In the Supreme Court of Georgia



                                          Decided: April 4, 2016


                   S15G1047. CARTER v. THE STATE.


      MELTON, Justice.

      Chernard Carter and his two co-defendants were involved in a gunfight at

an apartment complex, and a stray bullet killed Lynette Reese. Carter was

charged, in relevant part, with malice murder and three counts of felony murder

predicated on aggravated assault. At trial, the jury was also instructed on

provocation and voluntary manslaughter as a lesser included offense of both

malice murder and felony murder. The jury found Carter not guilty of malice

murder and not guilty of voluntary manslaughter as a lesser included offense of

malice murder. The jury also found Carter not guilty of each count of felony

murder (i.e. the two counts relating to Carter shooting at each of his co-

defendants and causing Reese’s death, and one charge relating to Carter

committing an aggravated assault by shooting Reese, which led to her death).

However, it found him guilty of voluntary manslaughter as a lesser included
offense of each count of felony murder. Thus, Carter had been found guilty of

voluntary manslaughter as a lesser included offense of the alleged felony murder

of Reese, but had also been found not guilty of voluntary manslaughter as a

lesser included offense of the alleged malice murder of Reese.

      On appeal, Carter argued that the verdict was an impermissible “repugnant

verdict” because he was found “both not guilty and guilty” of the same crime of

voluntary manslaughter with respect to the same victim, Reese. See Wiley v.

State, 124 Ga. App. 654 (185 SE2d 582) (1971) (where defendant was found

both guilty and not guilty of identical charges in an accusation, the defendant’s

motion in arrest of judgment to challenge the guilty verdict should have been

granted, because “[v]erdicts which are repugnant and self-contradictory cannot

be allowed to stand”) (citation omitted). The Court of Appeals upheld Carter’s

voluntary manslaughter conviction, and we granted Carter’s petition for a writ

of certiorari to determine whether the Court of Appeals erred in this ruling. As

explained more fully below, although we disagree with some of the Court of

Appeals’ reasoning, we conclude that the Court of Appeals ultimately reached

the correct result in upholding Carter’s conviction for voluntary manslaughter.

We therefore affirm.

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      As an initial matter, it is worth noting that, although the Court of Appeals

acknowledged the potential for repugnant verdicts over forty years ago in Wiley,

supra, this Court has never adopted the reasoning in Wiley. Furthermore, this

Court has not analyzed the concept of repugnant verdicts in relation to this

Court’s abolition of the “inconsistent verdict” rule fifteen years after the Court

of Appeals decided Wiley. See Milam v. State, 255 Ga. 560 (2) (341 SE2d 216)

(1986). Much like a repugnant verdict, an inconsistent verdict involves an

alleged inconsistency between guilty and not guilty verdicts against a defendant

or defendants that cannot be logically reconciled. See Turner v. State, 283 Ga.

17 (2) (655 SE2d 589) (2008); Lucas v. State, 264 Ga. 840 (452 SE2d 110)

(1995). However, because the inconsistent verdict rule has been abolished, “a

defendant cannot attack as inconsistent a jury verdict of guilty on one count and

not guilty on a different count” as a legitimate means of having his or her

conviction reversed. (Footnote omitted.) Dumas v. State, 266 Ga. 797, 799 (1)

(471 SE2d 508) (1996). This is the case because

      it is not generally within the court's power to make inquiries into the
      jury's deliberations, or to speculate about the reasons for any
      inconsistency between guilty and not guilty verdicts. . . . [A]ppellate
      courts “cannot know and should not speculate why a jury acquitted
      on … [one] offense and convicted on … [another] offense. The

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      reason could be an error by the jury in its consideration or it could
      be mistake, compromise, or lenity. …” Stated another way, it is
      imprudent and unworkable … [to] allow criminal defendants to
      challenge inconsistent verdicts on the ground that in their case the
      verdict was not the product of lenity, but of some error that worked
      against them. Such an individualized assessment of the reason for
      the inconsistency would be based either on pure speculation, or
      would require inquiries into the jury's deliberations that the courts
      generally will not undertake. United States v. Powell, [469 U. S. 57,
      66 (105 SCt. 471, 83 LE2d 461 (1984)]; Smashum v. State, 261 Ga.
      248 (2) (403 SE2d 797) (1991).1

Turner, supra, 283 Ga. at 20 (2).

      Carter claims that the difference between repugnant verdicts and

inconsistent verdicts is the fact that inconsistent verdicts involve a finding of

guilt and an acquittal on entirely separate offenses, whereas repugnant verdicts

involve a finding of guilt and an acquittal on the same offense. However, under

the facts of this case, voluntary manslaughter as a lesser included offense of

malice murder is not the same offense as voluntary manslaughter as a lesser


      1
       There is an exception to the inconsistent verdict rule that would have no
application to the facts of the current case, if, in fact, we were to consider a
repugnant verdict to be merely a variation of an inconsistent verdict. “[W]hen
instead of being left to speculate about the unknown motivations of the jury the
appellate record makes transparent the jury's reasoning why it found the
defendant not guilty of one of the charges, “[t]here is … no speculation, and the
policy explained in Powell[, supra] and adopted in Milam, supra, … does not
apply. [Cit.]” Turner, supra, 283 Ga. at 20-21 (2).
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included offense of felony murder, and the two voluntary manslaughter verdicts

can be logically reconciled. They are merely two different offenses upon which

the jury was free to find Carter guilty or not guilty based on the facts of the case

as interpreted by the jury. Accordingly, there is no repugnant verdict, and we

need not decide the question whether the rule that we announced in Milam,

supra – which forbids a defendant from attacking as inconsistent a verdict of

guilty on one count and not guilty on a different count – is just as applicable in

repugnant verdict cases as it is in other inconsistent verdict cases.2

      Pursuant to OCGA § 16-5-2,

      [a] person commits the offense of voluntary manslaughter when he
      causes the death of another human being under circumstances
      which would otherwise be murder and if he acts solely as the result
      of a sudden, violent, and irresistible passion resulting from serious
      provocation sufficient to excite such passion in a reasonable person
      [and there was no] interval between the provocation and the killing
      sufficient for the voice of reason and humanity to be heard.


