In the Supreme Court of Georgia
Decided: June 1, 2021
S21A0302. MAXWELL v. THE STATE.
S21A0303. WASHINGTON v. THE STATE.
MELTON, Chief Justice.
Zonnique Maxwell and Tyquarius Washington (collectively
“Appellants”) appeal the lower court’s partial denial of their
respective motions for autrefois convict and pleas of procedural
double jeopardy based on OCGA § 16-1-7 and OCGA § 16-1-8. For
the reasons set forth below, we affirm in part and reverse in part.1
1. The available evidence 2 relevant to Appellants’ motions
indicates that, on September 17, 2017, a shooting occurred on East
1 Because of the similarity of these appeals and the arguments raised by
Appellants, we have consolidated them for purposes of review.
2 At this pre-trial stage in the proceedings against Appellants, the
evidence has not yet been fully developed and is somewhat limited. At the
hearing on Appellants’ procedural double jeopardy motions, the trial court
largely relied on proffers from Appellants’ lawyers and the prosecutor to
determine that Appellants had not met their burdens.
33rd Street in Savannah. A police officer was dispatched to that
scene, but he was subsequently directed to Memorial Medical
Center, where Jaheim Morris had arrived with a gunshot wound to
his head. Morris died later that day. At the hospital, police learned
that Morris had been driven to the hospital in a private car, which
had a bullet hole in one of its doors. The occupants of this car (other
than Morris) were Maxwell, Washington, and two others. Police
searched these individuals for weapons and recovered a handgun
from Maxwell and a revolver and a pistol from Washington.
Maxwell was arrested for possession of a handgun by a person
under the age of 18, see OCGA § 16-11-132 (b), and was
subsequently accused in the State Court of Chatham County on May
16, 2018, for this misdemeanor offense.3 On September 19, 2018,
after further investigation into Morris’s shooting, Maxwell was
3The accusation charged Maxwell
with the offense of POSSESSION OF A HANDGUN BY PERSON
UNDER THE AGE OF 18 YEARS, for that the said ZONNIQUE
MAXWELL, in the County of Chatham and State of Georgia, on or
about the 17th day of September, 2017, being under the age of 18
years, did unlawfully possess a Jiminez Arms .25 caliber handgun,
contrary to the laws of the State of Georgia, the good order, peace
and dignity thereof.
2
indicted in the Superior Court of Chatham County for two counts of
felony murder (Counts 22-23), one count of aggravated assault
(Count 24), one count of carrying a weapon by an underage person
without a license (Count 29), three counts of possession of a firearm
during the commission of a felony (Counts 30-32), and seven counts
of violating the Street Gang Terrorism and Prevention Act (Counts
49-51 and Counts 56-59). On January 30, 2019, Maxwell entered a
negotiated guilty plea to the firearm charge in state court, and she
was sentenced to serve 12 months.4 On February 13, 2019, Maxwell
4 At the plea hearing, the prosecutor provided the following factual basis
for the guilty plea:
Ms. Maxwell was originally charged with one count of possession
of a handgun by a person under the age of 18 years. If this case
were to proceed to trial, evidence would show that on or about
September 17th, 2017, a Shot Spotter detected gunfire near the
1500 block of 33rd Street in Chatham County, Georgia. A 9-1-1
caller, in this area, called and indicated that she saw a white
vehicle leaving the scene . . . . A short time later, a gunshot victim
was admitted to the emergency entrance of the Memorial Hospital.
Officers responded to that location, identified a gold vehicle with a
single bullet hole in the door. Officers inspected the vehicle. There
has been a victim of a gunshot wound in that vehicle. Ms. Maxwell
was seated in the back middle seat. Officers spent some time
investigating the victim of the shooting, during which they
searched all of the individuals of the vehicle. As stated before, Ms.
Zonnique Maxwell was located in the middle of the back seat. She
initially said she didn’t have anything on her. And then she
3
filed a “Motion in Autrefois Convict and Plea of Former Jeopardy,”
seeking dismissal of the superior court charges against her pursuant
to Georgia’s statutory proscriptions against double jeopardy, OCGA
§ 16-1-7 and OCGA § 16-1-8. Maxwell maintained that the superior
court prosecution was barred because those charges involved the
same gun and arose from the same conduct to which she pleaded
guilty in state court.
