Cook v. State, 42661
| Citation | 255 Ga. 565,340 S.E.2d 843 |
| Decision Date | 07 March 1986 |
| Docket Number | No. 42661,42661 |
| Parties | COOK v. The STATE. |
| Court | Supreme Court of Georgia |
Thomas J. Charron, Dist. Atty., Debra H. Bernes, Asst. Dist. Atty., Marietta, Michael J. Bowers, Atty. Gen., Susan V. Boleyn, Asst. Atty. Gen., for the State.
Appellant, James Cook, was convicted in Cobb County of murder and two counts of aggravated assault. The jury found the presence of two statutory aggravating circumstances and recommended a death sentence. The case is here on direct appeal, for review under the Unified Appeal Procedure, as amended, 252 Ga. A-13 et seq., and for the sentence review mandated by OCGA § 17-10-35. We affirm. 1
Shortly after midnight, in the early morning hours of July 8, 1984, Marietta Police Sergeant Massey monitored a call about shots on McIntosh Street in Marietta.
Since he was not far from McIntosh, Sgt. Massey responded, arriving approximately a minute later at the duplex residence of Johnny Rosser (also known as Johnny Check). Sgt. Massey observed James Cook standing in front of the residence, with his back to Massey, facing two men lying in front of him. As Sgt. Massey approached, stating "I'm a police officer," Cook turned, pistol in hand, with the hammer cocked, and his finger on the trigger. Sgt. Massey took the gun. It was still warm.
Other officers arrived, and a crowd began to gather, including a woman screaming that she had been shot. One of the two men lying in front of the duplex appeared to be dead; the other had been shot three times, but was still alive. The bystanders, some of whom had witnessed the shootings, began to relate to the officers what had happened. Some were quite excited, and Cook was transported to police headquarters to get him out of possible danger.
Jackie Menafee, the surviving male victim, testified at trial that, after having been to Johnny Check's earlier that evening, he had returned sometime after midnight to get cigarettes. As he was leaving, he met Gardner Perry, known to Menafee as "Pops," who wanted to talk to him. They sat down on some steps in front of the duplex and Perry asked for a cigarette. As Menafee prepared to get one, he heard a commotion, turned, and said, "Hey Pop, this dude's got a gun." A shot went off, and Perry fell over. Menafee, who had talked to Cook earlier that evening, asked him, "Well, why did you shoot the man?" Cook responded, "What you got to do with it? " Then he shot Menafee in the leg. When Menafee asked why he had been shot, Cook shot him again. Menafee began to shout for help. Cook told him he wasn't dead yet, and shot him again.
Sandra King was standing outside the duplex next door, with her boyfriend. She heard shots and ducked. When she stood up, a shot struck her in the hip.
Two other witnesses saw Cook shoot Menafee as the latter sat on the steps. In addition, another witness testified that, after the shots were fired, Cook approached the witness, pointed the gun at him and threatened to shoot him too, and walked away, "snapping" his gun.
Cook testified that Menafee had offered the services of two prostitutes, for $105, and that he had declined. Menafee went outside, and soon afterwards so did Cook. When he went outside, he was surrounded by five or six people who demanded his money. Cook did not respond, and one of the men hit him in the stomach with a knife. Cook fell down the steps. When he jumped up, two men were rushing him and he shot them. One of them, Jackie Menafee, turned around and sat down for a few moments, then got up and charged again, so Cook shot him again.
At the sentencing phase of the trial, it was shown that Cook had been convicted of murder in 1950. In addition, two witnesses testified to two later shooting incidents.
Milous Stevenson, a retired taxi driver, testified that in 1964 he had picked up Mrs. Cook in downtown Marietta. As they were driving through Marietta, Mrs. Cook observed her husband in a car with another woman. She got out of the cab, went to the other car and got into a fight with the woman. Afterwards, Stevenson took Mrs. Cook home. While he was settling the bill, Cook arrived, carrying a 12 gauge shotgun, which he pointed at his wife. Her sister slapped the gun away, with the result that it was now pointed toward Stevenson. He attempted to pull it down, and it went off, shooting him in the side. Stevenson was in the hospital fourteen days.
