Parker v. State

¶1concurring.

¶2I concur fully in the majority opinion and write only to point out that, contrary to the position taken in the other concurring opinion, nothing in Division 2 of Jackson v. State, 276 Ga. 408 (577 SE2d 570) (2003) supports or even intimates a proposition contrary to the well-established rule set forth in Division 4 of this opinion regarding induced error. The other concurrence is attempting to validate a position rejected by this Court in Jacksonand endorsed solely by the concurrence’s author in his dissent in Jackson, namely, that the error in that case (the return of a mutually exclusive verdict by the jury) was subject to an “induced error” analysis. Even assuming, arguendo, that the defendant in Jacksonwas solely responsible for the charge that misled the jury,2 a void judgment is void, regardless of the behavior of the parties. Id. at fn. 2.

¶3I am authorized to state that Justice Thompson and Justice Hines join in this concurrence.

¶5concurring.

¶6Division 4 of the Court’s opinion correctly holds that Parker is barred from attacking on appeal a jury instruction that he requested. Whatley v. State, 270 Ga. 296, 300 (10) (d) (509 SE2d 45) (1998). However, this Court recently held that an accused was entitled to a new trial even though he requested the charge which induced the trial court to err. Jackson v. State, 276 Ga. 408, 410 (2) (577 SE2d 570) (2003). For the benefit of the bench and bar, I write separately so as to explain the seeming inconsistency between the holding in this case and that in Jackson. See Terrell v. State, 276 Ga. 34, 35 (572 SE2d 595) (2002) (Fletcher, C. J., writing majority opinion and separate concurrence).

¶7A new trial is the appropriate remedy when the trial court commits reversible error. See OCGA § 5-5-20 et seq. Compare OCGA § 17-9-61 (motion in arrest of judgment must be based upon a non-amendable defect appearing on the face of the record). The error in Jacksonwas the jury’s return of mutually exclusive verdicts of guilt. Because this Court granted the appellant therein a new trial, the *602verdicts must necessarily be attributable to reversible error on the part of the trial court. The only such error identified was that, “[a]fter discussing the matter with counsel, the trial court instructed the jury that it could return a guilty verdict on every count if it found the State had proven its case beyond a reasonable doubt as to each count. [Cit.]” Jackson v. State, supra at 410 (2), fn. 2. It was undisputed that such charge was given over the express objection of the State. The JacksonCourt recognized that the charge had been induced by defense counsel, who “argu[ed] erroneously, that any conflict in the verdict could be corrected at sentencing.” (Emphasis supplied.) Jackson v. State, supra at 410 (2), fn. 2. However, we held that “[ijnduced error cannot serve to render a void judgment valid.” (Emphasis supplied.) Jackson v. State, supra at 410 (2), fn. 2.

¶8Therefore, Jacksonacknowledged that the erroneous verdicts were induced by a charge requested by the defense, but concluded that the case nevertheless fell within a limited exception to the general rule, set forth in Whatley v. State, supra at 300 (10) (d), that such error is not reversible. Under Jackson, when the accused requests an instruction that results in the jury’s return of mutually exclusive verdicts, the error, even though induced, will mandate a reversal on appeal. Thus, Jacksonclearly supports a proposition contrary to the holding in Whatley v. State, supra at 300 (10) (d), that an appellant cannot successfully rely on induced error on appeal. However, since this case does not involve mutually exclusive verdicts, it is controlled adversely to the appellant by the induced error principle set forth in Whatley, rather than by the narrow exception to that rule established in Jackson.