Similar to Maxwell, Washington was initially arrested at the
hospital and charged with carrying weapons without a license. See
OCGA § 16-11-126 (h). He was subsequently accused in the State
Court of Chatham County on May 16, 2018, for this misdemeanor
offense.5 On September 19, 2018, Washington was indicted in the
indicated to the officer that she had a weapon, which was a .25
caliber firearm. That was removed from her person by the
officers[,] and she was detained at this point.
5 The accusation charged Washington with:
the offense of CARRYING A WEAPON WITHOUT A LICENSE,
for that the said TYQUARIUS DAVION WASHINGTON, in the
County of Chatham and State of Georgia, on or about the 17th day
of September, 2017, did carry a weapon, to wit: a pistol and a
revolver, without a valid weapons carry license, contrary to the
laws of the State of Georgia, the good order, peace and dignity
thereof.
4
Superior Court of Chatham County for two counts of felony murder
(Counts 22-23), one count of aggravated assault (Count 24), two
counts of carrying a weapon without a license (Counts 33-34), three
counts of possession of a firearm during the commission of a felony
(Counts 35-37), and eight counts of violating the Street Gang
Terrorism and Prevention Act (Counts 49-51 and Counts 60-64), all
in relation to Morris’s shooting. 6 On September 18, 2018,
Washington entered a negotiated guilty plea on the firearm charge
in state court and was sentenced to 12 months of probation.7
Thereafter, on March 7, 2019, Washington filed a motion to adopt
Maxwell’s procedural double jeopardy motion.
6 We note that the other occupants of the car with Maxwell and
Washington were charged with a number of similar offenses.
7 At Washington’s plea hearing, the prosecutor provided the following
factual basis for the guilty plea:
If this had gone forward, the State would have shown that[,] on or
about September 13th, 2017, officers responded to Memorial
Medical Center, here in Chatham County, in regards to a possible
shooting. Upon arrival[, officers] met with several individuals one
of which was [Washington. A]fter speaking to him and doing a
search, [officers] found a weapon in his possession[,] and he did not
have a license for that.
5
On May 15, 2019, and October 21, 2019, the trial court held a
hearing regarding the motions filed by Appellants. At this hearing,
the State agreed to the dismissal of the single count of carrying a
weapon without a license against Maxwell (Count 29) and the two
counts of carrying a weapon without a license against Washington
(Counts 33 and 34). 8 The trial court granted Appellants’ motions
with regard to these charges, because they arose from Appellants’
possession of the same handguns at the hospital and were thereby
barred by procedural double jeopardy. However, the trial court
denied the motions with respect to all of the remaining superior
court charges. Appellants now challenge this ruling with largely
identical arguments.
For the reasons set forth below, we hold that, for the majority
of the superior court counts against Appellants, the trial court
properly denied Appellants’ motions. However, as set out in Division
4, we hold that, with respect to one count of street gang activity
8 The State argued that these counts were not barred by procedural
double jeopardy, but it agreed to their dismissal in order to make things
“easier.”
6
against Maxwell and two counts against Washington, the trial court
should have dismissed these counts as they are explicitly premised
in the indictment on the counts that were dismissed.
2. “On appeal from the grant or denial of a double jeopardy plea
in bar, we review the trial court’s oral and written rulings as a whole
to determine whether the trial court’s findings support its
conclusion.” (Citation and punctuation omitted.) State v. Hill, 333
Ga. App. 785, 785 (777 SE2d 265) (2015). When the facts are
undisputed, our review of the trial court’s application of the law to
those facts is de novo. See id. The trial court’s factual findings are
assessed under the standard of clear error. See Jenkins v. State, 294
Ga. 506, 508 (1) (755 SE2d 138) (2014).
As background for Appellants’ claim regarding procedural
double jeopardy protection, we have previously explained:
The [constitutional] rule against double jeopardy is . . .
expressed in various terms but basically provides that no
person shall be put in jeopardy of life or liberty more than
once for the same offense. It is a simple and concise
statement of law. Unfortunately[,] it has become confused
because many courts have not distinguished its
application to the bar of successive prosecutions and the
7
bar to multiple convictions. The bar to successive
prosecutions is referred to as the procedural aspect of the
double jeopardy rule. The rationale behind the bar to
successive prosecutions is to prevent harassment of the
accused. The bar to multiple convictions is referred to as
the substantive aspect. The rationale behind the bar to
multiple convictions is to prevent multiple and excessive
punishments.
