The Supreme Court of Georgia has reversed the murder conviction of a woman whose 15-month-old baby son died months after he was burned in an apartment fire that erupted while the baby’s father was cooking methamphetamine.
In today’s opinion, Justice Nels S.D. Peterson writes that under state law, because she already had been convicted in federal court of several crimes related to manufacturing meth, Suzzette Marie Calloway could not be prosecuted subsequently in state court for felony murder involving the same conduct.
“We conclude that the evidence was sufficient to support the jury’s verdicts, but Calloway’s federal conviction for attempt to manufacture meth barred a successive prosecution for the state crime of felony murder predicated on [i.e. based on] manufacturing meth,” today’s unanimous opinion says. “We therefore reverse her felony murder conviction….”
According to the facts in both federal court and Catoosa County Superior Court, Calloway and her husband, Christopher Hicks, had two children, 15-month old Chelton and an older son. Hicks manufactured and sold meth with the assistance of Calloway, who also sold the drug and purchased supplies, including pseudoephedrine tablets. Lance and Connie Rockholt were friends with the couple and often came to their apartment to smoke meth, supplied by Hicks. Lance later testified that the equipment and ingredients to make meth were located throughout the couple’s apartment.
The night of Feb. 17, 2001, the Rockholts visited Calloway and Hicks in their apartment. When they arrived, Calloway was in the kitchen cooking hot dogs while Hicks was in the back room cooking meth. Connie Rockholt made a bottle for Chelton, then took him to his bedroom where she gave him the bottle and laid him down for the night. Her husband, meanwhile, watched television in the living room with the older child. At some point, Hicks came out of the back room holding a “little flask of dope” and went into the kitchen. Hicks returned to the living room carrying a coffee pot of clear liquid, stating that he had “over gassed his dope.” Hicks retrieved a propane burner from the back room and set it on the coffee table in front of where Lance and his son were watching TV. He then began to heat the coffee pot, which was filled with methamphetamine. But the vapors from the coffee pot caught fire, and the liquid inside erupted in a flame, melting the plastic handle held by Hicks. Hicks dropped the flaming coffee pot, igniting the living room. Everyone but Chelton, who was asleep in his room, escaped. Once outside, Calloway realized Chelton was still inside. The group unsuccessfully tried placing a ladder next to Chelton’s bedroom several times before Hicks was able to enter the room and retrieve Chelton. The baby was badly burned on his face, scalp, arms and leg. Calloway and Hicks left immediately for the hospital with Chelton.
At the hospital, Calloway and Hicks told a state fire investigator that a wall heater had exploded and caught fire. Investigators later inspected the apartment but found evidence inconsistent with the couple’s account of the fire. Instead they found unnatural burn patterns and numerous items used in making methamphetamine, including pseudoephedrine pill bottles, latex gloves, coffee filters and fuel and propane cans. While Chelton was still in the hospital, he and the couple’s older son were placed in the custody of the Department of Family and Children Services. Chelton meanwhile was flown to the Shriner’s Burn Institute in Cincinnati, OH. The baby’s burns covered 30 percent of his body, and he underwent 10 surgeries to receive skin grafting. Doctors also had to perform a tracheostomy and install a trach tube due to the damage to his airway from inhaling so much hot air. He was eventually placed with a foster care mother in Georgia who was trained in caring for medically fragile children. But after a doctor changed his trach tube during a routine visit, Chelton quit breathing and suffered brain damage. The child welfare agency contacted Calloway and Hicks, and they gave their consent to withdraw care. On June 17, 2001, the baby died.
A detective attended the funeral, planning to take the couple into custody following the service on felony murder charges. But Calloway and Hicks did not attend the funeral, fleeing to Kentucky instead. In July 2001, local law enforcement received a tip that Calloway was spotted at a Walmart in Kentucky buying pseudoephedrine pills. Police officers followed her and when she began driving erratically, stopped her. She appeared to be under the influence of meth and was arrested. A search of her vehicle revealed numerous items used to make meth.
In January 2002, a federal district court indicted Calloway for conspiracy to manufacture meth, attempt to manufacture meth, and creating a substantial risk of harm during the attempted manufacture of meth. In December 2002, she was convicted of her federal charges and sentenced to 20 years in prison. About the same time she was indicted in federal court, a Catoosa County grand jury also indicted her for felony murder “predicated on” – or based on – manufacturing meth and three drug offenses. (Hicks was also indicted and ultimately convicted of murder and meth charges. He remains in prison under a life sentence.) Prior to her February 2004 trial, Calloway filed a motion arguing that the state charges were barred by her constitutional protection from double jeopardy. The trial court denied her motion and in February 2004, the jury found her guilty of felony murder predicated on manufacturing meth. She was sentenced to life plus 30 years in prison to run consecutively to her federal sentence. Calloway then appealed to the state Supreme Court.
In today’s 20-page opinion, the high court rejects Calloway’s argument that the evidence against her was insufficient to support the jury’s verdict. “Based on the foregoing, the evidence was more than sufficient to support the jury’s finding that Calloway was guilty of felony murder, manufacturing meth, possession of meth with intent to distribute, and simple possession,” the opinion says. However, Calloway also argued that the State was barred from prosecuting her under the double jeopardy provisions of Georgia Code § 16-1-8 (c) because she already had been convicted of federal crimes stemming from the same conduct. The statute says: “A prosecution is barred if the accused was formerly prosecuted in a district court of the United States for a crime which is within the concurrent jurisdiction of this state if such former prosecution resulted in either a conviction or an acquittal and the subsequent prosecution is for the same conduct….” In response to that argument, “We agree as to some of the state charges,” the opinion says.
“Here, the state and federal prosecutions were for crimes that arose from the same underlying conduct that occurred in Catoosa County on February 17, 2001,” the opinion says. “Therefore, the State’s prosecution for felony murder would be barred unless the felony murder count and the federal crimes required proof of facts not required by the other.”
However, “The State’s prosecution of possession with intent to distribute, and the federal charges of attempt or conspiracy to manufacture meth or creating a substantial risk of harm during the attempted manufacture of meth, required proof of different elements,” the opinion says. “Therefore, the State’s prosecution for possession with intent to distribute was not barred by § 16-1-8 (c). We therefore remand for resentencing on this unmerged count.”
Attorney for Appellant (Calloway): Jennifer Hildebrand
Attorneys for Appellee (State): Herbert “Buzz” Franklin, District Attorney, Christopher Carr, Attorney General, Beth Burton, Dep. A.G., Paula Smith, Sr. Asst. A.G., Scott Teague, Asst. A.G.