308 Ga. 104 FINAL COPY

S19A1361. MCELRATH V. THE STATE.

MELTON, Chief Justice.

On December 11, 2017, a jury found Damian McElrath guilty

but mentally ill of the felony murder and aggravated assault of his

adoptive mother, Diane, whom McElrath killed by stabbing over 50

times in a single episode.1 Based on the same episode, McElrath was

also found not guilty of the malice murder of Diane by reason of

insanity. McElrath now appeals, contending among other things

1 On October 4, 2012, McElrath was indicted for malice murder, felony

murder predicated on aggravated assault, and aggravated assault — all based on the stabbing death of Diane. McElrath was originally convicted in a bench trial, but the trial court granted a motion for new trial filed by McElrath on June 21, 2016. McElrath was subsequently retried before a jury. On December 11, 2017, the jury found McElrath not guilty by reason of insanity for the malice murder of Diane, and guilty but mentally ill of felony murder and its predicate of aggravated assault. On December 14, McElrath was sentenced to life imprisonment for felony murder, and the aggravated assault count was merged into the conviction for felony murder for sentencing purposes. On the same day, in a separate order, the trial court committed McElrath to a state mental health facility for evaluation pursuant to OCGA § 17-7-131. On December 28, 2017, McElrath filed a motion for new trial. The trial court denied the motion on April 26, 2019. McElrath timely filed a notice of appeal, and his case was docketed to the August 2019 term of this Court. The case was orally argued on October 22, 2019. that the jury’s verdicts were repugnant and that his conviction for

felony murder must be reversed or vacated. McElrath also appeals

the trial court’s separate order that, upon his discharge from

evaluation at a state mental health facility, he should be placed in

the custody of the Department of Corrections.2 Under the specific

facts of this case, we conclude that McElrath’s verdicts are

repugnant. Accordingly, we vacate both verdicts and remand

McElrath’s case for a new trial. We also vacate the trial court’s order

placing McElrath in the Department of Corrections’s custody

pursuant to the verdicts which now stand vacated.

1. The Evidence at Trial.

(a) The evidence presented at trial showed that McElrath, who

was 18 at the time of the stabbing, had suffered from either

schizophrenia or a related schizoaffective disorder. As a result of this

2 While his motion for new trial was still pending, McElrath filed a separate notice of appeal from this decision; however, on July 1, 2019, this Court dismissed that appeal for failing to follow the interlocutory procedures under OCGA § 5-6-34 (b) and informed McElrath that he could raise any challenge to this order as part of the present appeal.

2 disorder, McElrath had a long history of disciplinary problems,

including difficulties with Diane.3 Over time, McElrath began to

believe that Diane was poisoning his food and beverages.4 Although

the timeline is not exact, this delusion began approximately three

years before Diane’s death. The week before the stabbing occurred,

McElrath had to be hospitalized in a mental health facility because

of his behavior and thoughts, which included delusions that he was

an FBI agent who regularly traveled to Russia and who had killed a

number of people as such an agent. On the day before the stabbing,

or slightly earlier, McElrath believed that Diane confronted him and

admitted that she had been poisoning him.

On July 16, 2012, McElrath stabbed Diane more than 50 times

in an attack that began in an upstairs bedroom of the home Diane

and McElrath shared and ended at the front door. There, Diane

3 For example, McElrath shoplifted five iPads on one occasion, and, in a

separate incident, he had a quarrel with Diane that resulted in police being called to the home to investigate. At one point, Diane felt it was necessary to force McElrath to stay in an extended-stay hotel for approximately two months. 4 According to McElrath, Diane was putting ammonia in his lemonade

and spraying insect poison on his ice. 3 collapsed and died. After the stabbing, McElrath changed his

clothes, cleaned Diane’s blood off of his body, and washed a wound

on his hand that he sustained during the stabbing. He wrote a note

titled “My Antisocial Life,” claiming that Diane told him that she

had been poisoning him. In the note, McElrath stated that he was

not sorry about what he had done and that “she poisoned me so I

killed her.” He added that “I think I am right for doing it.” McElrath

then called 911 and reported that he killed his mother because she

poisoned him. McElrath asked the dispatcher if he was wrong to do

that.

