The Merger Doctrine
The Merger doctrine is an important tool for Defense Attorneys. Simply put, if a Defendant’s act meets the definition of multiple crimes, the lesser crimes will all merge into the more serious one. To quote the courts, “Merger refers generally to situations in which a Defendant is prosecuted for and determined by trial or plea to be guilty of multiple criminal charges but then, as a matter of substantive double jeopardy law, can be punished — convicted and sentenced for only one of those crimes.”
Unlike most defenses, if your Defense Attorney fails to bring up a Merger issue, the defense is not presumed to be waived. This is because to be convicted of two crimes in violation of the Merger doctrine is illegal, and such a conviction is null and void despite anything a Prosecutor or Defense Attorney says. This bar against waiver is very helpful on appeal, but to get to an appeal you have to first lose your trial. Because of this, it’s important to choose a Defense Attorney who knows and recognizes to raise the Merger issue at the trial stage before you have multiple convictions hanging over your head.
There are two types of Mergers: Mergers as a Matter of Law, and Mergers as a Matter of Fact.
MERGER AS A MATTER OF LAW
Merger as a Matter of Law occurs when the specific verbiage of the statutes requires the same underlying acts. Merger as a Matter of Law is a generally accepted concept throughout America, but specifically codified in Georgia’s criminal code under O.C.G.A. § 16-1-6 and O.C.G.A. § 16-1-7. These are long statutes, but the court has simplified the concept: “if the same conduct establishes the commission of more than one crime the Defendant may be prosecuted for both, but he cannot be “convicted” of more than one if one is included in the other.” Specifically, the test for whether two convictions should merge as a Matter of Law is the “required evidence test”: where the same act or transaction constitutes a violation of two distinct statutory provisions, the test to be applied to determine whether there are two offenses or only one is whether each provision requires proof of a fact which the other does not.
There is an exception to this rule however: if it is the legislature’s clear intent to designate certain crimes as “separate offenses” subject to different punishments, they will not merge. The best example of this is the RICO charges: the very nature of a RICO charge is the commission and completion of multiple crimes, but because the legislature clearly intended for a RICO charge to be a separate entity, the Merger Doctrine will not preclude the predicate charge from resulting in a separate conviction.
MERGER AS A MATTER OF FACT
Merger as a Matter of Fact occurs when the specific details and facts of your case require the same evidence to be used for two distinct convictions, regardless of whether or not the verbiage of the corresponding statutes would satisfy the Merger as a Matter of Law Doctrine. The best example of this is a situation where aggravated battery and aggravated assault could both be satisfied by the facts of your case, which happens often. For example, if an alleged victim was allegedly pistol whipped and is then scarred as a direct result, aggravated battery could be satisfied because of the resulting scar and aggravated assault could be satisfied by the use of a gun during the commission of the act. But because it was one action that satisfied both, the charges would have to merge as a Matter of Fact.
To determine whether two charges are predicated by the same specific actions of the Defendant, the courts will analyze whether the actions were taken in “quick succession” or whether there was a “deliberate interval” between the two actions. For example, if during a home invasion a victim is shot multiple times, the courts will use the “deliberate interval” test. In this situation, a “deliberate interval” may occur if the Defendant is alleged to have shot the victim, ransacked the house, and then subsequently shot the alleged victim again. In such a situation, the Defendant could be charged with two counts of aggravated assaults which would not merge. If, however, the two shots were fired in “quick succession” without anything occurring in between, the Prosecutor would be barred from charging you with two counts of aggravated assault under the Merger doctrine.
Case Law
In Price v. State, a father and son returned to their home to find a smell of cigarette smoke and cigarette butts on the floor, and then discovered two men in the master bedroom. A gunfight ensued in which the home invaders were shooting at them, and the homeowners shot back in self-defense. Price, one of the invaders, shot the owners with a shotgun. The gunshot struck the father in the side, and blew off a finger of the son. The son then attempted to drag his father out of the house. After a delay, Price followed them down the hall and shot the son again. Price was convicted of many counts, including one count of aggravated assault against the son and one count of aggravated battery, both of which were based on the shots fired at the son.
Price argued that these two counts should merge as a Matter of Fact, since they both stemmed from the shootings in the home invasion. The court determined, however, that because the son had left the room between the two shots and Price followed them down the hall after a “deliberate interval”, the two convictions should not merge as a Matter of Fact.
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