Blake v. State

• Court: Georgia Supreme Court
• Writing for the Court: HUNSTEIN
• Citation: Blake v. State, 292 Ga. 516, 739 S.E.2d 319 (Ga. 2013)
• Decision Date: 04 March 2013
• Docket Number: No. S12A1852.,S12A1852.
• Parties: BLAKE v. The STATE.

292 Ga. 516

739 S.E.2d 319

BLAKE

v.The STATE.

No. S12A1852.

Supreme Court of Georgia.

March 4, 2013.

Thomas Sterling Robinson III, Snellville, for appellant.

Elizabeth A. Baker, Luana Popescu Nolin, Sheryl Drake Freeman, Asst. Dist. Attys., Tracy Graham–Lawson, Dist. Atty., Jason Charles Fisher, Assistant Atty. Gen., Paula Khristian Smith, Sr. Asst. Atty. Gen., Samuel S. Olens, Atty. Gen., for appellee.

HUNSTEIN, Chief Justice.

Appellant Derrick Ashley Blake was convicted of felony murder and related charges in connection with the December 2008 shooting death of Marion Turner. Blake appeals the denial of his motion for new trial, asserting error in the trial court's instructions to the jury and in his sentence. Although we find no error in Blake's convictions, which we affirm, we do find error in his sentence, which we now vacate.¹

1. Viewed in the light most favorable to the jury's verdict, the evidence adduced at trial established as follows. On December 23, 2008, Blake went to a bar called The Spot and approached Turner about purchasing some marijuana. When Blake received his purchase, he believed Turner had “shorted” him, informed Turner of this, and left the bar to retrieve his scale. Blake returned to the bar with his scale, Turner added some marijuana to the bag, and Blake again left. Blake soon reentered the bar and threw the bag of marijuana on a pool table near where Turner and three of his friends were standing, claiming that the quantity was still insufficientand asking for his money back. Turner refused, saying words to the effect that if Blake wanted his money back, he should “get [his] pistol.” Blake pulled out a gun, removed the safety and cocked it, and fired two shots, striking Turner in the back and the arm. Turner fell to the ground. Blake stepped over him and exited the bar. The shot to Turner's back was fatal.

Several eyewitnesses identified Blake as the shooter, and Blake does not dispute this fact. Blake testified at trial that he shot Turner only after Turner flashed a gun at him during their argument. However, no gun was recovered from Turner's body or the crime scene, and a surveillance video that captured part of the altercation showed no gun visible on Turner's person in the moments before the shooting. Turner's three companions all testified that Turner was not armed at the time of the shooting. Construed most favorably to the verdict, the evidence was sufficient to enable a rational trier of fact to conclude beyond a reasonable doubt that Blake was guilty of the crimes of which he was convicted and was not acting in self-defense. Jackson v. Virginia, 443 U.S. 307, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979); see also Allen v. State, 290 Ga. 743(1), 723 S.E.2d 684 (2012).

2. Blake contends that the trial court erred by failing to instruct the jury expressly that justification may serve as a defense to all crimes, including possession of a firearm by a convicted felon. See Smith v. State, 257 Ga. 468(3), 360 S.E.2d 591 (1987). Blake failed to object at trial to the court's initial instruction in this regard and likewise failed to object to the court's recharge in response to a jury question on this specific issue. Thus, he failed to preserve this objection for appellate review and is entitled to reversal only if the jury instruction constituted “plain error.” OCGA § 17–8–58(b); State v. Kelly, 290 Ga. 29(1), 718 S.E.2d 232 (2011). Plain error will be found only if the jury instruction was erroneous; the error was obvious; the instruction likely affected the outcome of the proceedings; and the error seriously affects the fairness, integrity, or public reputation of judicial proceedings. Id. at 29(1), 718 S.E.2d 232.

Here, we find no error in the court's instructions regarding justification, which were given as part of the court's general charge, prior to its delineation of the specific counts in the indictment, and which tracked the language of the pattern charge. See Suggested Pattern Jury Instructions, Vol. II: Criminal Cases (2007), §§ 3.10.10, 3.10.12, 3.10.13. During deliberations, the jury sent a note to the trial court asking “if [Blake] is found not guilty due to self defense, can he be charged with any of the other charges?” The trial court responded that “you are to apply the law that I gave you in the charge to each count of the indictment ... and you're to consider each count separately.” This being an accurate statement of the law, we find no error, much less any plain error, and thus this enumeration is without merit.

3. Blake next contends that the trial court erred in refusing his request to give a jury charge on voluntary manslaughter. Blake did properly preserve this issue for appeal by restating his objection after the court gave its instructions. See OCGA § 17–8–58(a). When instructing the jury in a murder case, a trial court is required to grant the defendant's request for a charge on the lesser included offense of voluntary manslaughter if there is any evidence, however slight, to support such a charge. Gillespie v. State, 236 Ga. 845, 225 S.E.2d 296 (1976). Whether such slight evidence exists is a question of law. Id. The crime of voluntary manslaughter is committed when one kills “solely as the result of a sudden, violent, and irresistible passion resulting from serious provocation sufficient to excite such passion in a reasonable person.” OCGA § 16–5–2(a). “The distinguishing characteristic between voluntary manslaughter and justifiable homicide is whether the accused was so influenced and excited that he reacted passionately rather than simply to defend himself.” Woody v. State, 262 Ga. 327, 328(2), 418 S.E.2d 35 (1992).

Accordingly, the question here is whether there was slight evidence that Blake shot Turner as the result of a provocation that triggered in Blake some “irresistible passion.” Blake testified unequivocally that he shot Turner in self-defense, out of fear for his life. He testified that during the incident he was not upset and never became hostile; that he asked Turner for his money back in a “simple, respectful manner”; and that, once the dispute began, he “wanted to just leave.” Though Blake also testified that he believed Turner was drawing a gun and that he was intimidated by the presence of Turner's three friends, whom he suspected might also be armed, there is no evidence that this fear, whether reasonable or not, rose to the level of “irresistible passion” necessary to support a charge on voluntary manslaughter. See Bell v. State, 280 Ga. 562(5)(a), 629 S.E.2d 213 (2006) (defendant's fear of attack by victim bore no hallmarks of passion necessary to...