Janie Durham testified that in 1981, she and several friends, including Cook, were gathered in a friend's backyard drinking. Some of the women began to tease Cook. After a while, Cook got up and went home. He returned later carrying a gun. Ms. Durham "hit the ground." She heard a shot, which "sprinkled" her leg. (She took a warrant for his arrest, but dropped it later, after he paid her fine in a DUI case.)
as reason, prevents a person from taking advantage[255 Ga. 567] of his own wrong or excusing himself when the unlawful act strikes down an unintended victim. In legal contemplation, the intent follows the act through to its legitimate results, and the original intent is transferred from the one against whom it was entertained to him who actually suffered the consequences of the felonious act."
After the jury had deliberated for several hours, it asked the court whether the principle of transfer of intent could apply to the offenses of voluntary manslaughter and aggravated assault, in addition to murder.
After consulting with the attorneys outside the presence of the jury, the court answered the jury's question in this manner:
Cook timely objected to each of the foregoing charges. In his first enumeration of error, he contends that the charge was contrary to the evidence and was misleading and confusing.
Cook's argument is premised, in part, upon an assumption that the evidence does not authorize a finding that Cook formed an intent to kill before he fired the shot that struck Gardner Perry. With this assumption we cannot agree, and find that the evidence, although circumstantial, is sufficient to establish a pre-existing intent to kill.
It is true, as Cook contends, that in order for the doctrine of transferred intent to apply to the death of Gardner Perry, "the jury would have ... to [find] in appellant an intent to kill ... existing before Mr. Perry was shot." However, we do not agree with his further contention that the court's charge authorized the jury to convict Cook for the murder of Perry on the basis of "intent to commit an aggravated assault upon Mr. Menafee formed after Mr. Perry was killed," nor do we believe that any reasonable juror could have so construed the charge.
Regarding the supplemental instructions, we find that they simply informed the jury that the legal principle of transferred intent applies to offenses other than murder. We note that none of the offenses presented to this jury require that the necessary element of intent, to kill or injure as the case may be, must have been directed toward the person who actually was killed or injured. See OCGA §§ 16-5-1; 16-5-2; 16-2-1; 16-4-1; 16-5-20 and 16-5-21. Compare Sandstrom v. Montana, 442 U.S. 510, 99 S.Ct. 2450, 61 L.Ed.2d 39 (1979).
The indictment alleges in count one that Cook "did unlawfully and with malice aforethought cause the death of Gardner Perry, a human being, by shooting him with a pistol." This allegation was sufficient to put Cook on notice that he committed an aggravated assault upon Gardner Perry, and the court did not err by instructing the jury on the offense of felony murder. Jolley v. State, 254 Ga. 624(2), 331 S.E.2d 516 (1985).
Contrary to Cook's twentieth enumeration of error, the evidence supports the conviction for murder and two counts of aggravated assault. Jackson v. Virginia, 443 U.S. 307, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979). The jury was not required to believe Cook's testimony over that of the state's witnesses, Welch v. State, 254 Ga. 603(5), 331 S.E.2d 573 (1985), nor was the state required to establish a motive beyond a reasonable doubt, since motive is not an element of the offense of murder. Hancock v. State, 196 Ga. 351, 357, 26 S.E.2d 760 (1943).
3. The trial court gave a lengthy pre-evidentiary charge, including an explanation of the stages of the trial. After explaining the first step--opening statements--the court stated: "Second, the state will introduce evidence in support of the charges contained in the indictment."
Cook argues in his third enumeration that this charge "had the effect of telling the jury that the state's evidence would support the charges it had brought," and, thus, amounted to a forbidden comment upon the evidence. See OCGA § 17-8-57. In our view, to say that the state will offer evidence "in support of the charges" is not to predict that the state's evidence will establish the charges, and we find no error.
4. In his fourth enumeration, Cook argues that the chain of custody of a bullet was not established and the bullet should not have been admitted in evidence.
Detective Parker testified that he gave the bullet to Detective Reibly. Richard Ernest, a firearms examiner, testified that he received the bullet from Detective Reibly. Cook argues that because...
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