Edwards v. State

• Decision Date: 25 April 1994
• Docket Number: No. S93G1489,S93G1489
• Citation: 264 Ga. 131,442 S.E.2d 444
• Parties: EDWARDS v. The STATE.
• Court: Georgia Supreme Court

Page 444

442 S.E.2d 444

264 Ga. 131

EDWARDS v. The STATE.

No. S93G1489.

Supreme Court of Georgia.

April 25, 1994.

Mark J. Nathan, Savannah, for Edwards.

Spencer Lawton, Jr., Dist. Atty., Thomas M. Cerbone, David T. Lock, Asst. Dist. Attys., Savannah, for State.

FLETCHER, Justice.

Edwards was charged with and convicted of the offenses of armed robbery, burglary and possession of a firearm during the commission of a felony. His convictions were affirmed by the Court of Appeals. Edwards v. State, 209 Ga.App. 304, 433 S.E.2d 619 (1993). We granted his petition for writ of certiorari to address the question of whether the trial court erred when it denied Edwards' written request for a jury charge on the lesser included offense of theft by taking. Because we conclude that the trial court should have given Edwards' requested charge, we disapprove of the holding in Division 2 of the Court of Appeals' opinion.

Edwards responded to the charge of armed robbery by claiming that he did not commit an armed robbery and that the weapons which the officers discovered on the scene had been found in the residence during the course of his and his accomplices' search for cash and other valuable items. The only evidence in support of Edwards' contention is an in-custody statement he made to a police officer that he was "guilty of the burglary but not the second charge" (armed robbery), and that he and two others had decided to break into the house to steal drugs and money and that after they broke in the guns were found inside the house. ¹ Additionally, Edwards points to certain inconsistencies between the victim's testimony and that of a police officer, with regard to the location of one of the weapons found after Edwards' arrest, as circumstantial proof that the weapon had been located in the victim's house.

"[A] written request to charge a lesser included offense must always be given if there is any evidence that the defendant is guilty of the lesser included offense." State v. Alvarado, 260 Ga. 563, 564, 397 S.E.2d 550 (1990). One of Edwards' defenses to the charge of armed robbery was that he was not armed and had only committed the lesser offense of theft by taking. ² Although certainly subject to attack as weak, incomplete or self-serving, Edwards' statement to the officer constitutes at least "any evidence that the defendant is guilty of the lesser included offense" which mandates giving the requested written charge, as such evidence would entitle a jury to believe his version.

Citing Sims v. State, 197 Ga.App. 214, 217, 398 S.E.2d 244 (1990), the Court of Appeals adopted the state's argument that where the evidence shows all of the elements of the greater offense, it is not necessary to charge on the lesser included offense. See Edwards v. State, 209 Ga.App. at 305, 433 S.E.2d 619. However, a closer examination reveals that this proposition is an incomplete statement of the holding in Sims as Sims admitted to threatening the victim with a shotgun. Thus, Sims' own evidence supported the charge of armed robbery and not the lesser offense. The trial court is only justified in refusing to charge on the lesser offense when there is no evidence of that lesser offense. Sims relies on the holding in Hambrick v. State, 174 Ga.App. 444, 447, 330 S.E.2d 383 (1985) which is consistent with this rule. In Hambrick the defendant admitted to using a knife to rob the victim, but contested whether a knife is an "offensive weapon" as defined by the armed robbery statute (OCGA § 16-8-41). Since the knife was an offensive weapon and Hambrick admitted to its use, the facts in Hambrick did not present evidence of a lesser included offense. ³

The complete rule with regard to giving a defendant's requested charge on a lesser included offense is: where the state's evidence establishes all of the elements of an offense and there is no evidence raising the lesser offense, there is no error in failing to give a charge on the lesser offense. See Shepherd v. State, 234 Ga. 75, 214 S.E.2d 535 (1975) ("state's evidence clearly warranted a charge on armed robbery ... and there was no evidence of the lesser offense of theft by taking...."). Where a case contains some evidence, no matter how slight, that shows that the defendant committed a lessor offense, then the court should charge the jury on that offense. This case contained some evidence that Edwards did not use a weapon to take property from the victim and he was therefore entitled to a charge on the lesser included offense. However, we hold that in light of the overwhelming evidence against Edwards, it is highly probable that the failure to give this charge did not contribute to the verdict. We therefore disapprove of Division 2 of the Court of Appeals' opinion but affirm Edwards' conviction.

Judgment affirmed.

All the Justices concur, except BENHAM, P.J., and HUNSTEIN, J., who concur specially.

HUNSTEIN, Justice, concurring specially.

While I agree that the majority has correctly stated the rule regarding the giving of a defendant's requested charge on a lesser included offense, I cannot agree with its conclusion that the trial court erred, albeit harmlessly, by refusing Edwards' request to charge on theft by taking as a lesser included offense of armed robbery. As noted in the majority's...