CourtListener 10749682•Montgomery v. State
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official text of the opinion.
In the Supreme Court of Georgia
Decided: December 9, 2025
S25A1017. MONTGOMERY v. THE STATE.
LAGRUA, Justice.
Appellant Sherrod Montgomery appeals his conviction for
felony murder related to the beating death of Ricky Cox. 1 On appeal,
Montgomery argues that his conviction should be reversed based on
the following contentions: (1) the trial court erred by entering a
conviction for felony murder predicated on aggravated battery,
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1 Cox died from his injuries on May 21, 2021. On September 1, 2021, a
Carroll County grand jury indicted Montgomery for the following counts:
malice murder (Count 1); felony murder predicated on aggravated battery
(Count 2); aggravated assault (Count 3); and aggravated battery (Count 4).
Montgomery was tried from January 9 to 13, 2023, and the jury found
Montgomery not guilty of malice murder but guilty on the remaining counts.
The trial court sentenced Montgomery to life with the possibility of parole on
Count 2 (felony murder) and merged the remaining counts with the felony
murder conviction. Montgomery filed a timely motion for new trial, which he
later amended through new counsel on September 15, 2024. After holding an
evidentiary hearing on the motion for new trial, the trial court denied the
motion on September 30, 2024. Montgomery filed a timely notice of appeal to
this Court, and the case was docketed to the August 2025 term and orally
argued on August 26.
which requires malice, after the jury rejected the essential element
of malice by rendering a not guilty verdict on malice murder; and (2)
the trial court plainly erred by instructing the jury that it could find
felony murder predicated on aggravated battery without finding
malice. For the reasons that follow, we affirm Montgomery’s
conviction and sentence.
The evidence presented at trial demonstrates that, around
midnight on May 20, 2021, law enforcement officers were called to a
residence in Carroll County. The residence was owned by Donnie
Green and was “generally known” as “kind of a hangout spot where
people go and drink, play cards, just hang out, socialize.” When law
enforcement officers arrived at Green’s house, they encountered
three people in the living room—brothers Jesse and Charles Dallas
and Lisa Miley, Jesse’s ex-girlfriend.2 A fourth person—later
identified as Ricky Cox—was lying unresponsive on the couch in the
living room with “a swollen left eye” and “swelling of his face.” Law
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2 The record reflects that Jesse lived with Green at this house, but Green
was not at home on the night in question.
2
enforcement officers learned from Jesse and Charles that Cox had
been involved in a physical altercation with Montgomery earlier
that night and that Montgomery left Green’s house immediately
after the incident.
According to several witnesses, on the night of May 20,
Montgomery, Cox, Jesse, and Charles were playing a game of cards
in the kitchen of Green’s house. Cox was visibly intoxicated at the
time. During the second hand of the game, Cox refused to play and
accused Montgomery—who was the dealer of that hand—of cheating
by refusing to “show his cards.” Jesse, Charles, and Montgomery
finished playing the hand without Cox, and then, Montgomery “went
across the table and hit [Cox],” who fell to the floor and “didn’t get
up.” 3 Montgomery walked over to Cox and continued hitting and
kicking him while he was “still on the floor.” Jesse tried to stop
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3 At trial, conflicting testimony was given about whether Cox was armed
with a pocketknife at the time of this incident. One witness testified that she
saw Cox reach in his pocket for a pocketknife, and another said he knew Cox
to carry a pocket-knife and saw him with a “folded” pocketknife when he was
laying on the floor. However, several other eyewitnesses said they had never
known Cox to carry a pocketknife, and he did not have a knife on him or
threaten anyone with a knife that night.
3
Montgomery, and after a few minutes, Montgomery stopped striking
Cox and left Green’s house. Cox remained on the floor, “breathing
hard.” Jesse and Charles carried Cox into the living room with the
assistance of Carleton Nunn, who lived in the shed behind Green’s
house, and laid Cox on the couch. Around this time, Miley arrived at
Green’s house, and after noting that Cox was bleeding from his
mouth and seemed to be unconscious, she called 911 and reported
the incident. Law enforcement officers arrived shortly thereafter,
and Cox was transported to the hospital, where he later died from
his injuries. 4 The next morning, Montgomery was arrested for Cox’s
murder.
1. In his first enumeration of error, Montgomery contends that
he is entitled to a new trial because the jury’s verdicts in this case
were repugnant, relying on McElrath v. State, 308 Ga. 104, 111–12
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4 At trial, the medical examiner testified that Cox had areas of bruising
on his face, scalp, and upper body; internal bleeding; 15 fractured ribs; and 4
lacerations of the heart. The medical examiner testified that the cause of death
was “blunt force injuries related to a physical altercation,” and the manner of
death was homicide.