Shortly thereafter, police arrived at the scene. McElrath was

transported to the police station for interrogation, where he

admitted that “I killed my Mom because she poisoned me.” When

the detective attempted to clarify any difficulties McElrath may

have had with Diane, McElrath stated that he was only mad that

she poisoned him. When the detective asked him if he thought

stabbing Diane was right or wrong, McElrath stated, “It was right

to me.”

4 The evidence at the scene, including blood spatter on the

upstairs wall, blood on the upper landing carpet, and blood on the

stairway bannister and wall, suggested that the attack began on the

upper level of the house and continued toward the front door where

Diane ultimately died. The medical examiner determined that

Diane had been stabbed more than 50 times, and that the wounds

were primarily located on her face, neck, upper torso, and upper

extremities.5

A number of experts testified at McElrath’s trial.6 There was a

general consensus that McElrath was, in fact, mentally ill and

suffering from at least some delusions, including the delusion that

he was being poisoned by Diane. Dr. Kevin Richards, the defense

expert, testified that, at the time McElrath stabbed Diane, McElrath

was acting under the delusion that he was in imminent danger of

5 Due to the number of wounds, the medical examiner could not make an

accurate determination as to which stab cut Diane’s jugular vein. 6 The experts included: Dr. Kevin Richards, a forensic psychologist hired

by the defense; Dr. Julie Rand Dorney, a psychiatrist hired by the State; and Dr. Samuel Perri and Dr. Kiana Wright, both of whom worked for the State Department of Behavioral Health and Developmental Disabilities.

5 death.7 In other words, McElrath was acting under the false belief,

though real to him, that he would die if he did not immediately

protect himself against Diane.8

(b) As an initial matter, this evidence authorized the jury to

find that McElrath was not guilty of malice murder by reason of

insanity at the time that he stabbed his mother.

In Georgia, a defendant is presumed to be sane and “a defendant asserting an insanity defense has the burden to prove by a preponderance of the evidence that he was insane at the time the crime was committed.” Buford [v. State], 300 Ga. [121, 122 (1) (b) (793 SE2d 91) (2016)] (citing Alvelo v. State, 290 Ga. 609 (3) (724 SE2d 377) (2012)). A defendant may prove insanity by showing that,

7 Dr. Richards classified McElrath’s thoughts as a “multifaceted delusion” including “[t]he delusion [Diane] was poisoning him; the delusion that [McElrath] was about to die; the delusion that [Diane] was going to keep poisoning him; the delusion [Diane] wanted to kill him. All of it’s — it’s all delusional. [Diane] wasn’t poisoning him. So his belief that he was in [imm]inent danger was delusional.” Dr. Julie Rand Dorney, one of the State’s experts, also testified that a paranoid delusion can contain the additional component that one’s life is in immediate danger. And, Dr. Samuel Perri, a state psychologist, testified that he read the reports generated by Dr. Richards and Dr. Dorney, and he agreed with their conclusions that McElrath suffered from a schizophrenia-type illness coupled with delusions. 8 Dr. Richards testified: “The reason [McElrath] killed [Diane] is because

she was poisoning him, and not only that she was poisoning him, that he was in imminent danger because now she had admitted it. . . .” Dr. Richards further testified: “[McElrath] said he [stabbed Diane] that day because [Diane] admitted [to poisoning him] and now she knew that he knew and he was going to die now; [McElrath] was sure of it and he was in [imm]inent danger.”

6 at the time of the incident, he lacked the mental capacity to distinguish right from wrong or that he was suffering from a delusional compulsion. See OCGA §§ 16-3-2[9] and 16-3-3;[10] Buford, [supra], 300 Ga. [at 124-125].