The bar to multiple convictions usually arises where
several crimes arising out of one criminal transaction are
tried at the same time. In such cases the rule does not
operate until after the verdicts. Under Georgia law it bars
the conviction and therefore the punishment of all crimes
which are as a matter of law or a matter of fact included
in a major crime for which the defendant has been
convicted. State v. Estevez, 232 Ga. 316 (206 SE2d 475)
(1974). However, the bar to multiple convictions may have
a procedural aspect where the crimes arising out of the
same criminal transaction are tried separately. Where
crimes are tried separately it is generally held that if
multiple convictions arising out of a single prosecution
are barred they will likewise be barred from successive
prosecution. Therefore[,] when crimes are to be
prosecuted separately[,] the more serious known crimes
should be prosecuted first to avoid the conviction of a
lesser crime barring a subsequent prosecution for a more
serious crime.
(Footnote omitted.) Keener v. State, 238 Ga. 7, 7-8 (230 SE2d 846)
(1976).
These constitutional double jeopardy protections are enhanced
8
by additional statutory protections provided under state law. See
State v. Adams, 355 Ga. App. 875, 880-881 (846 SE2d 148) (2020).
“Because the Georgia Code expands the proscription of double
jeopardy beyond that provided for in the United States and Georgia
Constitutions, all questions of double jeopardy in Georgia must now
be determined under OCGA §§ 16-1-6 [through] 16-1-8.” (Footnote
and punctuation omitted.) Prater v. State, 273 Ga. 477, 480 (4) (545
SE2d 864) (2001). Unlike constitutionally based double jeopardy,
statutory procedural double jeopardy extends the concept of res
judicata to the successive prosecution of different crimes arising
from the same conduct in situations where the State should have
prosecuted the different crimes in a single proceeding. See, e.g.,
McCannon v. State, 252 Ga. 515, 517 (315 SE2d 413) (1984).
Turning to the pertinent statutes, OCGA § 16-1-7 (b) provides
that, “[i]f the several crimes arising from the same conduct are
known to the proper prosecuting officer at the time of commencing
the prosecution and are within the jurisdiction of a single court, they
must be prosecuted in a single prosecution,” except as provided in
9
OCGA § 16-1-7 (c). 9 OCGA § 16-1-8 (b) (1) states, in relevant part:
A prosecution is barred if the accused was formerly
prosecuted for a different crime . . . if such former
prosecution . . . [r]esulted in either a conviction or an
acquittal and the subsequent prosecution . . . is for a crime
with which the accused should have been charged on the
former prosecution (unless the court ordered a separate
trial of such charge)[.]
In other words, “[a] second prosecution is barred under OCGA § 16-
1-8 (b) (1) if it is for crimes which should have been brought in the
first prosecution under OCGA § 16-1-7 (b).” (Footnote and
punctuation omitted.) Nicely v. State, 305 Ga. App. 387, 388 (1) (699
SE2d 774) (2010). Thus, when considered together, OCGA §§ 16-1-7
(b) and 16-1-8 (b) prevent successive prosecutions for crimes: (1)
subject to the jurisdiction of the same court; (2) known to the proper
prosecuting officer at the time the prosecution commences; and (3)
arising from the same conduct. See Banks v. State, 320 Ga. App. 98,
99-100 (739 SE2d 414) (2013). For this procedural double jeopardy
to attach, all three factors must be satisfied, and the defendant has
9 OCGA § 16-1-7 (c) provides: “When two or more crimes are charged as
required by subsection (b) of this Code section, the court in the interest of
justice may order that one or more of such charges be tried separately.”
10
the burden of proving that further prosecution is barred by the
previous prosecution. See id. at 101.
3. To properly assess Appellants’ arguments, we consider each
of these three procedural double jeopardy factors in turn. We note at
the outset of this consideration that application of these factors may
often be difficult when, in cases like this one, the question of
procedural double jeopardy initially arises at a time before trial has
occurred. The defendant bears the burden of proving procedural
double jeopardy, see id., and a court must make decisions based on
the limited facts or representations that are currently available from
the parties. And, as discussed more fully in Division 3 (c), a court
must also focus on consideration of how the State could prove its
case at a future trial, as it may be impossible to know how the State
actually will prove its case once trial is underway.
