Jackson v. State

FINAL COPY

                S19A0231. JACKSON v. THE STATE.


      BENHAM, Justice.

     Torico Jackson appeals his convictions for malice murder and

related offenses in connection with the stabbing death of John Ray.

On appeal, Jackson claims that the trial court erred by failing to

instruct the jury on the applicable statute of limitation for the

relevant non-murder offenses, by admitting certain police reports,

and by denying his motion for a mistrial; Jackson also asserts that

trial counsel rendered constitutionally ineffective assistance in a

number of ways. Although we find no reversible error with respect

to Jackson’s convictions, we determine that he has been improperly

sentenced in part, and, as such, we vacate his sentence in relevant

part and remand for resentencing.1


     1 The murder occurred sometime between May 16 and May 17, 2004.       In
August 2013, a Fulton County grand jury returned an eight-count indictment
charging Jackson with malice murder, three counts of felony murder,
aggravated assault, burglary, armed robbery, and possession of a knife during
      Viewed in a light most favorable to the verdicts, the evidence

adduced at trial established as follows. On the day he was last seen

alive, Ray, a paralegal, spoke with a friend by telephone and

indicated that he was at home in the company of an unnamed man,

later identified as Jackson. Ray explained to his friend that, though

he had been spending time with Jackson recently, a background

check had revealed, among other things, that Jackson had a

criminal history. Later that day, Ray spent time socializing with

friends and was scheduled to help a soon-to-be roommate service her

vehicle; Ray, however, did not arrive to help his future roommate




the commission of a felony. Following a trial conducted August 29–September
11, 2013, a jury found Jackson guilty of all counts. Days later, the trial court
sentenced Jackson to consecutive terms of life imprisonment without the
possibility of parole for malice murder and armed robbery, a consecutive
twenty-year term of imprisonment for burglary, and a consecutive five-year
term of imprisonment for possession of a knife during the commission of a
felony. As discussed below, however, Jackson’s life-without-parole sentence for
malice murder is improper. All other counts were either vacated by operation
of law or merged for sentencing purposes.
       Jackson filed a motion for new trial in September 2013, which he
subsequently amended in April and May 2018. Following a hearing, the trial
court denied Jackson’s motion for new trial as amended. A timely notice of
appeal was filed in June 2018; this appeal was docketed to the term of court
beginning in December 2018 and thereafter submitted for consideration on the
briefs.
and was never heard from again.

     In the early morning hours of the following day, an officer with

the Atlanta Police Department observed a white Pontiac Grand Am

— later identified as belonging to Ray — run a stop sign. The officer

attempted to initiate a traffic stop, but the vehicle fled and

subsequently crashed. When law enforcement discovered the

wrecked vehicle, it was unoccupied; the car was covered in blood and

the back seat was filled with property later identified as belonging

to Ray, including electronics and a lock box. The car was impounded

and swabs of the blood were sent for DNA testing.

     Days later, Ray was discovered dead in his residence, which

had been secured and alarmed; he had been stabbed to death, and

his hands were bound behind him with telephone cord. The crime

scene smelled of bleach, and the washing machine held recently-

laundered clothing, including a red, oversized Rocawear shirt.

Investigators discovered blood in the bathroom where the assailant

had apparently bathed. A search of Ray’s computer revealed that

he had conducted self-initiated background checks on a number of
individuals, including Jackson, but there were no immediate leads

in the case.   The DNA from the blood in Ray’s car did not

immediately match a known individual, and, as a consequence, the

case went cold; the DNA profile was entered into the Combined DNA

Index System (“CODIS”) on the chance that the DNA could be

matched in the future to a known sample. Two years later, in 2006,

CODIS preliminarily matched Jackson’s DNA to the blood

discovered in the wrecked Pontiac.

