Coney v. State, A07A1666.
| Decision Date | 19 March 2008 |
| Docket Number | No. A07A1666.,A07A1666. |
| Citation | 659 S.E.2d 768,290 Ga. App. 364 |
| Parties | CONEY v. The STATE. |
| Court | Georgia Court of Appeals |
Mark B. Beberman, for appellant.
Steven Askew, District Attorney, Matthew P. Brown, Assistant District Attorney, for appellee.
Patrick Coney appeals his convictions of aggravated assault and cocaine possession, contending that the trial court erred by admitting certain evidence, by failing to adequately charge the jury on aggravated assault, and by rejecting his claim of ineffective assistance of counsel. For reasons that follow, we reverse. Because the evidence was sufficient, Coney may be retried.
The state's evidence showed that on the night of March 7, 2003, a uniformed police officer stopped Coney for driving a car with no taillight. A male was sitting in the front passenger seat, and a woman was sitting in the back seat. Coney could produce no driver's license and instead gave the officer his name and birthdate. As the officer was checking whether a valid driver's license existed under that name and birthdate, Coney sped away.
The officer pursued Coney, who exited his car during the chase and was struck to the ground by the officer's patrol car. Coney's passengers complied with the officer's command to exit the car and stand by it. When the officer approached Coney to check on him and to arrest him, Coney "jumped up," struck the officer several times, and tried to flee. The officer caught Coney, and during their ensuing fight, Coney began reaching for the officer's gun. Coney's male passenger and a police officer who had arrived as backup heard the officer in the fight shout that Coney was going for his (the officer's) gun. The officer struggled to maintain control of his gun, instructing Coney to release the weapon. Coney did not. The officers testified that Coney threatened to kill them and himself; Coney's male passenger did not hear Coney say anything. During their struggle, a gunshot rang out; the officer's hand was shot. The officer testified, "I disengaged from the subject and advised [the backup officer] that I'd been hit." The officer's gun fell to the ground, and Coney grabbed it. The backup officer saw Coney pointing the gun at the other officer and then shot Coney in the back.
Coney was transported to a hospital. During a search of his car that night, a "white plastic tube similar to ... a Chapstick tube" was found under the driver's seat; the tube contained a substance that appeared to be crack cocaine. Later that same night, while Coney was unconscious, a police officer directed hospital personnel to obtain a sample of Coney's urine and blood. His urine sample tested positive for cocaine, a cocaine metabolite, and marijuana; his blood sample tested positive for cocaine and marijuana metabolites; and the substance contained in the tube found under the driver's seat was confirmed to contain cocaine.
Coney testified: He drove away from the traffic stop because he was afraid to be in a dark, isolated location with a police officer who he believed had brutalized his uncle. When he stopped "around the corner" at a nearby, lighted place with other people, the officer's patrol car rammed into his door, causing it to open. He stepped out of the car; the patrol car struck him; and Coney felt a sharp pain on the side of his body and therefore lay on the ground. Attempting to handcuff Coney, the officer pressed Coney to the ground such that Coney began having difficulty breathing and became dizzy. Because his complaints to the officer led to no relief, Coney tried to get up. Coney's next memory was awakening in the hospital 16 days later. In addition to gunshot wounds he had sustained broken ribs and punctured lungs.
Coney denied having any drugs in the car. He testified that the car belonged to his father; that his father and four siblings drove the car at times, although he had been using it during the preceding week; that he had not known his passengers well on the day of the incident; that he did not know whether either of them had drugs; and that the back seat passenger was sitting behind the driver's seat, screaming because she, too, was afraid.
Coney was indicted and found guilty of (i) aggravated assault, by "unlawfully [making] an assault upon the person of [a police officer] with a pistol, a deadly weapon, said person being ... engaged in his official duties, by shooting said officer;" and (ii) cocaine possession.1
1. Coney contends that the trial court failed to adequately instruct the jury on the offense of aggravated assault. He argues that the final charge was incomplete as to aggravated assault because it did not define an essential element: "assault." In addition, Coney asserts that the absence of this definition from the final charge allowed the jury to impermissibly substitute criminal negligence for the requisite intent.
OCGA § 16-5-21 defines that aggravated assault is committed when a person "assaults: (1) With intent to murder, to rape, or to rob; (2) With a deadly weapon or with any object, device, or instrument which, when used offensively against a person, is likely to or actually does result in serious bodily injury." "Assault" is defined in OCGA 167; 16-5-20(a): "A person commits the offense of simple assault when he or she either: (1) Attempts to commit a violent injury to the person of another; or (2) Commits an act which places another in reasonable apprehension of immediately receiving a violent injury."
