Leutner v. State

• Decision Date: 11 September 1975
• Docket Number: No. 30111,30111
• Citation: 218 S.E.2d 820,235 Ga. 77
• Parties: Christopher Edward LEUTNER v. The STATE.
• Court: Georgia Supreme Court

Page 820

218 S.E.2d 820

235 Ga. 77

Christopher Edward LEUTNER v. The STATE.

No. 30111.

Supreme Court of Georgia.

Sept. 11, 1975.

Mullis, Reynolds, Marshall & Horne, Gerald S. Mullis, Macon, for appellant.

Fred M. Hasty, Dist. Atty., Walker P. Johnson, Jr., Asst. Dist. Atty., Macon, Arthur K. Bolton, Atty. Gen., Julius C. Daugherty, Jr., Staff Asst. Atty. Gen., Atlanta, for appellee.

UNDERCOFLER, Presiding Justice.

Appellant, Christopher Edward Leutner, was indicted for felony murder and murder with malice in the same count. He was convicted by the jury of felony murder and sentenced to life imprisonment. He appeals from the denial of his motion for new trial.

The evidence shows that sometime prior to July 24, 1974, the defendant obtained a quantity of marijuana and some other drugs. On the morning of the 24th a couple of defendant's friends came to his house, smoked marijuana and then left. Later the defendant went to a bowling alley, the Macon Bowl in Shurlington Plaza, Macon, Georgia, talked to several of his friends about the marijuana he had at home and then departed for his home with them. They smoked until 9:00 or 9:30 p.m. when they all went back to the bowling alley. Defendant was shooting pool sometime later when several of the others said they were going to a party and left without the defendant. Six persons got into one of their cars and drove to the defendant's house. They were Hugh Eden, Phil Justice, Danny Ray Bell, Frankie Linderman, Tony Logue and David Foster. The defendant's stepbrother was there when they arrived. Two or three of them went in first and David Foster later decided to go in to use the telephone. He knocked on the front door and when the stepbrother answered the door, the others on the inside took a bag of drugs from the kitchen without the awareness of defendant's stepbrother. Later they went back to the car and divided the contents of the bag.

The defendant remained at the bowling alley until it closed at midnight. When he went home, he discovered the bag containing drugs was missing and questioned his stepbrother about it. His stepbrother told him of the earlier visit by his friends and described them to him.

The defendant went to the bowling alley the next morning around 10:00 or 11:00 and took his father's pistol with him. He discovered that David Foster, the deceased, fit the description given by his stepbrother. The defendant talked to several persons about being 'ripped off' the night before and patted a bulge in his pocket which resembled a gun.

Defendant questioned Danny Bell at pistol point behind the bowling alley and elicited a promise that Bell would help him find who had stolen the drugs.

David Foster, the deceased, showed up at the bowling alley around 8:00 p.m. on the 25th while the defendant was shooting pool. The defendant invited Foster outside to smoke a joint with him. Danny Ray Bell was present and the three of them went out behind the bowling alley and sat down on some steps in a wooded and rather seculded area behind the bowling alley. The defendant handed Foster a bag of marijuana and told him to roll one. Defendant then pulled a gun, cocked it and pointed it at Foster's head, who was sitting below and in front of the defendant on the steps. There was some conversation in which the appellant asked Foster about his marijuana. Foster denied taking it and said he could prove by defendant's stepbrother that he had not taken it. Defendant told Bell to 'get us a car.' Danny Ray Bell turned and went up the steps. As he neared the top he heard a shot. Both the defendant and Bell fled from the scene leaving Foster lying mortally wounded on the steps where he was discovered a short time later by an eleven-year-old boy. At approximately 9:45 p.m. the defendant called the police department and surrendered. He produced the fatal weapon for the police and helped recover the spent cartridge. Foster was killed by a bullet wound over the left eye.

The defendant testified that he shot the deceased but claimed the hammer of the weapon slipped and the shooting was an accident. There was evidence that the hammer was subject to slip in taking the hammer from the cocked position to the uncocked position. The hammer had at one time been broken and had been modified with the addition of a piece of plastic substance. There was also evidence that the weapon operated properly under test conditions.

Although appellant does not argue the general grounds, the foregoing recitation of the facts is necessary to an understanding of the appellant's enumerations of error. Additional facts will be developed as required. Held:

1. Enumerated error number 1 merely alleges error by the trial court in overruling appellant's motion for new trial, as amended. Specific grounds are incorporated into the other enumerations.