     In 2010, a detective revisited Ray’s unsolved murder, reviewing

evidence in the case and working to confirm the preliminary DNA

match. A review of Ray’s telephone records revealed that, around

the time of the murder, phone calls were made between Ray’s

telephone and individuals who were acquainted with Jackson but

not Ray. The cold-case detective also uncovered a photograph of

Jackson amongst Ray’s possessions; it was timestamped just two

days before the murder. The investigation also led the detective to

gather photographs of Jackson, and, in a photograph taken just two

months before the murder, Jackson is depicted wearing a red,
oversized Rocawear shirt, like the one found in Ray’s washing

machine. The cold-case detective learned that Jackson had told his

girlfriend that a scar on his nose came from an accident in which he

had flipped a car. Fulton County booking photographs of Jackson

reveal that he must have sustained the injury sometime between

March 24, 2004, and June 20, 2004; Ray was murdered and his car

wrecked in May 2004. Finally, pursuant to GBI requirements, on

June 20, 2011, the investigator obtained a DNA sample from

Jackson to confirm the preliminary match. While taking the sample,

investigators spoke with Jackson — after he waived his Miranda2

rights — and Jackson provided no insight into Ray’s death, even

lying about living in the same neighborhood. The DNA match was

later confirmed.

     At trial, Jackson did not dispute that he had killed Ray.

Instead, Jackson asserted that he acted in self-defense. The defense

theory was that the two men were romantically involved and that

they fought after Ray confronted Jackson with his criminal


     2   Miranda v. Arizona, 

 (

, 16 LE2d 694) (1966).
background and then Ray disclosed his HIV-positive status.

According to the defense, Ray struck Jackson with a vodka bottle,

and Jackson grabbed a kitchen knife to defend himself. The defense

asserted that Jackson panicked and, knowing that Ray’s house had

been burglarized numerous times, staged the scene to make it

appear as if the murder had occurred during a robbery. The defense

explained at trial that the laundry, bleaching, and bathing was a

result of Jackson’s attempt to limit his exposure to HIV.

     1. Though not raised by Jackson as error, in accordance with

this Court’s standard practice in appeals of murder cases, we have

reviewed the record and find that the evidence, as summarized

above, was sufficient to enable a rational trier of fact to find Jackson

guilty beyond a reasonable doubt of the crimes of which he was

convicted. Jackson v. Virginia, 

 (

, 61 LE2d

560) (1979).

     2. Jackson first argues that there was a fact question as to

whether three of the non-homicide counts in the indictment (armed

robbery, burglary, and possession of a knife during the commission
of a felony) were timely prosecuted, and, thus, that the jury should

have been given relevant instructions on the statute of limitation

and its tolling.3 As Jackson acknowledges, there was no request for

such an instruction, so this enumeration is reviewed for plain error.

See OCGA § 17-8-58 (b).

      To establish plain error with respect to jury instructions,

Jackson “must demonstrate that the instructional error was not

affirmatively waived, was obvious beyond reasonable dispute, likely

affected the outcome of the proceedings, and seriously affected the

fairness, integrity, or public reputation of judicial proceedings.”

Hood v. State, 

 (

) (2018). “Satisfying

all four prongs of this standard is difficult, as it should be.” (Citation

and punctuation omitted.) State v. Kelly, 

 (

) (2011).

      “In criminal cases, the statute of limitation runs . . . from the




      3 Jackson’s statute of limitation argument also includes the count of
aggravated assault. However, the aggravated assault count merged for
sentencing purposes, and, thus, his claim of error with respect to that offense
is now moot. See, e.g., Solomon v. State, 

 (3) (

) (2019).
time of the criminal act to the time of indictment.” Hall v. Hopper,

 (1) (

) (1975). “[W]here an exception

is relied upon to prevent the bar of the statute of limitation[ ], it

must be alleged and proved.” Hollingsworth v. State, 

 (

) (1909). Indeed, the State bears the burden at trial

“to prove that a crime occurred within the statute of limitation, or,

if an exception to the statute is alleged, to prove that the case

properly falls within the exception.” (Citation and punctuation

omitted.) Jenkins v. State, 

, 604 n.31 (

)

(2004). Where a claim of instructional error is made, we examine

the jury charge as a whole. See Woodard v. State, 

 (

) (2015).