Bowman v. State, 306 Ga. 97, 100 (1) (c) (829 SE2d 139) (2019). The

delusional compulsion defense is available only when the defendant

is “suffering under delusions of an absurd and unfounded nature

[and] was compelled by that delusion to act in a manner that would

have been lawful and right if the facts had been as the defendant

imagined them to be.” (Footnote omitted.) Lawrence v. State, 265 Ga. 310, 313 (2) (454 SE2d 446) (1995).

Here, Dr. Richards testified specifically that McElrath was

suffering from a multifaceted delusion, one in which he believed both

9 This statute provides:

A person shall not be found guilty of a crime if, at the time of the act, omission, or negligence constituting the crime, the person did not have mental capacity to distinguish between right and wrong in relation to such act, omission, or negligence. 10 This statute provides:

A person shall not be found guilty of a crime when, at the time of the act, omission, or negligence constituting the crime, the person, because of mental disease, injury, or congenital deficiency, acted as he did because of a delusional compulsion as to such act which overmastered his will to resist committing the crime.

7 that Diane was poisoning him and that he was in imminent danger

of death at the time that he attacked Diane.11 This “absurd or

unfounded” delusion authorized the jury to determine that, under

the facts as McElrath believed them to be, his actions were justified.

(c) But there was also sufficient evidence to allow the jury to

find beyond a reasonable doubt that McElrath was guilty but

mentally ill of felony murder based on aggravated assault for

stabbing Diane.12 As to guilt, McElrath admitted that he stabbed

Diane, and his confession was amply corroborated by the forensic

11 Although other experts did not directly testify at trial that McElrath

was acting under a delusion of imminent danger at the time of the stabbing, they did testify that such a delusion could affect a person’s ability to control his behavior. 12 OCGA § 17-7-131 (a) (3) defines “mentally ill” as

having a disorder of thought or mood which significantly impairs judgment, behavior, capacity to recognize reality, or ability to cope with the ordinary demands of life. However, the term “mental illness” shall not include a mental state manifested only by repeated unlawful or antisocial conduct. OCGA § 17-7-131 (c) (2) provides, in turn: The defendant may be found “guilty but mentally ill at the time of the crime” if the jury, or court acting as trier of facts, finds beyond a reasonable doubt that the defendant is guilty of the crime charged and was mentally ill at the time of the commission of the crime. If the court or jury should make such finding, it shall so specify in its verdict.

8 and other evidence. As to mental illness, it is largely undisputed that

McElrath was mentally ill at the time of the crime and, in fact, had

been so for years. And, while there was evidence that McElrath

suffered from delusions at times, the jury was authorized to

determine that McElrath was not delusional at the time of the

stabbing or that, even if he was, any delusion that he was

experiencing did not justify the stabbing. For example, the jury

could have accepted that McElrath suffered from the delusion that

Diane had been poisoning him, but rejected that he had any delusion

that his life was in imminent danger. Under such a scenario, the

stabbing would not be justified, and the jury could have concluded

that McElrath stabbed Diane because he was admittedly angry with

her. The evidence thus supported the jury’s alternative

determination that McElrath was guilty but mentally ill of the

felony murder of Diane based on aggravated assault under the

standard set forth in Jackson v. Virginia, 443 U. S. 307 (99 SCt 2781,

61 LE2d 560) (1979).

2. Classification of McElrath’s Contradictory Verdicts.

9 The jury’s verdicts in this case are marked by an inherent

contradiction. As such, it becomes necessary to determine how to

characterize those verdicts. There are three main classes of

contradictory verdicts: “inconsistent verdicts,” “mutually exclusive

verdicts,” and “repugnant verdicts.”13 We will analyze each in turn.