4
(2020). As noted above, Montgomery was charged with malice
murder (Count 1), felony murder predicated on aggravated battery
(Count 2), aggravated assault (Count 3), and aggravated battery
(Count 4) based on Montgomery striking and kicking Cox,
ultimately leading to Cox’s death. The jury found Montgomery not
guilty of malice murder, but guilty of felony murder, aggravated
assault, and aggravated battery. On appeal, Montgomery argues
that, because the jury found him not guilty of malice murder (Count
1), the jury could not legally or logically have found him guilty of
felony murder predicated on aggravated battery (Count 2) because
malice murder and aggravated battery share the same essential
element of malice and Montgomery could not simultaneously have
acted without malice in causing the death of Cox and with malice in
committing the aggravated battery of Cox. We disagree.
“Repugnant verdicts 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.” Caldwell v. State, 317 Ga. 507, 511
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(2023) (quotation marks omitted). We have held that, when verdicts
are repugnant, the guilty verdict must be vacated. See McElrath v.
State, 319 Ga. 539, 540 (2024) (noting that the United States
Supreme Court’s decision in McElrath v. Georgia, 601 US 87, 96
(2024), requires only vacating the guilty verdict).
Here, the jury’s verdicts are not repugnant because they can
“logically co-exist.” Caldwell, 317 Ga. at 511. We have held that
“[t]here is an important difference between the ‘malice’ required for
malice murder and the ‘malice’ required for aggravated battery.”
Pope v. State, 286 Ga. 1, 2–3 (2009). “The former is the unlawful
intention to kill without justification, excuse or mitigation,” and
“[t]he latter is an actual intent to cause the particular harm
produced (that is, bodily harm) without justification or excuse.” Id.
at 3 (quotation marks omitted). Thus, a defendant “might have had
malice in the form of the intent to cause bodily harm with no malice
in the form of the intent to kill, and yet death might still occur; in
such a case the defendant would be guilty of felony murder but not
malice murder.” Id. So here, the jury could have found that
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Montgomery intended to seriously injure Cox (and thus that the
malice element of aggravated battery was satisfied) but did not
intend to kill him (and thus that the malice element of malice
murder was not satisfied). Because the jury’s verdicts could logically
co-exist in that way, they were not repugnant. See id.
Moreover, as noted above, repugnant verdicts require the jury
to have made—in rendering its guilty and not guilty verdicts—
“affirmative findings shown on the record that cannot logically or
legally exist at the same time.” Caldwell, 317 Ga. at 511. And the
record here does not reflect any affirmative findings by the jury as
to its rationale in returning a not guilty verdict on the malice murder
count and a guilty verdict on the felony murder predicated on
aggravated battery count. Compare Guajardo v. State, 290 Ga. 172,
174 (2011) (holding that repugnant verdicts require reversal “in the
rare instance where, instead of being left to speculate as to the jury’s
deliberations, the appellate record makes transparent the jury’s
rationale”). In the absence of such affirmative findings, determining
the basis for the jury’s not guilty verdict on the malice murder count
7
and guilty verdict on the felony murder predicated on aggravated
battery count “would be based on either pure speculation, or would
require inquiries into the jury’s deliberation that the courts
generally will not undertake.” Feder v. State, 319 Ga. 66, 69 (2024)
(quotation marks omitted). See also State v. Owens, 312 Ga. 212,
216–17 (2021) (noting that “inconsistent verdicts”—which occur
“when a jury in a criminal case renders seemingly incompatible
verdicts of guilty on one charge and not guilty on another”—are
permitted to stand “because the jury’s rationale is not apparent from
the record and courts generally are not permitted to make inquiries
into the jury’s deliberation process”). “We cannot know and should
not speculate why a jury acquitted on one offense and convicted on
another offense. The reason could be … compromise or lenity.”
Feder, 319 Ga. at 69 (quotation marks omitted). Likewise, here, we
do not know and will not speculate as to why the jury found
Montgomery not guilty of malice murder, but guilty of felony murder
predicated on aggravated battery. Accordingly, Montgomery’s
repugnant verdict claim fails.
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2. Montgomery next contends that the trial court committed
plain error by instructing the jury that, to prove felony murder, the
State did not have to show that Montgomery acted with malice. In
furtherance of this claim, Montgomery argues that, while such an
instruction is generally correct, it was erroneous here because the
predicate felony of aggravated battery requires proof of malice. We
see no plain error.
During the charge conference in this case, the trial court
advised the parties that it would charge the jury utilizing the
pattern jury instructions, and the parties raised no objection.
Following closing arguments, the trial court so instructed the jury,
specifically charging, in relevant part, the following with respect to
malice murder: “The killing must have been done with malice to be
murder. Malice, as the term is used here, is not necessarily ill will
or hatred. Rather, it is the unlawful intent to kill without
justification.” The trial court then distinguished felony murder from
malice murder, while also incorporating the predicate offense of
aggravated battery, charging the jury, in relevant part, as follows:
9
For felony murder, the State must prove that the
Defendant caused the death of another person by
committing a felony. The State does not have to show that
the Defendant acted with malice to prove felony murder.
Aggravated battery is a felony which I will define for you
shortly. You may find the Defendant guilty of felony
murder if you believe that he caused the death of another
person by committing the felony of aggravated battery
regardless of whether he intended … death to occur.
