In the Supreme Court of Georgia



                                           Decided:    March 21, 2016


                  S15G1108. THORNTON v. THE STATE.


      BENHAM, Justice.

      Appellant Patti Thornton “was charged with murder, conspiracy to commit

murder, making false statements, and tampering with evidence; her

co-defendant, Walter Booth, was charged with murder, conspiracy to commit

murder, and making false statements. A jury found appellant not guilty of

murder but guilty of the remaining charges, and the same jury acquitted Booth

of murder and conspiracy to commit murder but found him guilty of making

false statements.” Thornton v. State, 331 Ga. App. 191 (770 SE2d 279) (2015).

On appeal, the Court of Appeals affirmed appellant’s convictions, relying on

cases abolishing the inconsistent verdict rule. See United States v. Powell, 469

U.S. 57 (105 SCt 471, 83 LE2d 461) (1984); Milam v. State, 255 Ga. 560 (341

SE2d 216) (1986). We granted appellant’s petition for certiorari, posing the

following question to the parties: “Did the Court of Appeals err when it affirmed
appellant’s conviction for conspiracy to murder although her sole co-conspirator

was acquitted of conspiracy to murder by the jury before which they were

jointly tried?” Because we answer the question in the negative, the judgment is

affirmed.

      1. The facts are set forth in Thornton v. State, supra, 331 Ga. App. at 191-

194 as follows:

             Construed to support the jury's verdict, the evidence shows
      that sometime in the spring or summer of 2007, appellant, who was
      married to the victim, Richard (“Shell”) Thornton III, began having
      an illicit relationship with her co-worker [Walter] Booth, who was
      also married. Witnesses testified that Booth was protective and
      jealous of appellant at work, made statements that Shell mistreated
      appellant, and told co-workers that he would kill anyone who
      “mess[ed] with” appellant. On one occasion, appellant asked a
      co-worker to deliver a note to Booth that said “I love you,” and she
      sent Booth numerous e-mails throughout the summer and into the
      winter of 2007, expressing her love for Booth and her desire to be
      with him. Appellant also frequently wrote of her hatred for her
      husband, his mistreatment of her, and her desperate desire to have
      him “gone for good” from her life, primarily so that she could spend
      more time with Booth. She regularly entreated Booth to help her
      “out [of] this hell-hole,” said she could not take it anymore and
      wanted it over with, and in November 2007, reminded Booth that
      he “promised it would be done before Thanksgiving.”
             Several weeks later, on the morning of December 14, 2007,
      a sheriff's deputy who had been summoned to the house by
      appellant found Shell dead in the bedroom he shared with appellant.
      Georgia Bureau of Investigation (“GBI”) agents were primarily
      responsible for conducting the investigation into the murder, and

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appellant and other family members were interviewed on the day of
the murder and on several subsequent occasions. Appellant told
investigators that her daughter Kristin Eunice called her early that
morning and asked appellant to bring Eunice her driver's license at
work. Appellant said she woke her two teenage sons, Cole Richard
Shelley Thornton (“Cole”) and Seth Eunice (“Seth”), so that they
could get ready for school and that she also spoke to Shell who
asked her to make a bank deposit while she was out. Appellant told
investigators she took the money to make the deposit and then left
the house to take Eunice her driver's license, make the bank deposit,
and run some other errands. Appellant said she then stopped at her
mother's house, which was located nearby.
       Appellant told investigators that she returned home and that
when she walked in the door, she immediately noticed a bowl of
change had been knocked over and that several guns were lying on
the floor. She told police that she started yelling for Shell, but then
she noticed that their bedroom door was open, which she said had
been closed when she left that morning. Appellant said she became
frightened someone was in the house, so she left and went back to
her mother's house. She told her mother to call police, but then
decided to drive to the home of a sheriff's deputy who lived nearby
because she thought he would get to her house faster. The deputy
returned with her to the house, where he found Shell lying in the
bedroom with several gunshot wounds to the head, at least one of
which could have been fatal by itself.
       Seth and Cole also testified about the events the morning of
December 14, 2007. Cole testified that his mother woke him up
early and told him that she needed to take Eunice's license to her at
work, so he got up and showered and then woke up his brother. Seth
and Cole testified they left the house between 7:10 and 7:30 that
morning and exited through a door in the carport, which was
typically kept unlocked and which they did not lock that morning.
They said that when they left, their parents' bedroom door was
closed, and they did not see or speak to Shell, whom they assumed
was still sleeping. Seth and Cole said that everything appeared to be