(a) Inconsistent verdicts. As a general rule, inconsistent

verdicts occur when a jury in a criminal case renders seemingly

incompatible verdicts of guilty on one charge and not guilty on

another. In Georgia, as explained below, we have abolished the rule

that inconsistent verdicts require reversal. Milam v. State, 255 Ga. 560, 562 (2) (341 SE2d 216) (1986). Perhaps the classic example of

inconsistent verdicts occurred in United States v. Powell, 469 U. S. 57 (105 SCt 471, 83 LE2d 461) (1984). In Powell, the defendant was

acquitted of conspiring to possess cocaine with the intent to

distribute but convicted of the “compound offenses of using the

telephone in ‘committing and in causing and facilitating’ certain

13 Cases from Georgia appellate courts and elsewhere have often conflated these categories, in particular using “inconsistent” to describe all types of contradictory verdicts. 10 felonies — ‘conspiracy to possess with intent to distribute and

possession with intent to distribute cocaine.’” Id. at 60. Though the

Supreme Court recognized the internal inconsistency in these

verdicts, it nonetheless allowed them to stand, explaining that

where truly inconsistent verdicts have been reached, “[t]he most that can be said . . . is that the verdict shows that either in the acquittal or the conviction the jury did not speak their real conclusions, but that does not show that they were not convinced of the defendant’s guilt.” Dunn [v. United States, 284 U. S. 390, 393 (52 SCt 189, 76 LE 356) (1932)]. The rule that the defendant may not upset such a verdict embodies a prudent acknowledgment of a number of factors. First, as the above quote suggests, inconsistent verdicts — even verdicts that acquit on a predicate offense while convicting on the compound offense — should not necessarily be interpreted as a windfall to the Government at the defendant’s expense. It is equally possible that the jury, convinced of guilt, properly reached its conclusion on the compound offense, and then through mistake, compromise, or lenity, arrived at an inconsistent conclusion on the lesser offense. But in such situations the Government has no recourse if it wishes to correct the jury’s error; the Government is precluded from appealing or otherwise upsetting such an acquittal by the Constitution’s Double Jeopardy Clause.

(Citations omitted.) Id. at 64-65. The Supreme Court then further

concluded:

Inconsistent verdicts therefore present a situation where

11 “error,” in the sense that the jury has not followed the court’s instructions, most certainly has occurred, but it is unclear whose ox has been gored. Given this uncertainty, and the fact that the Government is precluded from challenging the acquittal, it is hardly satisfactory to allow the defendant to receive a new trial on the conviction as a matter of course.

Id. at 65.

Eventually, we followed the United States Supreme Court’s

approach to inconsistent verdicts.

In Milam v. State, [supra], this Court abolished the rule that inconsistent verdicts in irreconcilable conflict in criminal cases warranted reversal (see Hines v. State, 254 Ga. 386, 387 (329 SE2d 479) (1985)), adopting the rationale set out by the U. S. Supreme Court in United States v. Powell, [supra], in its exercise of supervisory powers over the federal criminal process. Id. at 65. . . . In our cases endorsing the abolition of the inconsistent verdict rule, we have determined it is not generally within the court’s power to make inquiries into the jury’s deliberations, or to speculate about the reasons for any inconsistency between guilty and not guilty verdicts. Dumas v. State, 266 Ga. 797 (2) (471 SE2d 508) (1996). As we observed in King v. Waters, 278 Ga. 122 (1) (598 SE2d 476) (2004), appellate courts “cannot know and should not speculate why a jury acquitted on . . . [one] offense and convicted on . . . [another] offense. The reason could be an error by the jury in its consideration or it could be mistake, compromise, or lenity. . . .”

Turner v. State, 283 Ga. 17, 20 (2) (655 SE2d 589) (2008).

12 For reasons that will be made clear in Division 2 (c), infra,

McElrath’s verdicts cannot be classified simply as “inconsistent

verdicts.”

