Fulton v. State, S04A0548.

• Decision Date: 07 June 2004
• Docket Number: No. S04A0548.,S04A0548.
• Parties: FULTON v. The STATE.
• Court: Georgia Supreme Court

597 S.E.2d 396

278 Ga. 58

FULTON v. The STATE.

No. S04A0548.

Supreme Court of Georgia.

June 7, 2004.

Dell Jackson, Atlanta, for appellant.

Paul L. Howard, Jr., Dist. Atty., Bettieanne C. Hart, Marc A. Mallon, Asst. Dist. Attys., Thurbert E. Baker, Atty. Gen., Julie A. Adams, Asst. Atty. Gen., for appellee.

BENHAM, Justice.

Frederick Lashun Fulton appeals the judgment of conviction entered on the jury verdicts finding him guilty of malice murder, aggravated battery and possession of a firearm during the commission of a crime in connection with the death of Tirus Q. Stone in June 1997. After reviewing the appellate record, we affirm appellant's convictions for malice murder and possession of a firearm during the commission of a crime and vacate the conviction and sentence for aggravated battery.

1. Tirus Q. Stone was killed on June 25, 1997, as a result of multiple gunshot wounds inflicted by 12-gauge shotgun slugs fired from a sawed-off pump shotgun with pistol grip from a distance of about ten feet.¹ He suffered three gaping wounds to his chest, upper left abdomen and right hip, as well as a wound that destroyed his right elbow. The medical examiner who performed the autopsy described the chest wound as not instantaneously fatal and each of the hip and abdomen wounds as "significant[ly] lethal" and " lethal." He opined the damage to the victim's right elbow was caused by a slug that hit the elbow and then caused the lethal hip wound. A security officer employed by the Atlanta apartment complex at which the shooting occurred testified he heard a man say, "M ... F ..., I'm going to kill you," heard a loud shot followed by the victim pleading not to be shot again, and then heard the shotgun pumped and fired again. The witness described the killer as wearing a dark ski mask, white shirt and dark shorts, and carrying a sawed-off pump shotgun similar to the one displayed at trial. A friend of the victim testified he had been robbed at gunpoint and forced to strip down to his underwear by appellant, who was wearing a white shirt and dark shorts, the night before the victim was killed. This witness saw the shooting at issue and identified appellant as the shooter based on the fact the shooter was wearing the same clothing appellant had worn the night before when he had robbed the witness. Appellant's sister testified she saw appellant with a shotgun similar to that shown to her at trial the day after the victim was killed. She also saw him in possession of "green bullets," identified by another witness as shotgun shells. Appellant's sister testified appellant told her he had worn a ski mask and shot the victim because he believed the victim was going to kill appellant on behalf of the person appellant had robbed and humiliated the night before. The evidence was sufficient to authorize a rational trier of fact to conclude beyond a reasonable doubt that appellant was guilty of malice murder, aggravated battery, and possession of a firearm by during the commission of a crime. Jackson v. Virginia, 443 U.S. 307, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979).

2. Appellant contends the trial court erred when it imposed a 20-year sentence for aggravated battery because the conviction for aggravated battery merged as a matter of fact into the malice murder conviction.

"A person commits the offense of aggravated battery when he or she maliciously causes bodily harm to another by ... rendering a member of his or her body useless, or by seriously disfiguring his or her body or a member thereof." OCGA § 16-5-24(a). The indictment alleged appellant had both disfigured the victim's body and deprived the victim of the use of his elbow, "having accomplished said act by shooting off the arm" of the victim. The medical examiner's testimony that the shot which resulted in the lethal wound to the hip area initially struck and damaged the victim's elbow establishes that the same act caused the aggravated battery and the victim's death, and that the same evidence used to prove the aggravated battery was used to prove the malice murder. See Drane v. State, 265 Ga. 255(9), 455 S.E.2d 27 (1995) (aggravated battery does not merge where act resulting in aggravated battery was independent of the act causing death); Fitzpatrick v. State, 268 Ga. 423(1), 489 S.E.2d 840 (1997) (aggravated assault merges into malice murder as a matter of fact when evidence used to prove the former is the same as that used to prove the latter). See also Braley v. State, 276 Ga. 47(26), 572 S.E.2d 583 (2002) (aggravated battery resulting in throat disfiguration caused by repeated stabbing merged into malice murder where fatal wound was stab wound to the throat); Lucas v. State, 274 Ga. 640(18), 555 S.E.2d 440 (2001) (aggravated battery resulted from non-lethal shot to arm and shoulder). Accordingly, the aggravated battery conviction merged into the malice murder conviction as a matter of fact and both the conviction and the sentence imposed for aggravated battery must be vacated. Braley v. State, supra, 276 Ga. 47(26), 572 S.E.2d 583; Fitzpatrick v. State, supra, 268 Ga. 423(1), 489 S.E.2d 840.