      Here, as to each non-murder count of the indictment, the State

alleged, as an exception to the relevant limitation period, that

Jackson’s “identity . . . was unknown to the State of Georgia until

June 20, 2011.” See OCGA § 17-3-2 (2).4 The gravamen of Jackson’s


      4 “The period within which a prosecution must be commenced under Code

Section 17-3-1 or other applicable statute does not include any period in which:
. . . [t]he person committing the crime is unknown or the crime is unknown[.]”
argument is that, in the absence of an instruction, the jury would

not have known about the State’s burden with respect to the statute

of limitation. According to Jackson, the trial court should have

instructed the jury to consider “whether the State proved that the

identity of the person who committed the crime was unknown until

June 20, 2011, as averred in the indictment.” While the trial court

did not specifically instruct the jury on the statute of limitation each

count of the indictment was read to the jury, and the jury was

instructed to “consider each count in the indictment separately” and

that the State was required to “prove every material allegation in

each count and every element of the crime charged beyond a

reasonable doubt for each count.” (Emphasis supplied.) See McLane

v. State, 

 (1848) (explaining that an exception to the

statute of limitation is a material allegation that must be alleged in

an indictment). The indictment was also sent back with the jury

following the charge, and the jury was instructed that its

deliberation could not commence until it received the indictment

and other evidence. We must presume the jury followed the trial
court’s instruction. See Allen v. State, 

 (3) (c) (

) (2004). Jackson cites no precedent requiring a more detailed

instruction on the statute of limitation or the applicable tolling

exception. See State v. Herrera-Bustamante, 

 (

) (2018) (recognizing that “[a]n error cannot be plain where

there is no controlling authority on point” (citation and punctuation

omitted)). Under these circumstances, we cannot say that the trial

court’s failure to specifically instruct the jury on the relevant statute

of limitation or tolling amounts to “clear or obvious error.” Kelly,

.

     3.   Jackson next contends that the trial court erroneously

permitted the State to adduce police reports concerning two prior

burglaries at Ray’s residence. According to Jackson, the reports

were irrelevant, were inadmissible hearsay, and were offered

through a witness who had no personal knowledge about either

incident. Jackson also complains that the State used the reports to

somehow connect him to the earlier incidents and to bolster its

theory that Ray was not killed in self-defense.
     We agree with the State, however, that any error with respect

to the admission of these police reports was harmless. The evidence

connecting Jackson to Ray’s murder was significant; further, the

jury was aware that Jackson was incarcerated at the time of one

burglary (and, thus, could not have been involved), and the jury also

learned that Ray himself believed that Jackson played no role in the

other burglary. Accordingly, there is no reversible error.

     4. Jackson next argues that the trial court erred when it failed

to grant his motion for a mistrial following “repeated” testimony

concerning Jackson’s failure to come forward with information about

the murder.      Specifically, Jackson argues that the testimony

violated Mallory v. State, 

 (

) (1991),5 as well

as Jackson’s rights under the Fifth Amendment to the United States

Constitution and his right against self-incrimination under the

Georgia Constitution. This argument is not preserved.

     During the State’s re-direct examination of an investigating


     5   During the pendency of this appeal, this Court determined that
Georgia’s new Evidence Code abrogated the relevant holding in Mallory. See
State v. Orr, 

 (

) (2019).
detective, the following exchange occurred:

           Q. [D]id this defendant once ever come to you and
     say, “I killed John Ray in self-defense?”
           A. No, ma’am.
           Q. Had he come to you back in 2004 and said, “It was
     me. I’m the one you are looking for —”
           A. Yes, ma’am.
           Q. Would you have even needed to wait until he
     entered the department of corrections and his DNA was
     taken and a hit came back and it was later assigned to the
     cold case squad, would you have even needed to wait for
     that?
           A. No, ma’am.
           Q. Had this defendant said to you, “It was me. I did
     it, but it was in self-defense,” would you have investigated
     —
           [Unrelated objection]
           Q. Had he said that, would you have investigated his
     claim?
           A. Absolutely.
           Q. Had anyone called you on the tip line and said,
     “This person said he did this, but it was in self-defense,”
     would you have investigated that?
           A. Yes, ma’am.
           Q. Had this defendant said, “I was just trying —”
           [Defense counsel]: Your Honor, I think we need to
     approach at this point.

