Derrick v. State

• Decision Date: 31 January 1994
• Docket Number: No. S94A0101,S94A0101
• Citation: 263 Ga. 766,438 S.E.2d 903
• Parties: DERRICK v. The STATE.
• Court: Georgia Supreme Court

Page 903

438 S.E.2d 903

263 Ga. 766

DERRICK v. The STATE.

No. S94A0101.

Supreme Court of Georgia.

Jan. 31, 1994.

Peter D. Johnson, Augusta, for Louis Derrick, Jr.

Daniel J. Craig, Dist. Atty., Augusta, Michael J. Bowers, Atty. Gen., Susan V. Boleyn, Sr. Asst. Atty. Gen., Matthew P. Stone, Staff Atty., Dept. of Law, Atlanta, for the State.

Charles R. Sheppard, Asst. Dist. Atty., Augusta.

CARLEY, Justice.

After a jury trial, appellant was found guilty of malice murder and also of subsequently concealing the death of the victim. He received a life sentence for the murder and was given a concurrent sentence of twelve months for his concealment of the death of the victim. He appeals from the judgments of conviction and sentences entered by the trial court on the jury's guilty verdicts. ¹

1. Appellant does not contest the sufficiency of the evidence to authorize his conviction for concealing the death of the victim. He does, however, enumerate the general grounds as to his malice murder conviction.

Appellant knew the victim and was a friend of the victim's housemates. The homicide occurred while appellant and the victim were alone in the victim's house. According to appellant, he killed the victim in self-defense. However, the State adduced evidence that, shortly after the homicide, appellant had admitted to the victim's housemates that he had killed the victim, but he had not at that time claimed to have acted in self-defense. Moreover, appellant never contacted the authorities after the homicide. Instead, he enlisted the aid of the victim's housemates in disposing of the evidence and employed threats in an attempt to secure their silence. Appellant concealed the victim's body in a desolate area. Although the victim's housemates were at the scene shortly after the homicide, they saw nothing to indicate that a fight had taken place on the premises or that appellant had suffered any injury. The victim, who was known to "flash" his money, had been severely beaten. The victim's wallet was also missing and was never recovered.

"Malice is a state of mind and frequently must be proven indirectly." Davis v. State, 237 Ga. 279, 280(2), 227 S.E.2d 249 (1976). "It is for the [trier of fact] to determine whether any killing is intentional and malicious from all the facts and circumstances. [Cit.]" Blair v. State, 245 Ga. 611, 614, 266 S.E.2d 214 (1980). "We find that the facts and circumstances were sufficient to authorize the [jury] to infer malice pursuant to OCGA § 16-5-1(b), and that the evidence was sufficient for a rational trier of fact to have found [appellant] guilty of [malice murder] beyond a reasonable doubt. Jackson v. Virginia, 443 U.S. 307 (99 SC 2781, 61 LE2d 560) (1979)." Latimore v. State, 262 Ga. 448, 450, 421 S.E.2d 281 (1992).

2. Appellant enumerates as error the admission of evidence that the victim's wallet was missing.

Appellant did not object to the admission of the evidence. He urges, however, that this enumeration is nevertheless reviewable under the "plain error" rule. "This Court has not adopted the plain error rule in cases in which the death penalty is not sought. However, even if we were to consider the facts of this case under the plain error rule, the assertion of error is without merit." Owens v. State, 263 Ga. 99, 101-102(2), 428 S.E.2d 793 (1993).

Evidence that the victim's wallet was missing was admissible as part of the res gestae. See Chambers v. State, 250 Ga. 856, 859(2), 302 S.E.2d 86 (1983); Newman v. State, 237 Ga. 376, 382(4), 228 S.E.2d 790 (1976); Shouse v. State, 231 Ga. 716, 718(8), 203 S.E.2d 537 (1974). "This is true even if the defendant's character is incidently placed in issue." Satterfield v. State, 256 Ga. 593, 598(6), 351 S.E.2d 625 (1987).

Moreover, the evidence was also admissible as relevant to rebut appellant's claim of self-defense by establishing the existence of a motive for his intentional killing of the victim. " 'While motive is not an essential element in the proof of the crime of murder, the State is entitled to present evidence to establish that there was a motive.' [Cit.]" Whitener v. State, 261 Ga. 567, 568(2), 407 S.E.2d 735 (1991).

3. Appellant enumerates as error numerous purported deficiencies in the trial court's instructions to the jury.

The record demonstrates that appellant's right to enumerate error as to the jury charge was waived. White v. State, 243 Ga. 250, 253 S.E.2d 694 (1979). Contrary to appellant's contention, none of the purported deficiencies in the charge would constitute "substantial error" within the meaning of OCGA § 5-5-24(c).

4. Appellant urges that his trial counsel was ineffective and that the trial court erred in concluding otherwise.

Appellant contends that his trial counsel's performance was deficient in connection with the jury charge. However, "[t]o establish that there has been actual ineffective assistance of counsel, the defendant must show that counsel's...