Freeman v. State, A94A1437
| Decision Date | 15 August 1994 |
| Docket Number | No. A94A1437,A94A1437 |
| Citation | 214 Ga.App. 425,448 S.E.2d 465 |
| Parties | FREEMAN v. The STATE. |
| Court | Georgia Court of Appeals |
Richard A. Grossman, Dunwoody, for appellant.
Lewis R. Slaton, Dist. Atty., Henry Newkirk, Barry I. Mortge, Asst. Dist. Attys., for appellee.
John B. Freeman was indicted for the malice murder of his wife, Gail Elaine Freeman. A jury found him guilty of the lesser included offense of voluntary manslaughter.
The State presented evidence that in the course of a domestic dispute between Freeman and his wife, in which both parties were armed with knives, Freeman overpowered and disarmed his wife, then fatally stabbed her. Freeman, who suffered stab wounds inflicted by his wife during the dispute, claimed he did not stab his wife and that the fatal wound was accidental.
1. In his first three enumerations of error, Freeman claims the trial court erroneously allowed the jury to consider matters relating to sentencing by charging the jury that he could receive misdemeanor punishment of twelve months confinement for the lesser included offense of involuntary manslaughter and that the trial court's charge on the offense of involuntary manslaughter improperly reduced the gravity of that offense. Implicit in Freeman's argument is the assumption that the jury returned a verdict of voluntary manslaughter because it believed the punishment for that offense was more severe than the punishment for involuntary manslaughter and the jury chose to inflict a more severe punishment.
After instructing the jury on the lesser included offense of voluntary manslaughter, the trial court also instructed the jury that they could consider involuntary manslaughter as a lesser included offense of malice murder. In giving its charge, the court informed the jury that Freeman could be found guilty of involuntary manslaughter if they found he unintentionally caused his wife's death by the commission of a misdemeanor. The trial court informed the jury that this grade of involuntary manslaughter was a felony offense. See OCGA § 16-5-3(a). In connection with its charge on involuntary manslaughter, the trial court also defined a misdemeanor as an offense which carries a penalty of up to 12 months and stated that simple battery, such as unlawful touching or striking of another person, and simple assault, would fall into the category of misdemeanors.
Contrary to Freeman's contention, the trial court did not instruct the jury that he would be punished for a misdemeanor if convicted of involuntary manslaughter. Rather, the trial court told the jury that involuntary manslaughter was a felony offense. The instruction on misdemeanor punishment was not related to any punishment Freeman might receive upon conviction for involuntary manslaughter but was included as part of the trial court's definition of misdemeanor as the type of "unlawful act other than a felony" set forth as an element of involuntary manslaughter under OCGA § 16-5-3(a).
Although Freeman does not raise the point, the trial court should not have characterized the offense of involuntary manslaughter as a felony, a matter related to punishment. See Johnson v. State, 261 Ga. 236, 239, 404 S.E.2d 108 (1991); Cater v. State, 176 Ga.App. 388, 336 S.E.2d 314 (1985). Even though the charge defining a misdemeanor was not related to a punishment which Freeman could have received, it served no proper purpose to inform the jury of the punishment for a misdemeanor.
Nevertheless, any such error was harmless in this case. Even if the evidence had supported the trial court's charge on the lesser included offense of involuntary manslaughter, nothing in the charge instructed the jury as to possible sentences which could have been imposed on Freeman or influenced the jury to consider sentencing matters in reaching a verdict. Fletcher v. State, 197 Ga.App. 112, 113, 397 S.E.2d 605 (1990); compare Green v. State, 206 Ga.App. 539, 541-544, 426 S.E.2d 65 (1992). "There is nothing in the record to demonstrate that the jury's verdict of guilty was impermissibly based on a consideration of punishment rather than on a consideration of the elements of the offense of [voluntary manslaughter]." Cater, supra at 389, 336 S.E.2d 314.
Moreover, even if the trial court's charge discouraged the jury from reaching a verdict of guilty of involuntary manslaughter, as Freeman contends, he could not have been harmed because the jury should not have been allowed to consider this offense. The evidence showed that Freeman's wife was stabbed to death with a knife, a deadly weapon. Any unlawful action taken by Freeman which caused her death could only have been an aggravated assault, a felony, not a misdemeanor...
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