Hopkins v. State
| Decision Date | 20 September 1993 |
| Docket Number | No. S93A0824,S93A0824 |
| Parties | HOPKINS v. The STATE. |
| Court | Georgia Supreme Court |
Robert Waller, Stone Mountain, for Hopkins.
Michael J. Bowers, Atty. Gen., Atlanta, Daniel J. Porter, Dist. Atty., Dan W. Mayfield, Asst. Dist. Atty., Lawrenceville, Peggy R. Katz, Staff Atty., Atlanta, for the State.
The appellant, David Hopkins, was found guilty of the felony murder of his ex-wife and sentenced to life in prison. 1 On appeal Hopkins raises numerous issues that he contends warrants reversal of his conviction. We find no error and affirm.
Hopkins and the victim were married in 1980 and divorced in 1991. However, after the divorce Hopkins and the victim began living together again. About midnight on March 31, 1992, Officer Pam Grimes of the Gwinnett County Police Department was called to the house where Hopkins and the victim lived. Officer Grimes asked Hopkins, who was standing in the driveway, what had happened. He responded that he and his wife had been arguing; that he pulled a gun out of a dresser and pulled the hammer back; that his wife's hand hit the gun, causing it to discharge accidentally; and that the bullet struck his wife in the head.
Officer Grimes read Hopkins his Miranda rights. After doing so, the officer asked Hopkins if he wished to talk with the police without a lawyer. He stated that "he didn't think he should say anything without retaining a lawyer." Officer Grimes testified she did not ask Hopkins any questions. Grimes was assigned to drive Hopkins to the police station, and she did so about 15 minutes after reading Hopkins his rights. Hopkins was seated in the back of her patrol car, and was not handcuffed. According to Grimes, Hopkins leaned forward and asked her if he could talk to her. She said, "sure," and Hopkins then told her that that night he had become angry at the victim because she had not been to the grocery store that day and had not put sheets on their bed. Hopkins and his ex-wife argued and he went to the dresser that was in the bedroom, opened a drawer and threw some of her clothes at her and told her to get out. He then pulled out a gun that was in the dresser drawer, pointed it at her, and shot her in the head.
After Officer Grimes drove Hopkins to police headquarters, Officer Tkacik took custody of Hopkins. Subsequently, Officer Tkacik read Hopkins his Miranda rights and asked him if he understood each one of them. Officer Tkacik testified that Hopkins said he understood each one and agreed to talk with Tkacik. Hopkins stated that he became angry at his ex-wife because she did not have sheets on the water bed and had not purchased groceries. He added that they argued for a while and then his ex-wife said she was going to leave. He then opened the top drawer of her dresser, picked up a handful of her clothes, and tossed them at her. At that time a gun discharged and the bullet struck his ex-wife. Hopkins said that he did not realize the gun was in the top drawer when he grabbed the clothes. According to Hopkins, the gun fired from a distance of six or seven feet from the victim.
At trial Hopkins testified that on the evening of the shooting he asked the victim if she had bought groceries that day. She responded that she had not. He said they began to argue and each threatened to leave the other. According to Hopkins, he picked up a handful of the victim's clothes out of a dresser drawer and threw them on the bed. He testified that the gun apparently was in the clothes because, when he threw them, the gun fell on the bed. He then saw the victim moving for the gun, at which time he also reached for the gun. He added that that was when the gun went off. Hopkins testified that he could not remember whether he or the victim got to the gun first or whether he or the victim actually obtained possession of the gun. He believed that the gun fired accidentally.
The medical examiner who performed an autopsy on the victim testified that the victim died of a gunshot wound between the eyes. The medical examiner added that stippling around the wound indicated that the gun probably had been fired from one to six inches from the victim and in any event not over ten inches.
Moreover, the state's ballistic's expert testified that the murder weapon could be fired by a single-action or double-action trigger pull. Firing the gun in single action required three pounds of pressure on the trigger; firing the gun in double action required nine pounds of pressure. He added that the gun also had two safety mechanisms that made it difficult for the gun to discharge accidentally. He testified that if the gun were cocked with the hammer back a strong blow could possibly override both safety mechanisms and the gun would fire. However, he said that he could determine if the gun had ever accidentally discharged because, if it had, the gun would not operate properly thereafter. According to him, the murder weapon had never accidentally discharged. Moreover, he testified that, based on the stippling pattern, the victim had been shot from two to three inches.
The state also introduced an incriminating statement that Hopkins made to an inmate who was in jail with Hopkins after the shooting. The inmate testified that Hopkins told him that after he and the victim argued, he began throwing some of the victim's clothes out of the dresser drawer. Hopkins saw the gun in the drawer, pulled it out, and told the victim, "I'll kill you, you SOB." Hopkins told the inmate that he pulled the trigger once but the gun did not fire, so he pulled the trigger again. Hopkins said, "I shot that bitch right there."
1. Having reviewed the evidence in the light most favorable to the verdict, we conclude that a rational trier of fact could have found the defendant guilty of felony murder beyond a reasonable doubt. Jackson v. Virginia, 443 U.S. 307, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979).
2. In his first enumeration of error, Hopkins raises an issue based on Edge v. State, 261 Ga. 865, 414 S.E.2d 463 (1992). Hopkins acknowledges that the trial court did not give a sequential charge on felony murder and voluntary manslaughter. Instead, he contends that the court should have "admonished [the jury] that if it finds provocation and passion with respect to the act which caused the killing, it could not find felony murder, but would be authorized to find voluntary manslaughter." Edge at 867, fn. 3, 414 S.E.2d 463. However, we conclude that Hopkins is procedurally barred from asserting as error the trial court's failure to give such a charge.
In McCoy v. State, 262 Ga. 699, 700-01(2), 425 S.E.2d 646 (1993), we held that when the trial court asks a defendant whether he has any exceptions to the court's charge, a defendant may preserve his objections to the charge by making specific objections at trial or by reserving his right to object on motion for new trial or on appeal. In this case, when the trial court asked for objections to the charge, Hopkins did not reserve his right to...
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