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Sullivan v. State11/21/2005
ding that the victim's death was not an element of the offense that needed to be proved in the federal charge, because it was an element of the murder-for-hire charge and Sullivan was expressly charged with causing her death. Therefore, the state malice murder charge, which requires malice (an unlawful intent to kill) and the victim's death, is completely contained within the elements of the federal murder-for-hire charge, and there is no proof of a fact required in malice murder beyond that needed for the federal charge. The conclusion is inescapable that OCGA § 16-1-8 (c) operates to bar Sullivan's state prosecution for malice murder.
The State should also be barred from prosecuting Sullivan on the aggravated assault charges, because, based upon the elements of the offense of aggravated assault and the aggravated assault charges in Sullivan's state court indictment, they are lesser-included offenses of his malice murder charge. It is well-settled that the State cannot prosecute a defendant for a lesser-included offense after his conviction or acquittal of a greater offense. However, the State should not be barred by OCGA § 16-1-8 (c) from prosecuting Sullivan for burglary and felony murder predicated on burglary because burglary obviously requires proof of a different element from the federal murder-for-hire charge, and vice versa, so statutory double jeopardy is not violated. Burglary and felony murder based upon burglary are also not lesser-included offenses of malice murder. Under a proper analysis of OCGA § 16-1-8 (c), the State would be permitted to try Sullivan for felony murder predicated on burglary and burglary.
8. The majority's position on OCGA § 16-1-8 (c) is contrary to plain legislative intent, violates numerous rules of statutory construction, and renders the statute meaningless. The majority's argument -- that there can be no "concurrent jurisdiction" within the meaning of OCGA § 16-1-8 (c) unless the General Assembly enacts a criminal statute that mirrors the federal charge -- means that the General Assembly would have enacted a double jeopardy statute that contravenes basic double jeopardy principles and bars virtually no prosecutions. The legislature clearly intended that OCGA § 16-1-8 (c) be an exception to the dual sovereignty doctrine, and that it bar a state prosecution after a federal conviction or acquittal for what is the "same offense" under basic double jeopardy law. As a court, we must in every case apply the laws as they are enacted. Regardless of the result, the purpose of a statute is not an obstacle for us to overcome. Applying OCGA § 16-1-8 (c) to the facts of this case should bar Sullivan's state court prosecution for malice murder.
For the foregoing reasons, I dissent to the majority opinion. I am authorized to state that Justice Hines and Justice Melton join in this dissent.
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