3. Appellant maintains the trial court committed reversible error when it admitted the testimony of the witness who said appellant, wearing the same clothing as the man who killed the victim, had robbed him the night before the victim was killed. At trial, appellant objected to the testimony because the State had not given the 10-day pre-trial notice required by Uniform Superior Court Rule 31.1 for the presentation of evidence of similar transactions or occurrences, and because the trial court had not conducted a hearing on the subject. The trial court admitted the testimony as res gestae evidence, which is not subject to the notice and hearing requirements of USCR 31.1. USCR 31.3(E).

We agree with the trial court that the testimony was admissible, but for a different reason. The challenged testimony was evidence of appellant's motive for shooting the victim: appellant believed the witness had asked the victim to kill appellant because appellant had robbed and humiliated the witness. "Evidence of the defendant's motive is relevant, even though it may incidentally place the defendant's character in evidence, and evidence of motive is not subject to the notice and hearing requirements of Uniform Superior Court Rules 31.1 and 31.3." Fann v. State, 275 Ga. 756, 757(3), 571 S.E.2d 774 (2002). The trial court did not err when it admitted the testimony since it showed appellant's motive for shooting the victim.

4. Appellant maintains his convictions must be reversed and a new trial ordered because the trial court instructed the jury that intent to kill could be inferred from evidence appellant used a gun to kill the victim. In Harris v. State, 273 Ga. 608(2), 543 S.E.2d 716 (2001), this Court concluded it was error in a murder trial for the trial court to instruct the jury it could infer the intent to kill from the use of a deadly weapon in the manner in which the weapon is ordinarily used by a person of sound mind and discretion who acted intentionally and without justification. See Cochran v. State, 276 Ga. 283(2), 576 S.E.2d 867 (2003). Compare Ross v. State, 276 Ga. 747(2), 583 S.E.2d 850 (2003) (giving of Harris charge is harmless error where defendant convicted of felony murder). Where a defendant is convicted of malice murder, giving the charge disapproved of in Harris is harmless error where the evidence of malice is so overwhelming that it is highly probable the charge did not contribute to the verdict. Quintana v. State, 276 Ga. 731(5), 583 S.E.2d 869 (2003); Smith v. State, 276 Ga. 263(5), 577 S.E.2d 548 (2003); Roberts v. State, 276 Ga. 258(6), 577 S.E.2d 580 (2003). Where, as here, the evidence established the defendant pulled a gun and repeatedly shot the victim without warning or provocation, the evidence of malice is overwhelming and renders the giving of the erroneous Harris charge harmless error. Stockford v. State, 276 Ga. 241(2), 575 S.E.2d 889 (2003); Brown v. State, 276 Ga. 103(2), 575 S.E.2d 505 (2003).

5. Appellant maintains the trial court erred when it failed to grant appellant's motion for mistrial after appellant's character purportedly was impermissibly placed in issue by the arresting officer's testimony that, at the time he arrested appellant, the officer had an "A.P.D. picture [of appellant] where he was booked in before." A reference to the fact that a photograph of a defendant was in police records prior to the defendant's arrest for the crime for which he is being tried does not place the defendant's character in issue. White v. State, 267 Ga. 523(6), 481 S.E.2d 804 (1997); Savage v. State, 264 Ga.App. 709(1), 592 S.E.2d 188 (2003). Accordingly, the trial court did not err when it denied the motion for mistrial.

6. Appellant next maintains the trial court erred when it denied his motion for mistrial after appellant's character allegedly was impermissibly placed in issue by the testimony of appellant's sister on cross-examination that, three weeks before police came to her home looking for appellant in connection with this crime, she had called police to report appellant had pointed a gun at her, conduct unrelated to the charges being tried. Defense counsel moved for a mistrial on the ground that the witness's testimony was non-responsive, impugned appellant's character, and the prejudice could not be overcome by a curative instruction. The trial court denied appellant's motion for mistrial.

The testimony at issue was not responsive to the question posed² and made the jury aware of prior bad acts purportedly committed by appellant. Where a witness injects the defendant's character into issue by referring to a prior act of misconduct in an answer not responsive to the question asked and the trial court instructs the jury to disregard the unresponsive answer, it is not error for the trial court to deny a motion...