2. Enumerated error number 2 alleges the court erred in overruling appellant's demurrer to the indictment in that the indictment charged appellant with two separate and distinct crimes, viz., felony murder and murder with malice and being two separate and distinct crimes they should be embraced in separate counts if the appellant is to be called upon to defend said indictment.

Ga.Code Ann. § 26-1101 (Acts 1968, pp. 1249, 1276) embraces both (a) murder with malice and (b) felony murder.

This court has long held that where one offense could be committed in several ways, it is permissible to incorporate the different ways in one count. Heath v. State, 91 Ga. 126, 16 S.E. 657; Long v. State, 12 Ga. 293; Thomas v. State, 59 Ga. 784; Hall v. State, 8 Ga.App. 747, 70 S.E. 211. The trial court did not err in overruling appellant's demurrer.

3. Enumerated error numbers 3, 4, 6 and 7 concern the admission of testimony relating to other offenses tending to place the appellant's character in issue.

The evidence objected to consisted of:

a. As to Enumeration 3: Witness Phil Justice testified that prior to the commission of the crime charged he went to appellant's house 'to buy a bag of pot.'

b. As to Enumeration 4: Witness Frank Linderman testified that the appellant said he was going to find out the person that got it and he was going to get it back from them and Linderman continued and stated 'and I knew that (appellant) carried a gun because I've seen it before.'

c. As to Enumeration 6: On cross-examination the prosecutor elicited information as to how appellant came into possession of these drugs, the purchase of the drugs, and the price paid and owed for them.

d. As to Enumeration 7: The prosecutor elicited from the appellant the statement that the appellant had sold drugs before and the implication that appellant had planned to sell these drugs.

After Phil Justice testified that prior to the commission of the crime charged he went to appellant's house 'to buy a bag of pot,' the defense moved for a mistrial and specifically requested that no cautionary instruction be given to the jury if the mistrial was not granted thereby effectively waiving any claim to harm by this testimony. A mistrial was not demanded because there was no indication from whom he was going 'to buy a bag of pot.'

Evidence of appellant's transactions in the drugs which he was trying to recover from the victim was relevant and admissible to shed light on the appellant's bent of mind and motive in confronting the victim. '(W)here such evidence of other criminal transactions is part of the res gestae or tends to show motive or to show a course of conduct pointing toward and leading to the crime' it is admissible notwithstanding that it incidentally places the (appellant's) character in issue. Foster v. State, 230 Ga. 666, 198 S.E.2d 847; Spurlin v. State, 228 Ga. 2, 183 S.E.2d 765; Pass v. State, 227 Ga. 730, 182 S.E.2d 779.

Testimony concerning the appellant having been seen with a gun at an unrelated time was not admitted and the trial court twice instructed the jury to disregard the statement. See Young v. State, 226 Ga. 553, 176 S.E.2d 52.

Enumerations 3, 4, 6 and 7 are without merit.

4. Appellant's brief contains no argument or citation of authority in support of his complaint of alleged hearsay testimony regarding the theft of drgus and Enumeration 5 is considered abandoned. Supreme Court Rule 18(c), 226 Ga. 905, 914; West v. State, 229 Ga. 427, 192 S.E.2d 163; Mitchell v. State, 226 Ga. 450, 175 S.E.2d 545.

5. Enumerated error numbers 8 through 16 complain of instructions given to the jury and refusal to give the appellant's requests to charge on aggravated assault, pointing a pistol at another, and simple assault.

Where the charge given substantially covers the applicable principles, failure to give requested instructions in the exact language requested is not error. McClendon v. State, 231 Ga. 47, 199 S.E.2d 904; Young v. State, supra; Jackson v. State, 225 Ga. 553, 170 S.E.2d 281.

From a reading of the enumerated errors concerning the instructions given, the thrust of appellant's position is that the trial court erred in instructing by overemphasizing aggravated assault as a felony, by failing to distinguish clearly between aggravated assault and simple assault, and that he indicated an opinion by the gestures of taking his glasses off and gesturing while instructing on aggravated assault and felony murder.

The instructions given provided the proper guidance for the jury in reasonable balance between the degrees of homicide without overemphasizing any degree of homicide. The trial judge properly tailored his charge on felony murder to that in the commission of an...