Elder Abuse: BOOTH v. THE STATE, No. S21A0010 (Ga. May 3, 2021)

In Booth v. State, the Georgia Supreme Court considered the appeal of a daughter convicted of killing her mother.

Booth took custody of her elderly mother, Cowart, after she was discharged from the hospital in October 2016. Booth cared for Cowart in Booth’s home with the assistance of a registered nurse until early December. Cowart was in Booth’s unsupervised care from early December until March 15, 2017, when paramedics entered Booth’s home in response to a report that Cowart was unconscious. Cowart was suffering from pressure-induced ulcers that were so severe that her bones were exposed. The paramedics took Cowart, who was then 74 years old, to the hospital, where she died from complications caused by the ulcers.

Booth was arrested and indicted for felony murder for causing Cowart’s death while in the commission of the felony of neglect to an elder person; neglect to an elder person by willfully depriving Cowart of healthcare while she was supervising Cowart, a person over 65 years of age; involuntary manslaughter in that she caused Cowart’s death while in the commission of the unlawful act of reckless conduct; and reckless conduct in that she disregarded a substantial risk that her failure to seek medical aid for Cowart’s ulcers would endanger Cowart’s safety. The jury found her guilty on all four counts. The judge dismissed the jury. HOWEVER, the jury had not left the courthouse when Defence counsel objected to the verdict, arguing the counts for murder and involuntary manslaughter were mutually exclusive. The defence’s motion for mistrial was denied. The judge instructed the jury that the verdict was inconsistent and sent them back to the jury room where it found Booth guilty of felony murder and neglect to an elderly person and not guilty of involuntary manslaughter and reckless conduct.

On appeal, the Georgia Supreme Court rejected Booth’s argument that the original verdict was inconsistent and that murder and manslaughter are mutually exclusive. The Court held “the crimes as charged could be accomplished by the same conduct, but reflect mens rea of varying levels, the verdicts returned by the jury finding Booth guilty of all four counts are not mutually exclusive.”

The Court also found that the jury was not precluded from deliberating a second time by OCGA § 17-9-40, which provides in applicable part that “after [a verdict] has been received, recorded, and the jury dispersed, it may not be amended in matter of substance, either by what the jurors say they intended to find or otherwise.” (Emphasis supplied.). The record shows that after being told that they were “dismiss[ed] to the jury room,” and before being recalled to the courtroom, none of them left the courthouse. The jury remained together as a whole and did not separate before being asked to deliberate further. See Benton v. Wesley Machinery, 191 Ga. App. 334, 335 (1) (381 SE2d 577) (1989) (although the jury had been dismissed after returning its first verdict, it had not yet been dispersed, and the trial court did not err in allowing the jury to retire for further deliberations). Compare Wells v. State, 116 Ga. 87, 89 (42 SE 390) (1902) (verdict could not be amended because “when the verdict was agreed on and the jury dispersed the trial was, in effect, at an end”); Smith v. State, 59 Ga. 513, 514 (1877) (trial was at “an end when the jury made a verdict and separated”). Accordingly, the trial court was not precluded by OCGA § 17-9-40 from recalling the jury to deliberate further.

Judgment affirmed. All the Justices concur.

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