(a) It is undisputed that the state court charges relating to
possession of a firearm for both Appellants could have been brought
in superior court along with all of the remaining charges in a single
prosecution. Superior courts have concurrent jurisdiction with all
11
inferior courts over misdemeanor offenses. See Hicks v. State, 228
Ga. App. 235, 236 (1) (a) (494 SE2d 342) (1997) (citing Ga. Const. of
1983, Art. VI, Sec. IV, Par. I). This factor is satisfied.
(b) Both the state court crimes and the superior court charges
also were known to the proper prosecuting officer when the
accusations against Appellants were filed. The District Attorney for
the Eastern Judicial Circuit is the proper prosecuting officer for both
the State and Superior Courts of Chatham County. Tellingly, the
accusations for the state court crimes as well as the indictments for
the superior court charges against both Appellants were signed by
that district attorney. “[T]he appearance of the district attorney’s
name on both an accusation and indictment constitutes
circumstantial evidence which conclusively establishes [her] actual
knowledge of the pendency of the prosecutions and of the offenses
charged in each.” Mack v. State, 249 Ga. App. 424, 426 (547 SE2d
697) (2001). See also State v. Smith, 259 Ga. 352, 352 (381 SE2d 37)
(1989). The second factor is also satisfied.
(c) The only question that remains is whether the state court
12
crimes and the superior court charges for Appellants arise from the
same conduct for purposes of statutory procedural double jeopardy.
In order to determine whether offenses occurred as a
result of the same conduct to constitute procedural double
jeopardy, . . . the crimes, inter alia, must arise from the
same transaction or continuing course of conduct, occur at
the same scene, occur on the same date, and occur without
a break in the action; additionally, if it is necessary to
present evidence of the one crime in order to prove the
other, then the State must prosecute those charges at the
same time.
(Footnote omitted.) Johns v. State, 319 Ga. App. 718, 719 (738 SE2d
304) (2013). See also State v. Stewart, 317 Ga. App. 82, 84 (729 SE2d
478) (2012) (“A court also should consider whether the crimes
occurred on the same date, at the same time, and in the same place,
and whether the crimes had the same object and involved the same
circumstances and parties.”) (citation omitted). As the trial court
correctly emphasized in its order,10 it is impossible to know at this
10The trial court explained:
At this stage in the proceedings, it is impossible for the Court to
know exactly how the State intends to prove its case. Regardless,
the Court can envision numerous ways in which these other
Superior Court Charges can be proven. For example, the State may
have an eyewitness who will testify that he saw the Defendant
13
stage in the proceedings exactly how the State will prove its case, so,
as the trial court did, we must consider how the State could prove
its case at a future trial based on whatever facts may be currently
available.
While the state court crimes and the alleged superior court
offenses were committed on the same date, as indicated by the
prosecutors’ representations at the plea hearings, they did not
necessarily occur at either the same scene or the same time.
According to the prosecutor, the state court gun possession crimes
arose from Appellants’ encounter with police at the hospital, where
Appellants were apprehended. In contrast, rather than at the
hospital, the superior court charges could be proved based on the
shooting of Morris that occurred approximately 2.5 miles away at
East 33rd Street. Additionally, the crimes at the hospital were
committed at some time after the shooting – at least a period of time
with the gun in question at the scene of the alleged shooting, or the
State may have photographic evidence of the Defendant holding
the gun on or close to the date in question. Such evidence would
allow the State to prove the other charges . . . .
14
long enough for Morris to be driven to the hospital from the scene of
the shooting. In other words, the State could conceivably prove the
actions leading to Morris’s shooting happened at a distinct point in
time from Appellants’ arrival at the hospital. These actions would
also be separated by the Appellants’ efforts to get their companion
to a hospital in order for him to receive medical help. So, it is possible
that at least by the time Appellants reached the hospital, one course
of conduct had ended, and a different course of conduct had begun.
