Campbell v. State, S94A0114
| Decision Date | 21 February 1994 |
| Docket Number | No. S94A0114,S94A0114 |
| Citation | 263 Ga. 824,440 S.E.2d 5 |
| Parties | CAMPBELL v. The STATE. |
| Court | Georgia Supreme Court |
Elizabeth C. Calhoun, Augusta, for Campbell.
Daniel J. Craig, Dist. Atty., Augusta, Michael J. Bowers, Atty. Gen., Atlanta, Charles R. Sheppard, Asst. Dist. Atty., Augusta, Susan V. Boleyn, Sr. Asst. Atty. Gen., Atlanta, for the State.
Rachelle L. Strausner, Staff Atty., Atlanta.
After a jury trial, appellant was found guilty of malice murder and possession of a firearm during the commission of a felony. For the former offense, he was sentenced to life, and, for the latter offense, he was sentenced to a consecutive 5-year term. Appellant's motion for new trial was denied and he appeals from the judgments of conviction and sentences entered by the trial court on the jury's guilty verdicts. 1
1. Appellant enumerates the general grounds.
When construed most strongly in support of the guilty verdicts, the evidence would authorize the following findings: While gambling with the victim, appellant lost all of his money. Appellant demanded that his money be returned, but the victim refused. Drawing a gun, appellant ordered the victim to kneel down, and he then placed the gun to the back of the victim's head. A shot was fired, fatally wounding the victim. After shooting and killing the victim, appellant searched through the victim's pockets in an apparent attempt to retrieve the money that he had lost gambling.
This evidence was sufficient to authorize a rational trier of fact to find proof of appellant's guilt beyond a reasonable doubt. Jackson v. Virginia, 443 U.S. 307, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979).
2. Appellant enumerates as error the admission of evidence of his participation in another murder. The contention is that this other murder was not shown to be so similar as to authorize the admission of evidence of his participation therein.
Before any evidence of an independent offense may be introduced, the State must show Williams v. State, 261 Ga. 640, 642(2)(b), 409 S.E.2d 649 (1991). The two murders attributed to appellant were shown to be similar in most material respects. They both took place in the same neighborhood. In each case, the victim was a young male who was shot from behind. In both cases, the victims were killed after an altercation or confrontation and, as they lay dead or dying, their pockets were searched by appellant. The only real distinction between the two murders is that, in the instant case, appellant himself fired the fatal shot, whereas the fatal shot in the other murder was actually fired by appellant's accessory in the crime. This distinction is ultimately immaterial, however, since appellant's guilt of committing the other murder as a party thereto was otherwise clearly shown.
The trial court was authorized to find that the "similarities show a sufficient connection between the two offenses so that proof of the one tends to prove the other." Wooten v. State, 262 Ga. 876, 881(4), 426 S.E.2d 852 (1993). The trial court gave an explicit charge on the limited admissibility of the evidence and there was no error in admitting the evidence for the jury's limited consideration.
3. The trial court's refusal to give appellant's written request to charge on the defense of accident is enumerated as error.
A person shall not be found guilty of any crime committed by misfortune or accident where it satisfactorily appears there was no criminal scheme or undertaking, intention, or criminal negligence.
(Emphasis supplied.) OCGA § 16-2-2. Accordingly, unless there was evidence to authorize a finding that the fatal shot had been fired without any "criminal scheme or undertaking, intention, or criminal negligence" on the part of appellant, the trial court correctly refused to give a charge on the defense of accident.
Under the State's evidence, a charge on the defense of accident would not be authorized, even if appellant did not fire the gun intentionally.
Cocking and aiming a gun at someone's [head] is an utter disregard for the safety of that person and constitutes criminal negligence. Therefore, according to OCGA § 16-2-2, the defense of accident is inapplicable.
New v. State, 260 Ga. 441, 442(1), 396 S.E.2d 486 (1990). See also Brooks v. State, 262 Ga. 187, 188(3), 415 S.E.2d 903 (1992); Stewart v. State, 261 Ga. 654(2), 409 S.E.2d 663 (1991).
Appellant's evidence likewise would not authorize a charge on the defense of accident. If, as appellant seemingly contended, he was misidentified as the perpetrator of the offense, then he did not fire the shot which killed the...
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