It was at this point that defense counsel, outside of the presence of

the jury, moved for a mistrial on the basis that the State had been

eliciting testimony that, he said, amounted to “burden shifting” and
implied that Jackson had “some duty to come forward to the police.”

Trial counsel advised the trial court that it was the “second time

these kinds of questions ha[d] been directed to a witness” and that,

though he “let it go the first time,” a mistrial was necessary.

     It is well settled that ‘“[a] motion for mistrial must be promptly

made as soon as the party is aware of the matter giving rise to the

motion.’” (Citation omitted.) Ragan v. State, 

 (

) (2016). As trial counsel recognized below — and Jackson

continues to acknowledge on appeal — the motion for mistrial was

not based on a single question, but, instead, was premised on

allegedly improper testimony elicited throughout trial. The record

reflects that the State had elicited similar testimony without

objection from an earlier witness and, also, during its direct

examination of the detective the prior day. It was only after Jackson

had cross-examined both witnesses and the State had returned to

this line of questioning on re-direct examination that the motion for

mistrial was lodged. This is too late to claim error based on the

pattern of questions. See Coley v. State, 

 (3) (

) (2019) (“[B]ecause [Defendant’s] motion for a mistrial was

not made contemporaneous with the testimony that he complained

about, the issue of whether the court abused its discretion in denying

[his] later motion for mistrial is not properly before this Court for

review.”); St. Romaine v. State, 

 (

) (2001) (Defendant’s motion for a mistrial following the

introduction of testimony concerning his possession of drugs “was

untimely, as he permitted seven questions to be asked on the subject

of marijuana after it came up and then four more questions on

cocaine before making his motion. An untimely motion for a mistrial

waives the point.”).

     5. Finally, Jackson alleges that trial counsel was ineffective in

numerous ways. We address each argument in turn.

     Jackson succeeds on his claims only if he demonstrates both

that counsel’s performance was deficient and that counsel’s deficient

performance was prejudicial to the defense. See Terry v. State, 

 (2) (

) (2008). With respect to deficient

performance, a claimant must show that his attorney “performed at
trial in an objectively unreasonable way considering all the

circumstances and in the light of prevailing professional norms.”

Romer v. State, 

 (3) (

) (2013). When

reviewing counsel’s performance, we “apply a ‘strong presumption’

that counsel’s representation was within the ‘wide range’ of

reasonable professional assistance.”    Harrington v. Richter, 

 (

, 178 LE2d 624) (2011) (quoting Strickland

v. Washington, 

 (

, 80 LE2d 674)

(1984)). As such, “a tactical decision will not form the basis for an

ineffective assistance of counsel claim unless it was ‘so patently

unreasonable that no competent attorney would have chosen it.’”

(Citation omitted.) Brown v. State, 

 (

)

(2011).

     As to the second Strickland prong, in order “to show that he

was prejudiced by the performance of his lawyer, [a claimant] must

prove ‘a reasonable probability that, but for counsel’s unprofessional

errors, the result of the proceeding would have been different. A

reasonable probability is a probability sufficient to undermine
confidence in the outcome.’” Arnold v. State, 

 (2)

(

) (2013) (quoting Strickland, 

). Because

a claimant must satisfy both prongs, this Court is not required to

“approach the inquiry in the same order or even to address both

components of the inquiry if the defendant makes an insufficient

showing on one.” Strickland, 

. See also Rector v.

State, 

 (6) (

) (2009) (“If an appellant

fails to meet his or her burden of proving either prong . . . the

reviewing court does not have to examine the other prong.”). The

trial court’s factual findings and credibility determinations are

reviewed under a clearly erroneous standard, but this Court will

independently apply the legal principles to the facts. Suggs v. State,

 (4) (

) (2000).