                                  3
in its usual location when they left, including the guns and the
change container.
       Seth and Cole testified that they encountered their grandfather
Julian “Dwayne” Thornton about 200 to 300 yards from the house
and that they briefly talked to him and then left to go to school.
Dwayne testified that after talking to the boys, he took some pipe
off a trailer, which he said took about 15 to 30 minutes to
accomplish.
       Dwayne further testified that after he finished his project, he
drove to appellant's house to talk to her. He said he knocked on the
door but no one answered, so he pushed the door open and went
inside. He testified that he noticed a pile of change on the floor and
guns lying on a quilt and that the bedroom door was open, but he
could not see if anyone was in the bed, which he said appeared
messy. Dwayne said he called out several times but did not get an
answer, so he closed the door and left the house. Dwayne also
testified that he did not hear any gunshots while he was working in
the area, but said that he doubted he would have heard them in any
event.
       A GBI crime scene specialist testified that there were no signs
of forced entry into the home and that with the exception of the
carport door, all the doors and windows were locked. Investigators
found a computer, which had the monitor still turned on, in the back
of Shell's truck while they were searching the premises the morning
of the crime. The computer was analyzed and appellant's e-mails to
Booth were discovered. Appellant was interviewed again and
admitted that she and Booth e-mailed each other, but she said they
only sent each other jokes. She also denied that Booth and she had
a romantic relationship.
       Booth was also interviewed, and he also denied having a
romantic relationship with appellant and denied being at her house
on December 14, 2007. He told officers that he was supposed to go
to work that day but he decided not to go. Instead, he said he
stopped by a convenience store to buy coffee and then went to
another store and played video poker.

                                  4
            However, Booth's explanation of his whereabouts did not
      check out, and police also discovered that he and appellant had
      made numerous telephone calls to each other the morning of Shell's
      death. Booth told police that he had called appellant to see if she
      was going to work that day, but could not explain why there were
      so many calls between them. Booth also told the investigators that
      he never talked to appellant on the phone unless it was about work
      and that he had never communicated with her by computer over the
      Internet.
            Investigators also learned that a neighbor saw a big truck with
      “dual” wheels drive slowly down the road toward appellant's house
      in the early morning hours on the day of the murder. Another
      neighbor told investigators that he had driven by the house that
      morning and that he had noticed fresh tire tracks from a big truck in
      the area. Several of Booth's co-workers also testified that they had
      seen Booth with a handgun in the months preceding the crime, and
      one witness testified that a photograph of a gun police showed him
      looked similar to the one Booth had in his possession two to three
      weeks before Shell was killed.
            Booth's house was searched during the course of the
      investigation, and police seized two bottles of Trazodone, which is
      a prescription anti-depressant that also is sometimes used as a sleep
      aid, one of which was found in Booth's bedroom. Shell's blood was
      tested for a variety of substances, and one of those tests revealed
      that Shell had a therapeutic amount of Trazodone in his blood at the
      time of his death. Shell's father testified that appellant told him that
      Shell had taken one of his mother's sleeping pills the night before
      he was killed, but he said he could not identify the name of the
      sleeping pill that Shell supposedly took that night, and Shell's
      physician testified that he had never prescribed Trazodone to Shell.


      2. Relying on Smith v. State, 250 Ga. 264 (297 SE2d 273) (1982),

appellant contends that her conviction for conspiracy cannot stand because her

                                         5
co-conspirator was acquitted by the same jury and same presentation of

evidence. Citing only to secondary sources, this Court stated as dicta in Smith

v. State,1 that

       [i]n a joint trial of co-conspirators, a failure of proof as to one
       conspirator would amount to a failure of proof as to both, the
       evidence presented being identical. Co-conspirators, alleged to be
       the only two parties to the conspiracy, may not receive different
       verdicts when they are tried together. In such a situation, the
       verdicts are inconsistent because they reach different results
       regarding the existence of a conspiracy between these two parties
       based on exactly the same evidence.

Prior to 1986, Georgia adhered to the inconsistent verdict rule which did not

allow such verdicts to stand in criminal cases. At first glance, Smith v. State

might seem like precedent supportive of appellant’s position. However, four

years after we issued the opinion in Smith v. State, this Court unequivocally

abolished the inconsistent verdict rule in Milam v. State, supra, 255 Ga. at 562.

See also Tepanca v. State, 297 Ga. 47 (3) (771 SE2d 879) (2015). We did this

to make Georgia law consistent with the United States Supreme Court’s decision



       1
         Smith v. State is distinguishable from the case at bar because the case involved co-
conspirators who were tried separately in front of different juries. In that situation, this Court held
that the conviction of one co-conspirator was not invalidated by the acquittal of the other co-
conspirator. See also Hubbard v. State, 274 Ga. App. 639 (618 SE2d 690) (2005) (case involving
co-conspirators who were tried separately).

                                                  6
in United States v. Powell, 469 U.S. 57 (105 SCt 471, 83 LE2d 461) (1984). In

United States v. Powell, the defendant was acquitted of conspiracy to distribute

cocaine, but was convicted of some of the overt acts that facilitated the

conspiracy. The Powell court concluded the inconsistency of the jury’s verdicts

did not provide a basis to reverse the defendant’s convictions. In reaching this

conclusion, the court recognized that a jury has an “unreviewable power” to

render verdicts, including inconsistent verdicts, for “impermissible reasons.”

(Internal quotations omitted.) 469 U.S. at 63. Those reasons may include a

mistake, compromise, or lenity. Id. at 65.

      [W]here truly inconsistent verdicts have been reached, the most that
      can be said ... is that the verdict shows that either in the acquittal or
      the conviction the jury did not speak their real conclusions, but that
      does not show that they were not convinced of the defendant's guilt.