See Cooper v. State, 253 Ga. 736, 737 (2) (325 SE2d 137) (1985)
(violation of ordinance by possessing a knife at a location different
than a rape committed at knifepoint on the same date considered a
separate transaction). See also Jackson v. State, 336 Ga. App. 140,
144-45 (2) (784 SE2d 7) (2016) (no continuous course of conduct
existed when defendant was charged in superior court with sexually
assaulting victim inside an apartment and was charged in state
court for criminal trespass and weapons charges after being found
outside a different building in the same apartment complex “some
time later” that same day); Johns, supra, 319 Ga. App. at 720
15
(defendant’s guilty plea to misdemeanor criminal trespass did not
bar subsequent DUI prosecution on procedural double jeopardy
grounds where the criminal trespass was completed prior to the
traffic stop, even though stop occurred near the residence in
question and police had information that defendant was intoxicated
during the criminal trespass event). Therefore, for all of the reasons
discussed above, the trial court appropriately determined that the
superior court charges could be proven by a course of conduct
different than the state court crimes.
The last inquiry is whether it is necessary to present evidence
of the gun possession crimes at the hospital in order to prove the
superior court charges. With regard to the charges of felony murder,
aggravated assault, and possession of a firearm during the
commission of a felony, the State could prove those felonies by
showing that the Appellants possessed firearms and actually
committed these offenses, or that a co-defendant of the Appellants
actually committed the crimes and that Appellants helped in the
commission of the crimes, encouraged a co-defendant to commit the
16
crimes, or otherwise engaged in conduct that would make
Appellants criminally responsible as parties to the crimes. See
OCGA § 16-2-20.11 Under this circumstance, Appellants’ state court
charges would not be necessary to prove the superior court felony
charges relating to Morris’s shooting. Appellants’ contentions that
all of the crimes were indivisibly connected because they were
committed in the same car and that some evidence of the trip to the
hospital might be admissible during the felony trial does not alter
this result. See, e.g., Daniels v. State, 355 Ga. App. 134, 137 (843
SE2d 18) (2020) (fact that State may introduce evidence of one crime
at later trial of another does not mean the State needs to do so);
Johns, supra, 319 Ga. App. at 720 (“two incidents were separate
transactions, one of which had been completed prior to the other,
11 For example, Yusuf Maxwell, a co-defendant, was also charged in the
superior court indictment with possession of a handgun at the time the felonies
were committed. And, while Appellants were indicted as parties to a crime for
felony murder and aggravated assault, but not possession of a firearm during
the commission of a felony, “[t]he law is well-settled in Georgia that the State
is not required to specify in the indictment that it is charging the defendant as
a party to the crime.” (Citation and punctuation omitted.) Metz v. State, 284
Ga. 614, 618 (3) (669 SE2d 121) (2008), overruled on other grounds by State v.
Kelly, 290 Ga. 29, 32 (1) (718 SE2d 232) (2011).
17
and both of which could be presented to a trier of fact without
disclosing evidence of the other”); Jaheni v. State, 285 Ga. App. 266,
269-270 (2) (a) (645 SE2d 735) (2007) (“We reject any contention that
when one steals a vehicle, every act however unrelated and
independent which he commits while in possession of that vehicle is,
by virtue of that single fact, of the same conduct and same
continuing transaction as the theft of the vehicle.”) (footnote and
punctuation omitted). It is also the case that, for the bulk of the
remaining superior court charges against Appellants (excluding
Counts 56, 60, and 61, which are addressed in the next division), we
cannot say at this point in the proceeding that evidence of the state
court crimes would be necessary to prove the superior court charges,
and, as such, the trial court correctly held that Appellants had not
satisfied their burdens of proving procedural double jeopardy. See
Stewart, supra, 317 Ga. App. at 84-85. 12
4. However, because of the dismissal of Count 29 against
12 In this opinion, we address only whether procedural double jeopardy
required the State to bring all charges in a single proceeding.
18
Maxwell and Counts 33 and 34 against Washington, to which the
State agreed and has not sought to appeal, certain of the counts of
criminal street gang activity must be considered differently from the
others. Count 56 against Maxwell and Counts 60 and 61 against
Washington allege that Appellants engaged in criminal street gang
activity that is expressly premised on the gun possession charges
against Appellants that were dismissed (Count 29 against Maxwell,
and Counts 33 and 34 against Washington). Because Counts 56, 60,
and 61 rely on and are inextricably connected to the dismissed
counts against Appellants, Counts 56, 60, and 61 should have been
dismissed as well. For this reason, the trial court’s orders on
Appellants’ motions must be reversed as to Counts 56, 60, and 61
only.
Accordingly, the trial court did not err in the manner it handled
Appellants’ procedural double jeopardy motions, except with respect
to Counts 56, 60, and 61.
Judgments affirmed in part and reversed in part. All the
Justices concur.
19