Gillespie v. State, 30933

• Decision Date: 20 April 1976
• Docket Number: No. 30933,30933
• Parties: David Wayne GILLESPIE v. The STATE.
• Court: Georgia Supreme Court

Page 296

225 S.E.2d 296

236 Ga. 845

David Wayne GILLESPIE v. The STATE.

No. 30933.

Supreme Court of Georgia.

April 20, 1976.

Rehearing Denied May 17, 1976.

Leonard N. Steinberg, Paul E. Cormier, Forest Park, for appellant.

William H. Ison, Dist. Atty., Clarence L. Leathers, Jr., Asst. Dist. Atty., Jonesboro, Arthur K. Bolton, Atty. Gen., Isaac Byrd, Atlanta, for appellee.

HALL, Justice.

David Wayne Gillespie was convicted, along with two co-defendants, for the murder of Tony Doster and sentenced to life imprisonment. His sole enumeration of error raises the question whether the trial court erred in refusing to charge on request the law of voluntary manslaughter. We hold that the requested charge was properly refused and affirm.

Gillespie relies on Banks v. State, 227 Ga. 578, 580, 182 S.E.2d 106, 108 (1971), where we said, '(o)n the trial of a murder case, if there be any evidence, however slight, as to whether the offense is murder or voluntary manslaughter, instruction as to the law of both offenses should be given the jury.' (Emphasis supplied.) We have also made clear, in Henderson v. State, 234 Ga. 827, 831, 218 S.E.2d 612, 616 (1975), however, that '(a)lthough the jury is the judge of whether there was an interval between the provocation and the killing sufficient for the voice of reason and humanity to be heard, it is a question of law for the courts to determine whether there is slight evidence that the defendant acted as the result of sudden, violent and irresistible passion resulting from serious provocation.' See Code Ann. § 26-1102.

Although the voluntary manslaughter charge was requested at trial, the defendant's theory of defense was clearly justification. The facts, taken most favorably to the defendant, show that on the morning of July 3, 1975, the defendant Gillespie and co-defendant Tony Sanchez were at Gillespie's girlfriend Karen Smith's house helping to mow her lawn. The victim, Tony Doster, called Karen, who had been the girlfriend of a now deceased younger brother, and asked her to meet him, allegedly because he suspected Gillespie of having reported him to the police, which had resulted in a drug raid on Doster's apartment. Sanchez drove her to a Burger King, where she met Doster to drive around to discuss this problem, and ended up at a lake at Peachtree City. There Karen claims Doster tried to rape her. When she returned and told Gillespie about the incident, he became angry and resolved to beat him up. Though Gillespie was only five feet seven inches and Doster was six feet five, Gillespie felt he could take him on because he was a brown belt Karate expert. He claims he at no time intended to kill Doster, but only acquired a gun and ammunition and practiced shooting because he knew Tony Doster carried a gun and felt he also needed one for his own protection.

Gillespie and Sanchez unsuccessfully hunted Doster from about three o'clock July third until the afternoon of July fourth, so Gillespie urged Karen Smith to call Tony Doster and arrange to meet him at the North Clayton High School tennis courts at seven thirty that night. Instead Stovall, Sanchez and Gillespie intercepted Doster there in Stovall's station wagon. As their cars drew parallel, Gillespie rose from behind the front seat, where he had been hiding, to confront Doster. When Doster said 'you little bastard I told her not to say anything . . . I'm going to blow your brains out,' and leaned over to the right, Sanchez yelled, '(l)ook out, he's got a...