Collier v. the State.

• Decision Date: 07 March 2011
• Docket Number: No. S11A0050.,S11A0050.
• Citation: 707 S.E.2d 102,288 Ga. 756
• Parties: COLLIERv.The STATE.
• Court: Georgia Supreme Court

288 Ga. 756

707 S.E.2d 102

11 FCDR 554

COLLIER

v.The STATE.

No. S11A0050.

Supreme Court of Georgia.

March 7, 2011.

Sheueli C. Wang, Atlanta, for appellant.Paul L. Howard, Jr., District Attorney, Bettieanne C. Hart, Peggy R. Katz, Assistant District Attorneys, Thurbert E. Baker, Attorney General, Mary Beth Westmoreland, Deputy Attorney General, Paula K. Smith, Senior Assistant Attorney General, Mary K. Ware, Assistant Attorney General, for appellee.CARLEY, Presiding Justice.

A jury found Lester Collier guilty of the malice murder of Ben Sullen, Jr. The trial court entered judgment of conviction on the guilty verdict and sentenced Collier to life imprisonment. A motion for new trial was denied, and Collier appeals.^*

1. Construed most strongly in support of the verdict, the evidence, including eyewitness testimony, shows that Collier threatened to defend himself by using a pipe against the victim. On the following day, Collier argued with the intoxicated victim in the street and struck him more than once with a metal pole or pipe as the victim started to walk away. Appellant fled, and a three or four-foot long, blood-stained pipe was found leaning against his mailbox. The victim died of blunt force trauma to the head and chest. The evidence was sufficient to authorize a rational trier of fact to find Collier guilty of malice murder beyond a reasonable doubt. Jackson v. Virginia, 443 U.S. 307, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979); Walker v. State, 281 Ga. 521(1), 640 S.E.2d 274 (2007).

2. Collier contends that the trial court erred by excluding evidence of the victim's propensity for violence when intoxicated and his reputation for carrying dangerous weapons.

It has long been established that the victim's general reputation for violence, including his carrying of dangerous weapons, is inadmissible in a murder trial unless the defendant makes a prima facie showing that the victim was the aggressor, that the victim assaulted the defendant, and that the defendant was honestly attempting to defend himself. Alexander v. State, 285 Ga. 166, 167(2), 675 S.E.2d 23 (2009); Cooper v. State, 249 Ga. 58, 61(2), 287 S.E.2d 212 (1982); Campbell v. State, 222 Ga. 570, 573(2), (151 S.E.2d 132) (1966). To meet this three-pronged test, Collier relies upon his own testimony showing that the intoxicated victim started an argument and tried to hit Collier with the pipe before he took it away, that the victim then swung at Collier with his fist, that Collier then struck the victim in the head with the pipe, and that, while the victim was staggering and reaching towards his pocket, Collier struck him on the head a second time with the pipe even though there was nothing to indicate to Collier that the victim had a weapon in his pocket.

Standing alone, this testimony fails to show that Collier was honestly seeking to defend himself either time that he struck the victim with the pipe. See Cooper v. State, supra. Under that testimony, Collier had already disarmed the victim before striking him the first time and, after that first blow by Collier with the metal pipe, the victim neither committed nor demonstrated the ability to commit any further assault against Collier. “Justification can not be based on a deadly assault which has been completely ended, unless the assailant has some further apparent ability to continue it.” Cochran v. State, 9 Ga.App. 824, 825(1), 72 S.E. 281 (1911). “Furthermore, ‘(t)he doctrine of reasonable fear does not apply to any case of homicide where the danger apprehended is not urgent and pressing, or apparently so, at the time of the killing.’ [Cit.]” Carter v. State, 285 Ga. 565, 566(2), 678 S.E.2d 909 (2009). Verbal threats and fisticuffs do not justify the use of deadly force. Felder v. State, 273 Ga. 844, 846(4), 545 S.E.2d 918 (2001); Lewis v. State, 268 Ga. 83, 84(2), 485 S.E.2d 212 (1997). Contrary to Collier's further argument, he is not “permitted to establish the prima facie case of justification by using the very evidence for which the prima facie case serves as foundation.” Walden v. State, 267 Ga. 162, 164(2)(b), 476 S.E.2d 259 (1996).

Collier also complains that the three-pronged test should not be used to determine whether the victim's reputation for violence is admissible, because it is not used to determine whether the jury should be charged on justification. As already indicated, however, that three-pronged test is an essential and longstanding prerequisite to application of the reputation exception to the venerable rule that evidence of a victim's character is inadmissible. We reaffirm the three-pronged test in this context regardless of whether it has a role to play in determining the applicability of instructions on justification. Compare Buice v. State, 281 Ga.App. 595, 598(3), 636 S.E.2d 676 (2006) with Shackelford v. State, 270 Ga.App. 12, 16(2), 606 S.E.2d 22 (2004).