     (a) Jackson first argues that trial counsel was ineffective for

failing to properly object and/or move for a mistrial with respect to

approximately 18 questions that, he says, led to testimony regarding

his failure to come forward to law enforcement concerning Ray’s

murder. Jackson contends that trial counsel should have objected
in each and every instance on the grounds that the questions and

resulting testimony were inadmissible under Mallory, the Fifth

Amendment     to   the   United   States   Constitution,   Georgia’s

constitutional protections against self-incrimination, and OCGA §

24-4-403 (“Rule 403”).

     First, the rule announced in Mallory — categorically excluding

evidence of a criminal defendant’s pre-arrest “silence or failure to

come forward” to law enforcement — was an evidentiary holding

decided under our old Evidence Code. See State v. Orr, 

(

) (2019). Jackson’s trial, however, occurred after the

effective date of Georgia’s new Evidence Code, at which time

Mallory’s continuing validity was questionable. Indeed, at least two

decisions decided by this Court before the time of Jackson’s trial

recognized as much. See Yancey v. State, 

, 817 n.9 (

) (2013) (noting that Mallory was decided under the old

Evidence Code and declining to address whether it remained good

law); Romer v. State, 

, 343 n.4 (

) (2013)

(citing Yancey).   Before Orr, this Court held that, because the
validity of Mallory was “subject to reasonable dispute,” trial counsel

was not ineffective for failing to lodge an objection under that

decision as it was an “unsettled question of law.” (Citation and

punctuation omitted.) Eller v. State, 

 (

)

(2018). Now that we have squarely held that Mallory was abrogated

by Georgia’s new Evidence Code, it is clear that a defendant cannot

prevail on a claim of ineffectiveness on the basis that his trial

counsel failed to rely on a case that was not applicable to his trial.

See Lockhart v. Fretwell, 

 (

, 122 LE2d

180) (1993) (holding that there was no Strickland prejudice based

on trial counsel’s deficient performance where, in the time between

the alleged deficient performance and the subsequent ruling on the

ineffective assistance claim, the law on which counsel’s alleged error

was predicated was overruled).

     Jackson next argues that trial counsel should have objected to

and/or moved for a mistrial under the Fifth Amendment to the

United States Constitution, arguing that,          under Griffin v.

California, 

 (

, 14 LE2d 106) (1965), the
State violated his right to remain silent. Griffin, however, addresses

whether a comment on a defendant’s “failure to testify violate[s] the

Self-Incrimination Clause of the Fifth Amendment.” 380 U. S. at

611.    Here, though Jackson did not testify, there has been no

suggestion that the prosecutors commented on his exercise of this

right.6 Further, contrary to Jackson’s position on appeal, the Fifth

Amendment does not per se exclude testimony concerning a

defendant’s pre-arrest failure to come forward.7 See Simmons v.

State, 

 (

) (2016) (recognizing that,

under United States Supreme Court precedent interpreting the

Fifth Amendment, “it is clear that testimony about a defendant’s



       6 Jackson was interviewed in June 2011 and spoke with investigators

after waiving his Miranda rights; the jury was aware of this interview. Later,
in August 2011, law enforcement attempted to interview Jackson again, but he
invoked his right to remain silent; there has been no argument that the State’s
questioning at trial implicated Jackson’s invocation of his post-Miranda right
to remain silent in the second interview. See Doyle v. Ohio, 

(

, 49 LE2d 91) (1976) (“We hold that the use [even] for
impeachment purposes of petitioners’ silence, at the time of arrest and after
receiving Miranda warnings, violated the Due Process Clause of the
Fourteenth Amendment.”). Indeed, Jackson notes in his brief that the jury
was not told that he asserted his right to remain silent in the second interview.
      7 Jackson concedes in his supplemental brief that the Fifth Amendment

does not provide a blanket exclusion on testimony concerning a defendant’s
pre-arrest silence.
failure to come forward is often admissible”). As such, Jackson’s

claim that trial counsel should have lodged a general objection under

the Fifth Amendment is without merit.

