Fraley v. State
| Decision Date | 16 July 1986 |
| Docket Number | No. 43251,43251 |
| Citation | 345 S.E.2d 590,256 Ga. 178 |
| Parties | FRALEY v. The STATE. |
| Court | Georgia Supreme Court |
Tony L. Axam, Axam & Altman, P.C., Atlanta, for Kenneth wayne fraley.
Lewis R. Slaton, Dist. Atty., Atlanta, Benjamin H. Oehlert III, Asst. Dist. Atty., Michael J. Bowers, Atty. Gen., J. Michael Davis, Asst. Atty. Gen., for State.
From his conviction and life sentence for the felony murder of Hubert Muhamad, the defendant, Kenneth Wayne Fraley, appeals. 1
On the evening of November 13, 1982, Fraley and a friend, known only as "Cleve," went to the victim's barber shop in Atlanta. After getting a trim, Fraley and Cleve helped Muhamad clean his shop, and the three of them left thereafter in Muhamad's car for a Simpson Avenue address, ostensibly to purchase marijuana. On arrival, before they exited the car, an argument and scuffle over money ensued between Cleve and the victim, and the victim hit Fraley on his previously injured arm. Fraley jumped out and pulled the victim from the passenger side of the car. Both he and Cleve were involved in the assault on the victim which involved throwing him to the ground, kicking and choking him. From the conflicting eyewitness testimony, it could have been concluded that either Fraley or Cleve choked the victim. When an upset neighbor got his shotgun and fired once in the air, the defendant and Cleve left the scene in the victim's car.
The victim, aided by bystanders, staggered to a chair at a cab stand, drank some water and collapsed. He was dead when the police arrived. Expert testimony indicated that his death was the result of asphyxiation caused by strangulation.
Fraley returned to the scene an hour and a half later and when told of the victim's death he remarked that he did not give a damn. He was arrested a month later and charged with malice murder.
1. The defendant enumerates as error that the evidence is insufficient to support the verdict. The jury was entitled to conclude, however, that the defendant either was a principal in strangling the victim or that he aided and abetted the third person, Cleve, in doing so. Thus, having reviewed the evidence in the light most favorable to the jury's determination, we conclude that a rational trier of fact could have found the defendant guilty of the crimes of which he was convicted beyond a reasonable doubt. Jackson v. Virginia, 443 U.S. 307, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979).
2. The defendant, relying on McCrary v. State, 252 Ga. 521, 314 S.E.2d 662 (1984), contends that his conviction for felony murder must be set aside because he was not indicted for the underlying felony which in this case was aggravated assault, and that the indictment did not otherwise notify him of the felony charged. He contends there was a fatal variance between the indictment and the evidence.
In McCrary we held that "A defendant indicted only for malice murder cannot be convicted of felony murder unless the defendant has been put on notice of the felony by the facts alleged to show how the murder was committed." McCrary, supra, at 524, 314 S.E.2d 662. Here, the indictment charged that Fraley "did unlawfully and with malice aforethought, cause the death of Hubert Muhamad, a human being, by manually strangling him...." We find that sufficient facts were included in that charge to put the defendant on notice that he committed an aggravated assault upon the victim and that the victim died as a result. See Middlebrooks v. State, 253 Ga. 707(2), 324 S.E.2d 192 (1985). Compare Welch v. State, 254 Ga. 603, 606, 331 S.E.2d 573 (1985).
Moreover, the trial court conducted a pre-charge hearing at the conclusion of the evidence and upon considering various requests from counsel for the state and the defendant, announced that he would instruct the jury on the offenses of malice murder, felony murder, voluntary manslaughter, and both types of involuntary manslaughter. Counsel for the defendant participated in this procedure which included a discussion of whether felony murder should be charged, and offered no objection. After the charge, the trial court inquired as to objections and the defendant stated he had none and did not reserve the right to object on motion for new trial or appeal. Thus, to the extent the jury instructions bear on this issue, any enumeration of error is waived. See Jackson v. State, 246 Ga. 459, 460, 271 S.E.2d 855 (1980).
Based on the indictment, the evidence and the jury instructions, the felony murder conviction was authorized, and we find no merit in defendant's contentions to the contrary.
3. Fraley argues next that prosecutorial misconduct involving...
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