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S11A1386. MORGAN v. THE STATE
State: Georgia
Court: Supreme Court
Docket No: S11A1386
Case Date: 03/19/2012
Preview:Final Copy 290 Ga. 788 S11A1386. MORGAN v. THE STATE. NAHMIAS, Justice. In August 1994, Appellant David Lee Morgan was convicted and sentenced for the 1993 felony murder of Valencia Wright. 1 After an

extraordinary 17-year delay in resolving Appellant's motion for new trial, his appeal has finally reached this Court. 2 We affirm.
The crimes occurred on February 2, 1993. In early 1994, Appellant was indicted in Fulton County for malice murder, and on August 9, 1994, Appellant was reindicted for malice murder, felony murder, and aggravated assault. On August 24, 1994, after a four-day trial, the jury acquitted Appellant of malice murder but convicted him of felony murder and aggravated assault. The aggravated assault verdict merged with the felony murder conviction, for which the trial court sentenced Appellant to life in prison. On August 31, 1994, Appellant filed a motion for new trial, which he amended with the assistance of new counsel on August 26, 2009, September 6, 2010, and Novem ber 15, 2010. On February 21, 2011, the trial court held a hearing, and on March 7, 2011, the motion was denied. Appellant filed a timely notice of appeal, and the case was docketed in this Court for the September 2011 term and submitted for decision on the briefs. The briefs offer no explanation for the inordinate post-conviction delay. The record shows that the motion for new trial was filed within a week after the trial ended in August 1994. In Novem ber 1997, Appellant wrote to the clerk of the trial court requesting all documents filed in the case for purposes of appeal. In March 1998, the clerk wrote back and enclosed a printout of Appellant's case activity and a copy of the indictment and sentence, but the letter said that Appellant would have to pay a fee to obtain copies of his motions and seek any warrants from the arresting agency. The record then contains nothing for the six-and-a-half years between March 1998 and October 2004, when Appellant's trial counsel wrote a letter to Appellant in response to a letter Appellant had sent to the State Bar's Consumer Assistance Program. Trial counsel told Appellant that the trial court had relieved him from further representation and appointed new appellate counsel, but the record contains nothing show ing a change of counsel. Indeed, trial counsel's letter also said, "I have not heard from you, or anyone else (family or lawyer), regarding this case since we left court following the trial," and it is clear from the trial transcript that, at the end of the trial, trial counsel had not been removed as Appellant's lawyer. In August 2007, at a status conference requested by the district attorney based on Appellant's numerous filings over the previous 18 months, the trial court said that it appeared that "somehow or other the ball got dropped as far as appointment [of
2 1

1.

The evidence at trial, viewed in the light most favorable to the

verdict, showed the following. On February 2, 1993, a police officer responding to a report of a stabbing saw Appellant walking very fast down the road in the officer's direction. Appellant was sweating and covered in blood. When the officer stopped his vehicle to assess the situation, Appellant blurted out, "I stabbed her and should be arrested." The officer placed Appellant in the patrol car and continued to the crime scene. Appellant continued talking about the stabbing on the way to and from the crime scene, describing the various places that he had stabbed the victim and explaining that he did it because she was leaving him to go back to her husband. Appellant said that he needed to go to jail for a long time. At the crime scene, the officer found the victim on her hands and knees, covered in blood. There was blood all over the walls. The victim exclaimed,
appellate counsel] was concerned" and the case "dropped through the cracks." It took another year, however, for the court to appoint Appellant's new counsel. The case then slowly got back on track, although it still took more than two years to resolve the motion for new trial. This sort of extraordinary post-conviction, pre-appeal delay "put[s] at risk the rights of defendants and crime victims and the validity of convictions obtained after a full trial." Shank v. State, 290 Ga. 844, 849 (__ SE2d __) (2012). "[I]t is the duty of all those involved in the criminal justice system, including trial courts and prosecutors as well as defense counsel and defendants, to ensure that the appropriate post-conviction motions are filed, litigated, and decided without unnecessary delay." Id. That duty unfortunately was not fulfilled in this case. That does not affect the outcome of this appeal, however, because Appellant has enumerated no error associated with the delay.

2

"David did it, look what he did to me," and she said to a neighbor, "why did David do this to me?" The victim had been stabbed at least ten times and died at the hospital. Six months earlier, Appellant had attacked the victim, dragging her screaming from her apartment down a flight of stairs and trying to force her into a vehicle. When she escaped his grasp, Appellant pulled out a gun and shot her in the abdomen. Appellant later admitted to one of the victim's neighbors that he was the one who shot her, and he apologized in front of the victim's sister for shooting the victim when he visited her in the hospital. At trial, Appellant called a psychotherapist who testified that his IQ of 63 was in the mentally deficient or mentally retarded range, that he fit the criteria for schizophrenia and depression, and that he was not on proper medication at the time of the killing and had experienced hallucinations on the night prior to the killing. The therapist offered his opinion that Appellant did not intend to kill the victim but instead acted out of rage. When viewed in the light most favorable to the verdict, the evidence presented at trial and summarized above was sufficient to authorize a rational jury to find Appellant guilty beyond a reasonable doubt of felony murder
3

predicated on aggravated assault. See Jackson v. Virginia, 443 U. S. 307, 319 (99 SC 2781, 61 LE2d 560) (1979). See also Vega v. State, 285 Ga. 32, 33 (673 SE2d 223) (2009) ("`It was for the jury to determine the credibility of the witnesses and to resolve any conflicts or inconsistencies in the evidence.'" (citation omitted)). 2. Appellant's only contention is that the trial court improperly

curtailed the jury's consideration of a voluntary manslaughter conviction as a possible alternative to convicting him of felony murder, citing Edge v. State, 261 Ga. 865 (414 SE2d 463) (1992), and cases interpreting Edge. We disagree.3 Voluntary manslaughter is a lesser included offense of murder, and where there is a written request to charge on voluntary manslaughter and even slight evidence to support the charge, the trial court must give the jury the option of convicting the defendant of voluntary manslaughter instead of murder. See State v. Alvarado, 260 Ga. 563, 564 (397 SE2d 550) (1990). Appellant requested a pattern charge on voluntary manslaughter, which was at least

The District Attorney, but not the Attorney General, argues that Appellant waived this argument at trial. However, Appellant's counsel reserved his objections to the jury charge, as allowed for trials in 1994. See Gaither v. State, 234 Ga. 465, 466 (216 SE2d 324) (1975). Com pare OCGA
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