Bates v. State

• Decision Date: 12 November 2002
• Docket Number: No. S02A0969.,S02A0969.
• Citation: 572 S.E.2d 550,275 Ga. 862
• Parties: BATES v. The STATE.
• Court: Georgia Supreme Court

572 S.E.2d 550

275 Ga. 862

BATES v. The STATE.

No. S02A0969.

Supreme Court of Georgia.

November 12, 2002.

Reconsideration Denied December 13, 2002.

Valpey & Parks, Gregory W. Valpey, Carey, Jarrard & Walker, Lucy K. Henry, Gainesville, for appellant.

Lydia J. Sartain, Dist. Atty., Jennifer C. Bagwell, Asst. Dist. Atty., Thurbert E. Baker, Atty. Gen., Jennifer S. Gill, Asst. Atty. Gen., for appellee.

HINES, Justice.

Clifton Boyd Bates ("Bates") appeals his convictions for felony murder and possession of a firearm during the commission of a felony.¹ For the reasons that follow, we affirm in part, and remand.

Construed to support the verdicts, the evidence showed that Bates's brother Matt suggested to Bates, then 19 years old, that he get a job to help pay bills. Bates was not working; he and Matt had agreed that Bates would attend school while Matt worked, and then Bates would work while Matt completed school. However, Bates was not attending school regularly. An argument ensued involving Bates, Matt, their sister, and their mother, Mary. During the argument, it was suggested that Matt was withholding funds from his pay. At one point, Bates said: "Maybe we should just shoot Matt." After the argument, Matt followed his mother, Mary, outside. They walked a short way down the road and turned back home. Bates drove by them in his car, but Mary signaled him to turn around and go home. When Matt and Mary got home, Matt went back to his room, sat on his bed, and smoked a cigarette. Shortly thereafter, Bates came into Matt's room with a .45 caliber pistol in his hand. Matt and Bates continued to argue and Bates told Matt to leave him alone about getting a job.

At trial, Mary testified that she was behind Bates, and did not remember seeing the shooting, or much of what occurred immediately before or after it. However, at Matt's funeral, Mary told a family friend that Bates placed the pistol at Matt's head and told him that if Matt did not give Bates the money Bates would "blow his brains out." Matt said to Bates words such as: "You might as well go ahead and shoot me. You've been threatening me for years to do it." Bates then pulled the trigger. Mary also spoke to her sister several hours after the shooting. Mary told her sister that when Bates went to Matt's door, Mary told him to put the pistol away, but he did not. Matt then said to Bates: "I haven't done anything wrong to you, Boyd. I just want you to help me. Since you were about 12 years old, something happened to you. You've gotten worse and worse. You've tormented me for years. If you're going to do it, do it." Bates then raised the pistol and fired. Mary told investigating police officers that she wanted to get between her sons, but that the gun "went up and shot" too quickly. She opined that it happened so quickly that even Bates did not know that "he did it `til he did it."

Matt died from a single bullet wound to his head, fired from approximately a foot away. There was physical evidence from which the jury could infer that he was turning his head and closing his eyes when shot. On several previous occasions, Bates had pointed weapons at Matt and threatened him. Bates was in the habit of carrying a firearm that was loaded and ready to fire, with the safety off, even inside the home. Approximately two dozen firearms were found in the home, most under Bates's control, although many were the property of Mary, having been owned by Bates's late father.

Bates told investigating police officers that the pistol went off when he was trying to place it on a dresser, and demonstrated how that occurred. When the officers informed him that such an action was inconsistent with the physical evidence, Bates then said that "maybe" he was trying to hit Matt with the pistol when it went off, and demonstrated such an action to the officers. When again informed that the physical evidence did not match that account, Bates stated that he brought the pistol up from his side to point at Matt's head, intending to tell Matt to leave him alone, but that he did not pull the trigger. Bates posited that the weight of the pistol went against his trigger finger as he brought the pistol up, causing it to fire. The pistol weighed two pounds and two ounces, and required four and three-fourths pounds of pressure to pull the trigger and activate the hammer; the pistol required pressure on both the trigger and the back strap to fire. In repeated attempts, two experts were unable to make the pistol fire in the manner last described by Bates.

Bates testified to the same effect as the last version he told investigating officers. According to Bates's testimony, Matt's last words were: "I'm tired of you threatening me, Boyd. You've been bullying me since I was 12 years old. If you're going to shoot me, just go ahead and shoot me. You'd be doing me a favor."

1. The evidence was sufficient to enable a rational trier of fact to find Bates guilty beyond a reasonable doubt of the crimes for which he was convicted. Jackson v. Virginia, 443 U.S. 307, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979).

2. Bates contends that the trial court should have granted his request to charge the jury on the crime of reckless conduct. However, Bates testified that he intended to point the loaded pistol at Matt and tell Matt to leave him alone. Thus, he did not act with the requisite mental state to support a charge on reckless conduct. Savage v. State, 274 Ga. 692, 695(3), 558 S.E.2d 701 (2002); Stobbart v. State, 272 Ga. 608, 611(3), 533 S.E.2d 379 (2000). See also Rhodes v. State, 257 Ga. 368, 370(6), 359 S.E.2d 670 (1987).

3. The indictment charged Bates with aggravated assault, and with felony murder in the commission of aggravated assault, "by shooting" Matt. The court charged the jury that a simple assault is an act that places another person "in reasonable apprehension of immediately receiving a violent injury," and that an aggravated assault occurs when one "assaults another person with a deadly weapon." Bates contends that the jury was thus instructed that he could be found guilty of committing aggravated assault in a manner not charged in the indictment, as simple assault can be committed either by placing the victim in reasonable apprehension of receiving a violent injury, or by committing, or attempting to commit, a violent injury to the victim. But a court's instruction on aggravated assault necessarily includes the law on simple assault, and the statement in the indictment that Bates committed the aggravated assault "by shooting" Matt, together with the evidence presented, raised the possibility of assault in the manner in which the court instructed the jury. Ross v. State, 268 Ga. 122, 125(6), 485 S.E.2d 780 (1997), overruled on other grounds, Bishop v. State, 271 Ga. 291(2), 519 S.E.2d 206 (1999).

4. Bates contends that the trial court erred in responding to two jury questions. First, when asked to clarify "reasonable apprehension," the court answered in part, that "the law of Georgia does not appear to require fear as an element of apprehension." Although Bates argues that, in the context of the statutory definition of assault, the victim...