(b) Mutually exclusive verdicts. The term “mutually exclusive”

generally applies to two guilty verdicts that cannot legally exist

simultaneously. In such cases, where it is “both legally and logically

impossible to convict [on] both counts, a new trial [should be]

ordered.” Dumas, supra, 266 Ga. at 799 (2). In Dumas, we explained:

[V]irtually all . . . Georgia cases affirming Georgia’s abolition of the inconsistent verdict rule involve jury verdicts of guilty and not guilty that are alleged to be inconsistent. These cases are in accordance with the principle that it is not generally within the trial court’s power to make inquiries into the jury’s deliberations, or to speculate about the reasons for any inconsistency between guilty and not guilty verdicts. However, this appeal presents an entirely different scenario, because it involves two verdicts of guilty that not only were inconsistent, but also were mutually exclusive.

(Footnotes and emphasis omitted.) Id. We went on to point out that

where there are mutually exclusive convictions, it is insufficient for an appellate court merely to set aside the lesser verdict, because to do so is to speculate about what the jury might have done if properly instructed, and to usurp the functions of both the jury and trial court.

13 Thomas v. State, 261 Ga. 854 (413 SE2d 196) (1992).

Dumas, supra, 266 Ga. at 800.

Dumas illustrates the problem of mutually exclusive verdicts.

In that case, the jury found the defendant guilty of malice murder,

vehicular homicide, and driving under the influence. Thereafter, the

trial court instructed the jury it had rendered contradictory verdicts,

and, as a result, the trial court sent the jury back for further

deliberations. The jury later returned verdicts finding the defendant

guilty of malice murder and driving under the influence. On appeal,

the defendant argued both that the trial court was obligated to

accept the jury’s first verdicts and that the essential elements of

malice murder and vehicular homicide contradicted each other,

making those verdicts mutually exclusive. Id. at 798 (1).

We ultimately affirmed the defendant’s conviction based on the

second set of verdicts. We ruled that the first verdicts could not be

accepted because the guilty verdicts for malice murder, an offense

requiring a showing of the presence of malice aforethought, and

vehicular homicide, requiring a showing of the absence of malice

14 aforethought, were mutually exclusive and therefore vacated. Id. at 800 (2).14

As McElrath’s verdicts are not two contradictory guilty

verdicts, his verdicts cannot be classified as “mutually exclusive.”

(c) Repugnant verdicts. Though they do not involve two guilty

14 This result, however, should be contrasted with State v. Springer, 297 Ga. 376 (774 SE2d 106) (2015). In Springer, the jury found Springer not guilty of felony murder but returned guilty verdicts on charges of aggravated assault and involuntary manslaughter predicated on the offense of reckless conduct. The trial court charged the jury as to both the [OCGA § 16-5-20] (a) (1) and (a) (2) definitions of assault, authorizing the jury to return a verdict based on either definition, and the jury’s verdict as to aggravated assault did not specify on which subsection it was based, leaving the possibility that the jury determined Springer both committed the assault with the intent to harm the victim and, at the same time, consciously disregarded a substantial and unjustifiable risk that his act of shooting a gun in a public parking lot would cause harm or endanger the safety of another. Id. at 383 (3). We concluded that these verdicts, however, were not mutually exclusive, as the essential distinction between these crimes [is] the level of mental culpability. Such distinction does not mean that findings of guilt as to both offenses are irreconcilable or that if the State proves the greater mens rea, a jury would not be authorized to convict of the lesser included crime based on the finding of the greater. One cannot and should not be allowed to defend against a lesser included charge by proving that he is more culpable. Accordingly, we conclude that multiple guilty verdicts for the same conduct that are based on varying levels of mens rea are not mutually exclusive. (Citation and footnote omitted.) Id. at 381 (1). 15 convictions, repugnant verdicts suffer from a similar infirmity as