     Jackson also argues that trial counsel should have objected on

the basis of Georgia’s constitutional provision against self-

incrimination, citing Creamer v. State, 

 (

)

(1972) (right against self-incrimination under Georgia Constitution

not violated by removing bullet from defendant), and Olevik v. State,

 (

) (2017) (Georgia’s constitutional

provision   against   self-incrimination   covers   compelled   self-

incriminating acts and the right to refuse compelled breath tests).

These cases are inapposite; neither case speaks to the admissibility

of testimony concerning a defendant’s failure to come forward to law

enforcement, and the cases certainly do not stand for the proposition

that trial counsel’s failure to object here amounted to deficient

performance. As Jackson recognizes in his brief, neither Mallory nor

Orr was decided as a matter of Georgia constitutional law, and

Jackson points us to no law — and we have found none — suggesting
that Georgia’s constitutional provision concerning the right against

self-incrimination, see Ga. Const. of 1983, Art. I, Sec. I, Par. XVI,

would compel an objection from trial counsel.         In fact, Jackson

acknowledges in his supplemental brief that this Court has not

spoken to this issue. As such, there is no merit to this argument.

See Williams v. State, 

 (

) (2017)

(recognizing that “trial counsel’s performance cannot be deemed

deficient for not raising an unsettled question of law”).

     Finally, Jackson asserts that trial counsel should have objected

to the various questions and answers under Rule 403,8 complaining

that trial counsel should have sought the exclusion of the testimony

as “more prejudicial than probative.”      However, “the exclusion of

evidence under Rule 403 ‘is an extraordinary remedy which should

be used only sparingly.’” (Citation omitted.) Olds v. State, 

 (

) (2016). “The ‘major function’ of Rule 403 is to

exclude matter of scant or cumulative probative force, dragged in by



     8  Jackson does not assert that trial counsel should have lodged an
objection under any other rule of evidence.
the heels for the sake of its prejudicial effect.” (Citation and

punctuation omitted.) Hood v. State, 

 (4) (

) (2016). We note that Jackson has failed to engage in any Rule

403 analysis with respect to the individual questions and answers

about which he complains, instead, simply making a blanket

assertion that trial counsel should have lodged a Rule 403 objection

in each instance. However, we agree with the testimony of trial

counsel who indicated during the hearing on Jackson’s motion for

new trial that some of the testimony was, in fact, “innocuous,”

including that of a detective who answered “No, ma’am,” to the

question, “Did anybody ever . . . come forward and say, ‘I saw this

crime happen?’” Likewise, the State asked, “Did you ever find out

why anyone would walk all through that house and leave clothes in

the washing machine?” to which an investigator responded, “No one

ever told me. No, ma’am.”

     Nevertheless, to the extent that the questions and answers at

issue implicate Jackson’s failure to come forward, the failure of trial

counsel to object under Rule 403 did not prejudice the defense.
Though Jackson suggests that the questions and answers unfairly

prejudiced his self-defense strategy, the evidence strongly suggested

that the crime was not self-defense; indeed, Jackson tied up the

victim, left him in a locked and alarmed residence, fled in Ray’s

vehicle and with his property, and then sped away when a police

officer attempted to initiate a traffic stop. As such, trial counsel’s

failure to object in these instances under Rule 403 did not amount

to ineffective assistance. See Davis v. State, 

 (

) (2016) (recognizing that any possible deficient

performance by counsel in failing to object under Rule 403 did not

result in prejudice where the evidence was strong).

      (b) Jackson next argues that trial counsel was ineffective for

failing to properly object to the admission of the police reports

concerning the prior burglaries, to object to testimony concerning

the burglary reports, and, further, for failing to object to the reports

being provided to the jury during deliberations. As discussed above,

the admission of these reports was harmless; any attendant

testimony concerning the reports would be equally harmless. As
such, even if we assume that trial counsel performed deficiently in

this regard, we cannot say that, but for any possible error by trial

counsel, the result of the proceeding would have been different.