      2
        We also note that this case does not involve an impermissible “mutually
exclusive” verdict, “where a defendant is convicted of two crimes, where a
guilty verdict on one count logically excludes a finding of guilt on the other.”
(Emphasis supplied.) State v. Springer, 297 Ga. 376, 378 (774 SE2d 106)
(2015), quoting Powell, supra, 469 U.S. at 69 n.8. Again, here we are addressing
a verdict that involves a finding of guilty and not guilty with respect to
voluntary manslaughter, and not two findings of guilt that cannot logically co-
exist.
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(Emphasis supplied.) In this regard, a person commits the offense of malice

murder “when he unlawfully and with malice aforethought, either express or

implied, causes the death of another human being.” OCGA § 16-5-1 (a). Malice

aforethought requires an express or implied intent to kill. See OCGA § 16-5-1

(b). Thus, the “circumstances which would otherwise be [malice] murder” but

for the necessary provocation that would reduce the offense to voluntary

manslaughter would consist of a defendant acting with the intent to kill another

person. Accordingly, in order for a person to be found guilty of voluntary

manslaughter as a lesser included offense of malice murder, that person must act

with the intent to kill, but must also have taken his or her actions “as the result

of a sudden, violent, and irresistible passion resulting from serious provocation

sufficient to excite such passion in a reasonable person.” OCGA § 16-5-2.

      However, malice murder is not the only manner in which a defendant may

commit the crime of murder. There is also felony murder, which requires only

that a defendant, while “in the commission of a felony . . . cause[] the death of

another human being irrespective of malice.” (Emphasis supplied.) OCGA § 16-

5-1 (c). A defendant need not act with an intent to kill at the time that he or she


                                        6
took the actions that led to the victim’s death. Knight v. State, 271 Ga. 557, 559

(2) (521 SE2d 819) (1999) (“The presence or absence of malice is irrelevant to

commission of felony murder”). The defendant need only commit the underlying

felony that is integral to, and leads to, the victim’s death. See Wallace v. State,

294 Ga. 257 (2) (754 SE2d 5) (2013). Thus, unlike the crime of malice murder,

the necessary provocation that would mitigate the “circumstances which would

otherwise be [felony] murder” in order to reduce that offense to voluntary

manslaughter has nothing to do with a defendant’s purported intent to kill. In

this connection, to the extent that Walker v. State, 258 Ga. 443 (5) (370 SE2d

149) (1988) can be read to support the proposition that intent to kill is an

essential element of voluntary manslaughter as a lesser included offense of

felony murder, it is overruled.

      In short, a defendant must have an intent to kill in order for voluntary

manslaughter to serve as a potential lesser included offense of malice murder,

but need not have any intent to kill for voluntary manslaughter to mitigate the

circumstances that would otherwise constitute felony murder. Because of this

fundamental difference between felony murder and malice murder, voluntary

manslaughter as a lesser included offense of malice murder cannot be seen as the

                                         7
same crime as voluntary manslaughter as a lesser included offense of felony

murder. For this reason, the Court of Appeals correctly concluded that the jury’s

verdict in this case did not amount to a repugnant verdict in which Carter had

been found guilty and not guilty of the same offense.

      However, the Court of Appeals then went on to attempt to explain the

manner in which the jury may have reached its verdict, stating that

      [t]he jury could have determined that Carter fired at the
      co-defendants solely as the result of a sudden, violent, and
      irresistible passion resulting from the co-defendants’ provocative
      act of shooting at him, thus mitigating his offense and rendering
      him guilty of voluntary manslaughter as a lesser included offense
      of felony murder. Along those lines, the jury could also have
      logically found that Carter was not guilty of malice murder because
      he did not intend to kill the victim, and was not guilty of voluntary
      manslaughter as a lesser included offense of malice murder
      because the victim did not provoke him to act.

(Emphasis supplied.) Carter v. State, 331 Ga. App. 212, 219 (3) (770 SE2d 295)

(2015). The Court of Appeals’ reasoning is flawed. As explained more fully

above, the provocation that mitigates the crime of malice murder goes directly

to the defendant’s intent to kill. If there is no intent to kill, the defendant has not

engaged in an act “which would otherwise be [malice] murder” but for the

provocation to reduce the offense to voluntary manslaughter. Once it has been


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determined that the defendant had no intent to kill, there is no malice murder to

be mitigated by evidence of provocation, and the question of voluntary

manslaughter as a lesser included offense of malice murder could not even be

reached. In this regard, a victim’s alleged provocation of a defendant who acts

with no intent to kill would be irrelevant to any determination of that

defendant’s guilt on a charge of voluntary manslaughter as a lesser included

offense of malice murder. Accordingly, we disapprove that portion of the Court

of Appeals’ opinion which implies that a defendant could be found guilty of

voluntary manslaughter as a lesser included offense of malice murder where that

defendant has not acted with an intent to kill.

      Judgment affirmed. All the Justices concur.




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