(Punctuation and citation omitted.) Id. at 64-65. Allowing a defendant to

challenge inconsistent verdicts would be prone to speculation and would require

courts to make impermissible inquiries into the jury’s deliberation process. Id.

at 66. The Powell court also reasoned that, in spite of its rejection of the

inconsistent verdict rule, the defendant would still be protected from “juror




                                         7
irrationality” through the appellate review of the sufficiency of the evidence.

Id. at 67.

       Since Milam, this Court has consistently echoed the rationales set forth in

Powell, that it is not for the courts to inquire into the jury’s deliberations “for

any inconsistency between guilty and not guilty verdicts.” Turner v. State, 283

Ga. 17 (2) (655 SE2d 589) (2008).2 See also Dugger v. State, 297 Ga. 120 (4)

(772 SE2d 695) (2015); Guajardo v. State, 290 Ga. 172 (2) (718 SE2d 292)

(2011); King v. Waters, 278 Ga. 122 (1) (598 SE2d 476) (2004); Robles v.

State, 277 Ga. 415 (1) (589 SE2d 566) (2003). As such, we have refused to

apply the inconsistent verdict rule not only in cases where a single defendant

receives inconsistent verdicts as to two or more charges (see, e.g., Coleman v.

State, 286 Ga. 291 (4) (687 SE2d 427) (2009)), but also in cases where co-

defendants, who are tried together, receive inconsistent verdicts as to each other.

See Lucas v. State, 264 Ga. 840 (452 SE2d 110) (1995); Parker v. Mooneyham,

256 Ga. 334 (349 SE2d 182) (1986), overruled on other grounds by State v.

Freeman, 264 Ga. 276 (444 SE2d 80) (1994). There is only one very narrow

       2
        The Georgia Court of Appeals has also followed Milam. See, e.g., Muldrow v. State, 322
Ga. App. 190 (1) (744 SE2d 413) (2013); Jones v. State, 318 Ga. App. 105 (1) (733 SE2d 407)
(2012); Kimble v. State, 236 Ga. App. 391 (1) (512 SE2d 306) (1999).

                                              8
exception to the rule against reversing inconsistent verdicts,3 but that exception

is not raised or indicated here.

       The instant case is one of first impression only inasmuch as it concerns

inconsistent conspiracy verdicts between jointly-tried co-conspirators and as it

concerns the validity of the dicta in Smith v. State, supra. Now having

considered the matter, we see no reason why Milam and its progeny would not

be applicable to this case. Here, the jury convicted appellant of conspiracy to

murder and acquitted her co-conspirator of same, but also found her co-

conspirator guilty of the lesser crimes of making false statements. Given this

outcome, it is plausible that the jury’s decision constituted a mistake,

compromise or lenity, none of which warrant intruding into its deliberations.

This approach is consistent with federal cases which have followed Powell by

declining to reverse the conspiracy conviction of a co-conspirator when the

other co-conspirator has been acquitted by the same jury and under the same

evidence. See United States v. Andrews, 850 F2d 1557, 1561 (11th Cir. 1988)

(“Consistent verdicts are unrequired in joint trials for conspiracy: where all but

       3
         See Guajardo, supra, 290 Ga. at 174 (“[R]eversal of an inconsistent verdict may occur in the
rare instance where, instead of being left to speculate as to the jury’s deliberations, the appellate
record makes transparent the jury’s rationale.”)

                                                 9
one of the charged conspirators are acquitted, the verdict against the one can

stand.”). See also United States v. Collins, 412 F3d 515 (III) (4th Cir. 2005)

(refusing to overturn a conspiracy conviction merely because a co-conspirator

was acquitted by the same jury); United States v. Crayton, 357 F3d 560 (1) (A)

(6th Cir. 2004) (Powell applies to cases concerning inconsistent verdicts

amongst co-conspirators); United States v. Acosta, 17 F3d 538 (II) (B) (2nd Cir.

1994) (“In light of Powell, one defendant's conspiracy conviction does not

become infirm by reason of jury verdicts of not guilty against all of his alleged

coconspirators.”); United States v. Lopez, 944 F2d 33, 40 (1st Cir. 1991) (“[A]s

a simple matter of logic, the government's voluntary dismissal of a conspiracy

charge against a defendant's only alleged coconspirator does not preclude proof

beyond a reasonable doubt, at defendant's trial, that the defendant conspired

with that same alleged coconspirator.”); United States v. Valles–Valencia, 823

F2d 381, 382 (9th Cir. 1987) (“the acquittal of all conspirators but one does not

necessarily indicate that the jury found no agreement to act”). Accordingly, the

dicta in Smith v. State is disapproved inasmuch as it has been abrogated by

Milam and its progeny.



                                       10
      The evidence was otherwise sufficient to convict appellant of the crimes

for which she was charged. Jackson v. Virginia, 443 U.S. 307 (99 SCt 2781, 61

LE2d 560) (1979). Therefore, the Court of Appeals did not err when it affirmed

appellant’s conviction for conspiracy to murder.

      Judgment affirmed. All the Justices concur.




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