Grace v. State
| Decision Date | 18 February 1993 |
| Docket Number | No. S92A1271,S92A1271 |
| Citation | 425 S.E.2d 865,262 Ga. 746 |
| Parties | GRACE v. The STATE. |
| Court | Georgia Supreme Court |
H.B. Edwards, III, Edwards & Edwards, Valdosta, for Grace.
H. Lamar Cole, Dist. Atty., Valdosta, James E. Hardy, Asst. Dist. Atty., Thomasville, Michael J. Bowers, Atty. Gen., Atlanta, Mark E. Mitchell, Asst. Dist. Atty., Thomasville, for State.
Susan V. Boleyn, Sr. Asst. Atty. Gen., Dept. of Law, Atlanta.
Rachelle L. Strausner, Staff Atty., Atlanta, for other interested parties.
James Lee Grace was convicted of the murder of Anthony Justiss, the aggravated assault and aggravated battery of Warren Jackson and armed robbery all arising from an incident that occurred at a Bee Line Food Store in Thomas County. 1 Grace was sentenced to life imprisonment for the murder and, for the remaining three crimes, he was sentenced to three 20 year terms to be served consecutively with the life sentence. He appeals and we affirm.
1. Grace argues that the trial court erred in denying his motion in limine which sought to exclude evidence concerning events that occurred later on the evening of the robbery and early the next morning. Grace argues that such evidence was not admissible because the state did not comply with the notice provisions of Uniform Superior Court Rules 31.1 and 31.3 as to those events and because the court did not conduct a hearing as to those events as is required by § 31.3(B) of that same rule. However, the events Grace sought to exclude mention of occurred during the flight from the robbery scene, were immediately related in both time and place to the charges being tried, and were admissible without such notice and hearing pursuant to § 31.3(E) of that rule which provides, in part Nothing in this rule is intended to prohibit the state from introducing evidence of [independent] transactions or occurrences which are ... immediately related in time and place to the charge being tried, as part of a single, continuous transaction.
Accordingly, there is no merit to Grace's argument in this regard.
2. Arguing that the aggravated assault of Warren Jackson, which occurred during the robbery, was a lesser included offense of the aggravated battery of that same individual, which also occurred during the robbery, Grace asserts that the trial court erred in allowing the jury to convict him of both. However, the facts of the case establish the commission of two separate crimes against Warren Jackson.
Warren Jackson was operating the cash register at the Bee Line Food Store when Grace and two of his companions approached the store. Grace remained outside of the store at the door while his companions entered the store. One of Grace's companions brought an item to the cash register; Warren Jackson rang up the sale and was handing the companion his change when the companion's hand came up and Jackson was shot between the eyes. The force of the gunshot knocked Jackson back toward the wall behind the counter and, as Jackson fell to the floor, he heard his co-worker, Anthony Justiss, plead for his life and then heard a second gunshot. Moments later, Jackson heard someone run around the counter to where Jackson was lying behind the counter. Jackson was grabbed by his hair, his head lifted off the floor, and Jackson was shot a second time. The second bullet entered Jackson's head in front of his right ear.
Jackson was blinded in one eye as a result of the first shot fired at him and the state contends that shot constituted an aggravated battery pursuant to OCGA § 16-5-24(a) in that it deprived Jackson of his sight in one eye. The state contends that the second shot fired at Jackson constituted an aggravated assault pursuant to OCGA § 16-5-21(a)(2). The evidence used to prove the commission of the aggravated assault was not used at all in proving the commission of the aggravated battery and thus there is no merit to Grace's contention that the aggravated assault was a lesser included offense of the aggravated battery. Compare Montes v. State, 262 Ga. 473(1), 421 S.E.2d 710 (1992).
3. Grace's argument that there was no evidence of malice to support the murder conviction is also without merit. OCGA § 16-5-1(b) provides, in part:
Malice shall be implied where no considerable provocation appears and where all the circumstances of the killing show an abandoned and malignant heart.
The facts set forth in Division 2 clearly establish the absence of provocation and demonstrate that the homicide of Anthony Justiss was the act of an abandoned and malignant heart.
4. Because he stood outside of the store throughout the entire incident, Grace contends there was no evidence that he was involved in any of the crimes charged. However, OCGA § 16-2-20(a) provides:
Every person concerned in the commission of a crime is a party thereto and may be charged with and convicted of commission of the crime.
OCGA § 16-2-20(b)(3) goes on to provide that one is "concerned in the commission of a crime" if he, among other things, "[i]ntentionally aids or abets in the commission of the crime...."
While an individual's presence when a crime is committed will not be sufficient, in and of itself, to convict that individual as a party to the crime, if the individual is present and assists in the commission of the crime or shares in the criminal intent of the actual perpetrator of the crime, the individual may be convicted as a party to the crime. Thornton v. State, 119 Ga. 437, 46 S.E. 640 (1903). Further, "criminal intent may be inferred from conduct before, during, and after the commission of the crime." Sands v. State, 262 Ga. 367, 418 S.E.2d 55 (1992).
In the present case, the evidence shows that Grace and his two companions had all entered the Bee Line Food Store together earlier in the evening and while Grace's companions occupied themselves with a punch board game, Grace wandered around the back of the store for several minutes before all three left the store together. A few hours later, Grace and his two companions again...
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...207 Ga.App. 44, 45, 427 S.E.2d 37 (1993). Compare Wilkins v. State, 266 Ga. 278, 280(3), 466 S.E.2d 592 (1996) with Grace v. State, 262 Ga. 746, 747(1), 425 S.E.2d 865 (1993). 5. Beasley enumerates error with regard to the verdict form that the trial court sent out with the jury, pointing o......
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...viewed as part of a single, continuous transaction immediately related in time and place to the charge being tried. See Grace v. State, 262 Ga. 746, 425 S.E.2d 865 (1993). In Maxwell, however, we observed that the hearing requirements of USCR 31.3(B) applied to recent difficulties occurring......
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