mutually exclusive verdicts; they occur when, in order to find the

defendant not guilty on one count and guilty on another, the jury

must make affirmative findings shown on the record that cannot

logically or legally exist at the same time. Where a jury renders

repugnant verdicts, both verdicts must be vacated and a new trial

ordered for the same reasons applicable to mutually exclusive

verdicts. See Dumas, supra. Though we did not use the term

“repugnant verdicts” expressly, we did describe them in Turner, supra. There, we explained that,

when[,] instead of being left to speculate about the unknown motivations of the jury [regarding its return of contradictory verdicts,] the appellate record makes transparent the jury’s reasoning why it found the defendant not guilty of one of the charges, “[t]here is . . . no speculation, and the policy explained in Powell and adopted in Milam, supra, . . . does not apply.” King v. Waters, supra, 278 Ga. at 123.

Turner, supra, 283 Ga. at 20-21 (2). See also Guajardo v. State, 290 Ga. 172 (2) (718 SE2d 292) (2011).

This case falls into the category of repugnant verdicts, as the

16 guilty and not guilty verdicts reflect affirmative findings by the jury

that are not legally and logically possible of existing simultaneously.

This is because the not guilty by reason of insanity verdict on malice

murder and the guilty but mentally ill verdict on felony murder

based on aggravated assault required affirmative findings of

different mental states that could not exist at the same time during

the commission of those crimes as they were indicted, proved, and

charged to the jury.15 Put simply, it is not legally possible for an

individual to simultaneously be insane and not insane during a

single criminal episode against a single victim, even if the episode

gives rise to more than one crime.

In this case, the jury must have determined that McElrath was

15 In McElrath’s indictment, there was no real differentiation between

the three counts regarding McElrath’s alleged conduct. For malice murder, McElrath was accused of “unlawfully and with malice aforethought, caus[ing] the death of Diane McElrath by stabbing [her].” For felony murder, McElrath was accused of “caus[ing] the death of Diane McElrath by stabbing her” during “the commission of the felony offense of Aggravated Assault.” And, for aggravated assault, McElrath was accused of “assault[ing] Diane McElrath with a knife, a deadly weapon.” Nor did the State seek to prove, or the trial court instruct the jury, that the crimes occurred at different times or through distinct acts. See, e.g., Gomez v. State, 301 Ga. 445, 455 (4) (b) (801 SE2d 847) (2017) (describing the concept of a “deliberate interval” between acts). 17 legally insane at the time that he stabbed Diane in order to support

the finding that he was not guilty of malice murder by reason of

insanity. Nonetheless, the jury went on to find McElrath guilty but

mentally ill of felony murder based on the same stabbing — a logical

and legal impossibility. For this reason, the verdicts in this case are

repugnant, both verdicts must be vacated, and McElrath’s case must

be remanded for a new trial.16

3. Milam and Shepherd Do Not Control.

Contrary to the State’s arguments, McElrath’s case is not

16 We note that, in Blevins v. State, 343 Ga. App. 539 (808 SE2d 740)

(2017), the Court of Appeals, while analyzing Carter v. State, 298 Ga. 867 (785 SE2d 274) (2016), ruled that Carter supported the broad application of Milam’s inconsistent verdict rule to abolish repugnant verdicts. In Carter, we explicitly stated that we need not decide the question whether the rule that we announced in Milam, supra — which forbids a defendant from attacking as inconsistent a verdict of guilty on one count and not guilty on a different count — is just as applicable in repugnant verdict cases as it is in other inconsistent verdict cases. Id. at 869. As is evident from the discussion above, Milam’s inconsistent verdict rule does not abolish repugnant verdicts altogether. To the extent Blevins states otherwise, it is hereby overruled. We note that Carter inaccurately stated that, at the time of that opinion, this Court had not analyzed the concept of repugnant verdicts in relation to this Court’s abolition of the “inconsistent verdict” rule. As discussed above, we did, in fact, consider repugnant verdicts in Turner, supra, and in Guajardo, supra, prior to the time that Carter was decided. 18 controlled by either Milam, supra, or Shepherd v. State, 280 Ga. 245

(626 SE2d 96) (2006).

