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Sullivan v. State11/21/2005
. In a 1992 jury trial, a federal district court judge directed a verdict of acquittal on four counts of violating 18 U.S.C. § 1958, the federal murder-for-hire statute, arising from the same conduct as the state charges. Sullivan moved in the trial court that, under the provisions of OCGA § 16-1-8 (c), his prosecution on the state charges be barred. The trial court denied Sullivan's motion to bar his prosecution. I would conclude, under a proper analysis of OCGA § 16-1-8 (c), that the elements of the state malice murder charge are completely contained within the federal murder-for-hire prosecution, and that the State is thus barred by OCGA § 16-1-8 (c) from prosecuting Sullivan for malice murder. I would also conclude, however, that the State is not barred by OCGA § 16-1-8 (c) from prosecuting Sullivan for felony murder with burglary as the underlying felony.
I will initially focus on the malice murder charge. In this regard, the chief issue for resolution is whether the federal murder-for-hire charge required the prosecutor to prove the victim's death as an element of the offense, because, in denying Sullivan's motion to bar his prosecution under OCGA § 16-1-8 (c), the state trial court found that the victim's death was not a required element of murder-for-hire while her death is a required element of the state charge of malice murder. The federal statute under which Sullivan was charged and acquitted in 1992 was the federal murder-for-hire statute, 18 U.S.C. § 1958, which specifies that
hoever travels in or causes another (including the intended victim) to travel in interstate or foreign commerce, or uses or causes another (including the intended victim) to use the mail or any facility of interstate or foreign commerce, with the intent that a murder be committed in violation of the laws of any State or the United States as consideration for the receipt of, or as consideration for a promise or agreement to pay, anything of pecuniary value, or who conspires to do so, shall be fined under this title or imprisoned for not more than ten years, or both; and if personal injury results, shall be fined under this title or imprisoned for not more than twenty years, or both; and if death results, shall be punished by death or life imprisonment, or shall be fined not more than $250,000, or both.
The Georgia statute on malice murder, OCGA § 16-5-1 (a), specifies,
A person commits the offense of murder when he unlawfully and with malice aforethought, either express or implied, causes the death of another human being.
OCGA § 16-5-1 further defines malice as "that deliberate intention unlawfully to take the life of another human being. . . ."
The few Georgia cases on OCGA § 16-1-8 (c) involved the proper analysis of the federal and state prosecutions to determine if they each required proof of a fact not required in the other prosecution such that the statute would operate to bar the state prosecution. The case that is most similar to Sullivan's on this issue is Torres v. State. Torres was charged by the State with felony murder, armed robbery, and kidnapping with bodily injury due to his alleged involvement in the robbery of a van and the felony murder and kidnapping of the van's driver. He was also charged with carjacking by the federal government under 18 U.S.C. § 2119, which specifies that
hoever, with the intent to cause death or serious bodily harm takes a motor vehicle that has been transported, shipped, or received in interstate or foreign commerce from the person or presence of another by force and violence or by intimidation, or attempts to do so, shall --
(1) be fined under this title or imprisoned not more than
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