have been done in
      carrying out the unlawful act, not collateral to it. It is not enough
      that the homicide occurred soon or presently after the felony was
      attempted or committed.
             There must be such legal relationship between the homicide
      and the felony so as to cause you to find the homicide occurred
      before the felony was at an end or before any attempt to avoid
      conviction or arrest for the felony. The felony must have a logical
      relationship to the homicide, be at least concurrent with it in part
      and be a part of it in an actual and material sense.
             A homicide is committed in the carrying out of a felony . . .
      when executed by the accused while engag[ed] in the performance
      of any act required for the full execution of the felony.

After the jury retired to the jury room, appellant complained that the judge

instructed that the felony had to have a “logical relationship” to the homicide

rather than a “legal relationship” to the homicide. Accordingly, the trial court

gave the jury the following recharge:

            If you find and believe beyond a reasonable doubt that the
      defendant committed the homicide alleged in the bill of indictment
      at the time the defendant was engaged in the commission of the
      felony of aggravated assault, then you would be authorized to find
      the defendant guilty of felony murder, whether the homicide was
      intended or not.
            In order for the homicide to have been done in the
      commission of this particular felony, there must be some connection
      between the felony and the homicide. The homicide must have
                                        7
      been done in carrying out the unlawful act, not collateral to it. It is
      not enough that the homicide occurred soon or presently after the
      felony was attempted or committed. There must be such a legal
      relationship between the homicide and the felony to cause you to
      find that the homicide occurred before the felony was at an end or
      before any attempt to avoid conviction or arrest for the felony. The
      felony must have a legal relationship to the homicide, be at least
      concurrent with it in part and be part of it in an actual and material
      sense.
              A homicide is committed in the carrying out of a felony when
      it is committed by the accused while engaged in the performance of
      any act required for the full execution of the felony.

Appellant voiced no further objection to the charges or the recharge, reserving

any other objections to the jury charges for a later time.

      In his brief, appellant argues that under the trial court’s recharge, his

conviction cannot stand because there was no showing that the homicide

occurred before or during the “full execution” of the aggravated assault. This

argument has no merit. On appeal, we read the jury charges as a whole to

determine the presence of any error. Sapp v. State, 290 Ga. 247, 251 (2) (719

SE2d 434) (2011). In this case, the jury charges, including the initial charge and

the recharge, are correct statements of the law. See id. (where trial court gave

same pattern charge regarding the felony’s relationship to the homicide as was

given in the case at bar); Suggested Pattern Jury Instructions, Vol. II: Criminal

Cases, § 2.10.30 (4th ed. 2007, updated through July 2013). Contrary to
                                        8
appellant’s argument, the jury was not required to find that the homicide

occurred prior to or during the completion of the felony aggravated assault.

Both the original charge and the recharge stated that the homicide and felony

needed only to be concurrent “in part” and that the homicide occur before any

attempt by appellant to avoid conviction or arrest. The evidence shows that the

head trauma, complications from which led to the victim’s death, was received

during appellant’s aggravated assault of the victim by beating and kicking the

victim in the head and that the death of the victim occurred prior to any attempt

by appellant to avoid conviction or arrest. Therefore, the jury charges and the

facts of the case were in conformity and, as discussed in Division 1, supra, the

evidence was sufficient for appellant to be convicted of felony murder.

      Judgment affirmed. All the Justices concur.




                            Decided May 19, 2014.

      Murder. Fulton Superior Court. Before Judge Baxter.


                                       9
      Dell Jackson, for appellant.

      Paul L. Howard, Jr., District Attorney, Paige Reese Whitaker, Arthur C.

Walton, Assistant District Attorneys, Samuel S. Olens, Attorney General,

Patricia B. Attaway Burton, Deputy Attorney General, Paula K. Smith, Senior

Assistant Attorney General, Michael A. Oldham, Assistant Attorney General,

for appellee.




                                     10