(a) Milam. In Milam, unlike here, there was evidence to

support a finding that the defendant’s mental state changed during

the commission of the charged crimes. More specifically, in Milam,

the defendant contended that he was suffering from delusions that

made him very angry and made him want “to blast away everybody.”

Milam, supra, 255 Ga. at 561. On the day of the crimes,

[Appellant] went to his father’s bedroom and obtained a single-barreled, single-shot shotgun belonging to his father. As [Ben] Cheese exited the bathroom appellant shot him. [Walter] Beasley testified that he opened his bedroom door after hearing the gunshot and walked down a hallway toward Horace Milam’s bedroom. Appellant, who was standing inside the bedroom, yelled for Beasley to get back, and Beasley returned to his room. Horace Milam stepped over Cheese and went into his own bedroom, where he was shot by appellant.

Id. at 560. The jury found Milam to be not guilty by reason of

insanity for the murder of Cheese and guilty but mentally ill of the

murder of Horace Milam. We analyzed the conflicting verdicts as

follows:

19 Initially, we note that, although the psychiatrist testified, first, that [Appellant] told him that he had heard voices in the past and that on the day of the killings those voices had made him very angry, and second, that he was of the opinion that appellant was mentally ill, he did not testify that appellant did not know the difference between right and wrong at the time of the crime. Moreover, . . . the state did present evidence of sanity in this case [to rebut the prior finding of insanity]. In this regard the record shows that appellant reloaded the gun after shooting Ben Cheese, and that when he saw Walter Beasley, he merely told Beasley to get back, instead of shooting him. After Beasley retreated, appellant shot and killed Horace Milam when Horace entered the bedroom. From appellant’s warning to Beasley, the jury could infer that appellant knew that killing was wrong; that he did not want to kill Beasley; and that the demons he claimed to hear actually did not “make him want to blast away everybody.” In addition, appellant’s flight from the house is evidence which a rational juror could consider as a factor indicating that appellant knew that his actions were wrong. Finally, the arresting officers testified that appellant was calm and cooperative following his arrest, thus contradicting appellant’s testimony that, at the time of the killings, voices were driving him mad and he did not know what he was doing.

Id. In other words, there was evidence that supported the jury’s

determination that Milam’s mental state shifted between the

distinct acts of shooting Cheese and shooting Horace Milam, which

were separated by Milam’s act of reloading the gun he was shooting

20 and his conscious decision to warn away an intervening person

rather than shooting that person as well. This evidence allowed the

verdicts in Milam to be logically and legally consistent, and,

therefore, not repugnant.

In this case, however, McElrath was indicted for stabbing

Diane in a single episode. No evidence of a deliberate interval during

the stabbing was presented to the jury to support a finding that

McElrath’s mental state changed at any time as he stabbed Diane.

(b) Shepherd. Shepherd v. State, supra, on which the State

largely relies, is distinguishable from the present case, at least as to

the result of that opinion. In Shepherd, the defendant shot and killed

his half-sister, and the jury found him not guilty by reason of

insanity for malice murder, but found him guilty but mentally ill of

felony murder predicated on aggravated assault, felony murder

predicated on possession of a firearm by a convicted felon,

aggravated assault, possession of a firearm by a convicted felon, and

possession of a firearm during the commission of a crime. In

sentencing Shepherd, the trial court merged the counts of felony

21 murder predicated upon aggravated assault, aggravated assault,

and possession of a firearm by a convicted felon into the felony

murder count predicated upon the possession of a firearm by a

convicted felon. Id. at 245 n.1.

The defendant contended that these verdicts were mutually

exclusive. This Court rejected the defendant’s claim, explaining that

only two contradictory guilty verdicts fall into the category.