Thereafter, the trial court instructed the jury on the material
elements of aggravated battery, charging, in relevant part, as
follows:
For aggravated battery, the State must prove that the
Defendant one, maliciously caused bodily harm to
another person, two, by rendering a part of that person’s
body useless.… In deciding whether or not the Defendant
acted maliciously … understand that malice is not ill will
or hatred. Malice, in this context, means an intent to
cause the resulting bodily harm without justification or
excuse. Malice also means willfully doing an act while
aware of a strong likelihood that that particular bodily
harm may result.
On appeal, Montgomery concedes that he did not object to the
jury instructions at trial, so we review this alleged instructional error
for plain error only. See State v. Kelly, 290 Ga. 29, 32 (2011)
(“[U]nder OCGA § 17-8-58(b), appellate review for plain error is
10
required whenever an appealing party properly asserts an error in
jury instructions.”).
“To prevail on plain-error review, an appellant must show that
the alleged instructional error was not affirmatively waived; was
clear and obvious, rather than subject to reasonable dispute; likely
affected the outcome of the trial; and seriously affected the fairness,
integrity, or public reputation of judicial proceedings.” Bowdery v.
State, 321 Ga. 890, 898 (2025) (quotation marks omitted). “If one
prong of the plain error test is not satisfied, we need not address the
other prongs of the test.” Baker v. State, 319 Ga. 456, 462 (2024).
“Satisfying this high standard is difficult, as it should be.” Id.
(quotation marks omitted).
To that end, it is not enough in the plain-error context for
an appellant to demonstrate that a trial court committed
actual legal error in charging the jury; rather, the jury
instruction in question must have an obvious defect rather
than a merely arguable defect. This means that, to show
clear and obvious error, an appellant must cite to
controlling authority or to the unequivocally clear words of
a statute or rule that plainly establish that the trial court
erred.
Bowdery, 321 Ga. at 898–99 (quotation marks omitted).
11
On appeal, Montgomery argues that the trial court charged the
jury that it did not have to find malice for felony murder, but because
the underlying felony of aggravated battery required proof of
“malice,” it effectively instructed the jury that the felony murder
charge did not require proof of the requisite criminal intent to commit
the underlying felony. He contends that this instructional error was
clear and obvious because, to obtain a conviction, the State is
required to prove every element of the crimes charged beyond a
reasonable doubt, and proving the offense of felony murder requires
proof of the elements of the predicate felony. While the trial court’s
jury instruction may have been somewhat confusing in this case and
a better instruction would have explicitly explained the differences in
the malice standards, we disagree that the trial court clearly or
obviously erred in giving the jury instructions here.
To evaluate whether a trial court plainly erred in giving the jury
instructions, “we read and consider the instructions as a whole.”
Holloway v. State, 320 Ga. 653, 659 (2025) (quotation marks omitted).
And, after considering the trial court’s jury instructions as a whole,
12
we conclude that the trial court (1) properly instructed the jury as to
the different meanings of “malice” in the contexts of malice murder
and aggravated battery, see Pope, 286 Ga. at 2–3; (2) properly
instructed the jury that felony murder does not require proof of
malice as that term is defined for malice murder, but does require
proof of the elements of the predicate offense, aggravated battery, see
Burley v. State, 316 Ga. 796, 803 (2023) (“As this Court has explained,
the main difference between felony murder and malice murder is that
felony murder does not require proof of malice or intent to kill.”); (3)
properly instructed the jury that it was required to consider the
predicate offense of aggravated battery and then properly defined
that offense, see OCGA § 16-5-24(a)5; and (4) properly instructed the
jury as to the State’s burden of proof in order to find Montgomery
guilty of aggravated battery, see Burley, 316 Ga. at 804 (holding that
the State was required to prove beyond a reasonable doubt that the
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5 OCGA § 16-5-24(a) provides that “[a] person commits the offense of
aggravated battery when he or she maliciously causes bodily harm to another
by depriving him or her of a member of his or her body, by rendering a member
of his or her body useless, or by seriously disfiguring his or her body or a
member thereof.”
13
appellant committed the predicate offense charged in the
indictment).
Having evaluated the disputed felony murder charge in the
context of the jury instructions as a whole, we conclude that
Montgomery has failed to show that the trial court committed clear
or obvious error in charging the jury in this case. See Sauder v. State,
318 Ga. 791, 804 (2024) (concluding that, “when evaluated in the
context of the jury charge as a whole, the trial court’s failure to
expressly instruct” using the language the appellant suggests “was
not a clear and obvious error beyond reasonable dispute”). And, thus,
we need not analyze the remaining prongs of the plain-error
standard. See Walton v. State, ___ Ga. ___ (2025), S25A0794, slip op.
at 18 (Ga. Aug. 26, 2025) (“[T]his Court need not analyze all prongs
of the plain error standard where the appellant fails to establish any
one of them.”). Therefore, this final claim also fails.
Judgment affirmed. All the Justices concur.
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