Asbury v. State, 70140

• Decision Date: 08 July 1985
• Docket Number: No. 70140,70140
• Parties: ASBURY v. The STATE.
• Court: Georgia Court of Appeals

Page 194

333 S.E.2d 194

175 Ga.App. 335

ASBURY v. The STATE.

No. 70140.

Court of Appeals of Georgia.

July 8, 1985.

Nan Marie Deegan, Jonesboro, for appellant.

Robert E. Keller, Dist. Atty., Albert B. Collier, Asst. Dist. Atty., for appellee.

POPE, Judge.

Charles Raymond Asbury was indicted and tried for malice murder. He brings this appeal following his conviction of voluntary manslaughter. Held:

1. Appellant raises several enumerations of error challenging the sufficiency of the evidence to support his conviction of voluntary manslaughter. Construed in a light most favorable to the State, the evidence adduced at trial showed that on May 17, 1983 Denise Getty drove up in front of the victim's apartment building to pick up her child. The victim, Tony Massingill, went to her car to talk to her about another car she had for sale. Appellant exited his apartment, got into his car and started it. Appellant began backing his car but could not continue because the end of Getty's car was behind appellant's car. Appellant was told to wait a second when he then backed his car into Getty's car causing a collision. Massingill stood up and told appellant they were about to move and took a few steps toward appellant's car. A "heated conversation" or argument began which took just a few seconds, and Massingill moved to a position halfway between the two cars. There was testimony that these two men did not like one another and had had words in the past. Appellant then brought a gun up to the window of his car and began firing. At this time Massingill was approximately two feet from appellant's car. When the first shot was fired, Massingill turned away from appellant's car. Appellant continued firing three or four more shots at Massingill. After the last shot was fired, Massingill fell to the ground. Appellant then backed his car out of the parking space and left the scene. Massingill had been shot once in the back of the neck and once in the middle of the back. The bullet that entered the back of the neck had a downward path which terminated in the covering of the heart. Massingill died from internal bleeding caused by this wound.

Appellant's sole defense at trial was self-defense. He testified that Massingill reached into his (appellant's) car, pushing him down on the seat and choking him to a point where he was in fear of his life. Appellant reached under the front seat of his car, retrieved his gun and began firing the gun until Massingill released his grip and removed himself from the car.

"A person commits voluntary manslaughter when he causes the death of another human being under circumstances which would otherwise be murder, if he acts solely as the result of a sudden, violent and irresistible passion resulting from serious provocation sufficient to excite such passion in a reasonable person. See OCGA § 16-5-2 (cit.). The jury here, first of all, determined a lack of malice but found there was evidence that [appellant] acted solely as the result of a sudden, violent, and irresistible passion 'resulting from serious provocation sufficient to excite such passion in a reasonable person,' [rejecting], however, the contentions of [appellant] as shown by his evidence that he did so under the fears of a reasonable man in order to protect his person ... [Cit.] As the evidence did not demand a finding that [appellant's] actions were justified, as self-defensive measures, the jury's verdict was authorized. [Cits.] We have carefully examined the record and transcript and conclude that under the evidence presented at trial [any] rational trier of fact could reasonably have found [appellant] guilty beyond a reasonable doubt of the offense of voluntary manslaughter. [Cits.]" Miller v. State, 166 Ga.App. 639, 640-41, 305 S.E.2d 172 (1983). See Hutchins v. State, 171 Ga.App. 309(1), 319 S.E.2d 130 (1984); Glass v. State, 167 Ga.App. 749(1), 307 S.E.2d 287 (1983); Guest v. State, 155 Ga.App. 374(2), 270 S.E.2d 904 (1980); Richards v. State, 152 Ga.App. 201(8), 262 S.E.2d 469 (1979). Compare Murff v. State, 251 Ga. 478, 306 S.E.2d 267 (1983), wherein the evidence at trial disclosed no "sudden, violent, and irresistible passion," an element of the crime of voluntary manslaughter the proof of which was necessary in order to sustain Murff's conviction. The court found that the facts of record showed that Murff acted with the sole motive of protecting himself and others, not out of any "heat of passion." In the case at bar on the other hand, the evidence was not conclusive as to the issue of self-defense. See generally Smith v. State, 142 Ga.App. 82, 235 S.E.2d 44 (1977).

2. Appellant's remaining enumerations of error level a barrage of criticism upon the adequacy and correctness of the trial court's charge to the jury. The following standards are applicable to these enumerations. "Though present law exempts the defendant in a criminal case from the strict requirements imposed on litigants in civil cases to preserve an issue on the giving or the failure to give instructions to the jury[,] this does not relieve him from the necessity of requesting instructions except in...