Shepherd, 280 Ga. at 248 (1). We went on to discuss the verdicts as

inconsistent, and determined that, despite the fact that the crimes

occurred at one time and against the same victim,17 the rule that

inconsistent verdicts require reversal had been abolished by Milam.

17 With regard to the circumstances surrounding the murder of his half-

sister, Shepherd stated in a police interview that his sister “tried to run up behind me [and] . . . assault me” because “I wouldn’t have sex with her and her friends”; that she went to the kitchen sink to get a knife with which to attack him; and as she turned toward him, he opened fire striking her at least twice. Shepherd stated that he shot her again in the neck as she was trying to get away; he then pulled her away from the doorway; tossed his pistol in the backyard; and went across the street to call 911. He also disclosed that he had a prior felony conviction for eluding the police. When asked by a detective if he was sorry about the events, Shepherd answered, “No, I think I’m right.” Shepherd, supra, 280 Ga. at 246-247. 22 With this background, we concluded that the inconsistent verdicts

in Shepherd did not require reversal. Id. at 248-250 (1). We did not,

as we do in the present case, consider whether the verdicts were

repugnant.

As to that unaddressed issue, there was evidence to logically

and legally support both a finding that the defendant was not guilty

by reason of insanity for malice murder and a finding that the

defendant was guilty of the ongoing offense of possession of a firearm

by a convicted felon and felony murder predicated on that crime. The

defendant had admitted that he knew that, as a convicted felon, he

was not allowed to be in possession of the handgun, the felonious

possession of which was the proximate cause of the victim’s death.18

See Shepherd, supra, 280 Ga. at 250 (2).

The jury’s verdicts that the defendant in Shepherd was guilty

but mentally ill of aggravated assault and felony murder predicated

on aggravated assault are more problematic, given our analysis of

18 The defendant purchased the handgun three months before he killed

his half-sister. 23 the similar verdicts in this case. But, even if we should have decided

that those verdicts were repugnant with regard to the verdict of not

guilty by reason of insanity of malice murder, such that those

verdicts should have been vacated, the result in Shepherd would

have been the same, because the defendant was ultimately convicted

and sentenced only on the non-repugnant verdict of guilty but

mentally ill of felony murder based on possession of a firearm by a

convicted felon. See id. at 245 n.1. To the extent that the analysis in

Shepherd diverges from our analysis in this case, however, Shepherd

is disapproved.

4. The Order Remanding McElrath to the Department of Corrections. McElrath argues that the trial court improperly discharged

him from a state mental health facility and remanded him to the

custody of the Department of Corrections by applying an

inappropriate subsection of OCGA § 17-7-131. Specifically,

McElrath contends that the trial court should have applied

subsections applicable to a defendant found not guilty by reason of

insanity rather than guilty but mentally ill. Given our conclusion in

24 Division 2 (c), supra, we need not reach McElrath’s argument. Here,

McElrath’s verdicts are repugnant, and both must be vacated.

Therefore, at this juncture, the provisions of OCGA § 17-7-131 are

not applicable to McElrath, and the trial court’s order considering

McElrath’s placement under OCGA § 17-7-131 (g) (which relates to

the placement of a defendant who has been convicted as guilty but

mentally ill) must be vacated.

5. McElrath’s Remaining Contentions.

McElrath’s remaining enumerations all relate specifically to

his contention that he was improperly found guilty but mentally ill

of and convicted for felony murder based on aggravated assault.

Because we conclude that both of McElrath’s verdicts must be

vacated as repugnant, we need not reach these remaining

arguments.

Judgment vacated and case remanded with direction. All the

Justices concur.

25 DECIDED FEBRUARY 28, 2020. Murder. Cobb Superior Court. Before Judge Green. Kilgore & Rodriguez, H. Maddox Kilgore, Carlos J. Rodriguez, for appellant. Joyette M. Holmes, District Attorney, Amelia G. Pray, Assistant District Attorney; 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.

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