3. Collier urges that the trial court violated OCGA § 24–9–84.1 by admitting into evidence his 1996 convictions for two drug offenses and by failing to enter express findings in the record.

Although Collier himself testified and admitted the drug convictions on direct examination, the record does not contain any previous motion in limine, objection, hearing, or ruling regarding the admissibility of those prior convictions. These omissions certainly are not cured by trial counsel's testimony that, although she was not looking at the transcripts and was speaking strictly from memory, she had been under the impression that the prior convictions would come in. Thus, we are precluded from reviewing this issue on appeal. Dixon v. State, 231 Ga. 33, 36(9), 200 S.E.2d 138 (1973); Mullins v. State, 224 Ga.App. 218–219(2), 480 S.E.2d 264 (1997).

The trial court had no duty to conduct the applicable balancing test in OCGA § 24–9–84.1 absent an objection. Thomas v. State, 291 Ga.App. 795, 800(3), 662 S.E.2d 849 (2008). Even if Collier had previously moved for exclusion of the prior convictions and a hearing had been held, the absence of any ruling on the record would take this case out of the usual rule that the record is preserved and the defendant is not required to object to the evidence during trial. Watson v. State, 278 Ga. 763, 767(2)(b), 604 S.E.2d 804 (2004).

Collier asserts that trial counsel's failure to preserve this issue constitutes ineffective assistance of counsel. However, this claim is waived because it was not raised either in the motion for new trial as amended or at the hearing thereon by appellate counsel who had been appointed following Collier's conviction. Allen v. State, 286 Ga. 392, 399(5)(b), 687 S.E.2d 799 (2010). Moreover, this allegation of ineffective assistance is without merit, as trial counsel's testimony shows that she pursued the reasonable strategy, however mistaken it may appear with hindsight, “ ‘of placing the damaging information before the jury through [Collier's] direct testimony, rather than risk having the information extracted from him on cross-examination.’ [Cits.]” Wilson v. State, 291 Ga.App. 69, 74–75(4)(b), 661 S.E.2d 221 (2008).

4. The following jury charge is enumerated as error:

To impeach a witness is to prove that the witness is unworthy of belief. A witness may be impeached by disproving the facts to which the witness testified or proof that the defendant has been convicted of the offenses of Violation of the Georgia Controlled Substances Act.

Collier contends that, by this charge, the trial court invaded the province of the jury, expressed an opinion, and gave contradictory and confusing instructions on impeachment and credibility of a witness, specifically of Collier. Because Collier “was tried after the effective date of the 2007 amendment to OCGA § 17–8–58 and ‘did not specifically object to (this) charge ... at the conclusion of the jury charge, he has waived his right to urge error on appeal.’ [Cit.]” Madrigal v. State, 287 Ga. 121, 122–123(3), 694 S.E.2d 652 (2010).

Moreover, we find no reversible error, much less any “plain error” pursuant to OCGA § 17–8–58(b), assuming that analysis under that provision is proper in this case. Contrary to Collier's argument that the charge essentially directed the jury that he is unworthy of belief since he was convicted of drug offenses, the charge states that a witness “may be” impeached, not that he “is” impeached, by proof of drug convictions. See Jones v. State, 246 Ga.App. 596, 598(3), 539 S.E.2d 602 (2000). Furthermore, the trial court at no time suggested that it found Collier's testimony less than credible. Nor did it otherwise impermissibly comment on the evidence by simply recognizing that the drug convictions were the only ones offered for impeachment purposes. Shy v. State, 220 Ga.App. 910, 912(3), 470 S.E.2d 484 (1996). Even if the language of which Collier complains was to have the appearance of usurping the province of the jury when considered in isolation, it must be read in conjunction with the immediately following language that “[i]t is for you to determine whether or not a witness has been impeached and to determine the credibility of such witness and the weight the witness's testimony shall receive in the consideration of the case.” Because the charge thereby makes plain that the jury is the sole judge of witness credibility, it “provides no cause for reversal....” Berry v. State, 267 Ga. 476, 480(4)(c), 480 S.E.2d 32 (1997).

Furthermore, because no reversible error occurred with respect to the jury instruction on impeachment, Collier cannot succeed on his alternative claim that trial counsel rendered ineffective assistance in failing to object to that instruction. Jennings v. State, 288 Ga. 120, 123(6)(a)-(b), 702 S.E.2d 151 (2010); Butts v. State, 273 Ga. 760, 771(30), 546 S.E.2d 472 (2001).

Judgment affirmed.

All the Justices concur, except NAHMIAS, J., who specially concurs.NAHMIAS, Justice, specially concurring.

I concur in the result of the majority opinion and join all of it except...