In this case, the court instructed the jury that "a person commits the offense of aggravated assault when that person assaults another person with a deadly weapon,"2 tracking the first sentence of the applicable pattern jury instruction defining aggravated assault.3 The court did not charge, however, the remaining portion of the pattern jury instruction, which would have provided the jury with the statutory definition of "assault."4 Coney argues that the trial court thus failed to charge the jury on essential elements of the offense of aggravated assault.
In 1980, the Supreme Court of Georgia found in Sutton v. State5 6 In so holding, the Court relied upon State v. Siebert,7 although Siebert pertained to the sufficiency of language used within an indictment, not to language used within a final charge to the jury.8 And as recently as 1997, the Court relied upon Sutton to summarily reject an appellant's "contention that he [was] entitled to reversal of his conviction because of the trial court's failure to define simple assault as a part of its instruction on aggravated assault."9
Meanwhile, in 1996, the Court held in Smith v. Hardrick,10 "Under the Code, aggravated assault has two essential elements: (1) an attempt to commit a violent injury, or an act that places another in reasonable apprehension thereof, and (2) that the assault was aggravated by either (a) an intention to murder, rape or rob, or (b) the use of a deadly weapon 34;11 And in 2002, the Court recognized in Brinson v. State12 that "central to the offense of aggravated assault is that an assault as defined in OCGA § 16-5-20" occurred.13
We find the instant case controlled by the Supreme Court's more recent case, Chase,14 which follows principles underlying Smith15 and Brinson.16 Among other offenses, the appellant in Chase had been indicted for aggravated assault by "assault(ing the victim) with a gun, a deadly weapon, by shooting her."17 At issue was whether the trial court had sufficiently charged the jury on the offense of aggravated assault. The court had instructed:
[A] person commits aggravated assault by the use of a deadly weapon if the person assaults the victim by shooting the victim with a firearm.... (I)n order for there to be a conviction for aggravated assault, you must find either an intention to commit injury on the other person or that the other person was intentionally placed in reasonable apprehension of immediately receiving a violent injury.18
The appellant in Chase contended that the charge was reversible error because it failed to inform the jury of a requirement set forth within the simple assault statute, OCGA §; 16-5-20(a)(1), that there must have been an intent to commit a violent injury to the person of another.19
Agreeing with the appellant, the Court espoused,
Jury instructions are the lamp to guide the jury's feet in journeying through the testimony in search of a legal verdict. The office of a charge by the court is to give to the jury such instruction touching the rule of law pertinent to the issues involved in a pending trial as will enable them intelligently to apply thereto the evidence submitted, and from the two constituents law and fact make a verdict. The trial judge must charge the jury on each crime specified in the indictment unless the evidence does not warrant a conviction of such crime, or unless the State has affirmatively withdrawn a crime or stricken it from the indictment. The jury must be given an appropriate instruction as to the law on each substantive point or issue involved in the case. When a given instruction fails to provide the jury with the proper guidelines for determining guilt or innocence, it is clearly harmful and erroneous as a matter of law. Consequently, the failure to inform the jury of an essential element of the crime charged is reversible error because the jury is left without appropriate guidelines for reaching its verdict.20
Chase is further instructive to the instant case because, in finding reversible error, the Court rejected the state's argument that any error in the charge on simple assault was harmless on the ground that a charge on simple assault is superfluous when the crime is aggravated assault.21
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Howard v. the State.Ross v. the State., s. S10A2028
...harm. [Cits.]” Giddens v. State, 276 Ga.App. 353, 356(2), 623 S.E.2d 204 (2005). Although the Court of Appeals held in Coney v. State, 290 Ga.App. 364, 368–369(1), 659 S.E.2d 768 (2008) that it was “harmful error for a trial court to fail to charge the statutory definition of assault in a c......
- McGee v. State
- Smith v. State
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Futch v. State, S09A1544.
...improperly direct a finding on the question of intent. See Chappell v. State, 290 Ga.App. 691, 659 S.E.2d 919 (2008); Coney v. State, 290 Ga.App. 364, 366(1), 659 S.E.2d 768 (2008). Compare Harris v. State, 273 Ga. 608, 543 S.E.2d 716 (2001). Thus, there is no shown deficiency or prejudice ......