     (c) Jackson contends that trial counsel was ineffective for

failing to object during closing argument when the State argued as

follows:

          So what type of things are you to consider and what
     type of things are you not to consider? These things
     outside the circle . . . [p]assion, public opinion, unhappy
     with the police. [Defense counsel] said, “the police didn't
     do a good job,” not to be considered. If you don't like what
     someone did, then send a letter to their boss, write it on
     the back of the indictment, but don't let it impact your
     decision making in this case.

Irrespective of whether the State’s argument is improper, the trial

court correctly concluded that trial counsel was not ineffective in

this regard.   At the hearing on Jackson’s motion for new trial,

counsel testified that, though he was concerned that the State’s

position might have been an inaccurate statement of the law, he did

not object because he found it, again, “innocuous” and concluded that

the statement would not impact the jury’s decision. Trial counsel’s
decision amounted to trial strategy, see Holmes v. State, 

 (

) (2001), and we cannot say that “no

reasonable attorney, listening to the inflection of the speaker’s voice

and judging the jurors’ reactions, would choose to remain silent

instead of objecting and calling attention to the improper argument.”

Braithwaite v. State, 

 (

) (2002). As

such, Jackson is not entitled to relief on this claim. See 

 (trial

counsel’s decision not to object to “golden rule” argument not

deficient performance where the decision was reasonable trial

strategy).

     (d)     Finally, the cumulative prejudice from any assumed

deficiencies discussed in Division 4 (a) and (b) is insufficient to show

a reasonable probability that the results of the proceedings would

have been different in the absence of the alleged deficiencies. See

Jones v. State, 

 (4) (e) (

) (2019).

Accordingly, Jackson is not entitled to relief on his claim that trial

counsel was ineffective on this basis.

     6.      Although we find no error with respect to Jackson’s
convictions, we do note that he was improperly sentenced for malice

murder. Jackson was sentenced as a recidivist to life imprisonment

without the possibility of parole for that offense under OCGA § 17-

10-7 (c). However, at the time of the murder, OCGA § 17-10-7 (c) did

not apply to capital felonies, such as malice murder.9                      See

Funderburk v. State, 

 (2) (

) (2003).10

Accordingly, “the sentence of life imprisonment without possibility

of parole must be vacated and the case remanded to the trial court

with direction to enter a legal sentence.”11 

.

     Judgment affirmed in part and vacated in part, and case
remanded. All the Justices concur, except Blackwell, J., who concurs
in judgment only in Division 2.



      9  Though armed robbery “is treated as a capital offense for certain
purposes . . . for the purpose of recidivist sentencing, armed robbery is not
considered a capital felony.” Dempsey v. State, 

 (

) (2005). Accordingly, “the trial court was authorized to sentence him for
that offense to life imprisonment, with no eligibility for parole.” (Citation and
punctuation omitted.) 

      10 As we have previously noted, in 2010 the General Assembly amended

OCGA § 17-10-7 (c) to remove the exception for capital felonies. See Hyde v.
State, 

, 136 n.2 (

) (2016) (citing Ga. L. 2010, p. 563, §
1).
      11 Nothing in the record before this Court suggests that Jackson may be

sentenced to life without parole for malice murder. See Funderburk, 

 n.2 (explaining circumstances authorizing life without parole sentence
for malice murder as they existed at the time of the offense in this case).
                      Decided June 24, 2019.
     Murder. Fulton Superior Court. Before Judge Campbell.
     Margaret E. Bullard, for appellant.
     Paul L. Howard, Jr., District Attorney, Lyndsey H. Rudder,
Teri B. Walker, Assistant District Attorneys; Christopher M. Carr,
Attorney General, Patricia B. Attaway Burton, Deputy Attorney
General, Paula K. Smith, Senior Assistant Attorney General,
Meghan H. Hill, Assistant Attorney General, for appellee.