Graham v. State, 39191
| Decision Date | 05 January 1983 |
| Docket Number | No. 39191,39191 |
| Citation | 250 Ga. 473,298 S.E.2d 499 |
| Parties | GRAHAM v. The STATE. |
| Court | Georgia Supreme Court |
Jeff C. Wayne, Dist. Atty., Gainesville, Bruce L. Udolf, Asst. Dist. Atty., Michael J. Bowers, Atty. Gen., Atlanta, Janice G. Hildenbrand, Staff Asst. Atty. Gen., for State.
B. Andrew Prince, Robert J. Reed Law Offices, Gainesville, for Harold Graham.
Harold Graham shot and killed Roy Cantrell with a 12 gauge shotgun. Graham appeals his conviction of murder and sentence to life imprisonment.
At the time of the killing, Graham was a friend and frequent companion to Teressa Cantrell, who formerly had been married to the victim. The Cantrells had one daughter, Michelle, who was living with the victim. Mrs. Cantrell has another daughter, Jenny, by an earlier marriage, who resided with her mother.
On the afternoon of January 1, 1981, the victim brought Michelle to Mrs. Cantrell's house for an overnight visit. Mrs. Cantrell and Jenny were there. The victim remained at the house for 20 to 30 minutes and then left. A few minutes later Graham drove up. There was evidence that he was intoxicated at the time. He entered the house and began arguing with Mrs. Cantrell. At this point Michelle went to get Mrs. Cantrell's brother, Craig Reese, who lived a short distance away on the other side of the street. Reese came over to the house, and, finding that the altercation had subsided, departed. Subsequently Michelle went back to Reese's house, called her father (the victim), apparently reported the argument, and asked her father to come and get her. She then returned to her mother's house and stated that Cantrell was on his way over. Graham obtained a shotgun from the bedroom and placed it in the kitchen near the back door.
At this point the evidence falls into conflict.
According to Mrs. Cantrell, she attempted to take the two girls away in her car, but Graham threatened to kill them if they tried to leave the house. A few minutes later, Cantrell drove up and parked in the driveway, and Michelle and Jenny ran out the door to meet him, followed by Graham and Mrs. Cantrell. Michelle got into Cantrell's car. As Cantrell attempted to get Jenny into the car, Graham emerged with the shotgun, pointing it at the car and threatening to kill Cantrell, who was not then armed. Mrs. Cantrell pushed the shotgun away, and it discharged. Graham aimed the gun again, still threatening to kill Cantrell; again Mrs. Cantrell pushed it away and it discharged. Jenny ran away after the second shot. Graham then ran up to Cantrell, who was standing beside his car, held the gun to his chest and said, Cantrell replied that he only was trying to remove the children, and Graham told him, "I'll give you five goddamn minutes to get them and get gone." As Graham began to step backwards, Cantrell apparently obtained a pistol from his car. As each man stood with his weapon aimed at the other, both guns fired. Cantrell fell down, still firing his handgun. Mrs. Cantrell then observed Graham attempting to work the pump on the shotgun, without success.
Craig Reese testified that he saw Graham leave the house before the shooting and struggle with Mrs. Cantrell, but he did not see a gun. He then heard "a pistol shot, and then a shotgun and then two or three more pistol shots." Bennie Tanner, who is the sister-in-law of Reese and lived behind the Cantrell house, stated that she heard four or five "bangs" (resembling the sound of firecrackers), followed by one "boom" (resembling a cherry bomb).
Cantrell received a fatal wound to the chest, from a distance of about ten feet. Graham was shot in the heart with a .32 caliber pistol, but survived. Expert medical witnesses called by the State testified that, in their opinion, it was unlikely that Cantrell could have fired the pistol after receiving the fatal wound. There was also evidence that when the shotgun was examined it was jammed by a slug which was embedded in the slide mechanism, rendering it inoperable. One spent shell casing was found within the shotgun. Two more empty shell casings were found on the ground at the scene of the shooting.
1. Graham contends that the trial court erred in declining to direct a verdict of acquittal upon Graham's motions at the close of the State's evidence and at the close of all the evidence. "Where there is no conflict in the evidence and the evidence introduced with all reasonable deductions and inferences therefrom shall demand a verdict of acquittal or 'not guilty' as to the entire offense or to some particular count or offense, the court may direct the verdict of acquittal to which the defendant is entitled under the evidence and may allow the trial to proceed only as to the counts or offenses remaining, if any." OCGA § 17-9-1 (Code Ann. § 27-1802). See Zuber v. State, 248 Ga. 314(3), 282 S.E.2d 900 (1981).
Mrs. Cantrell testified that Graham verbally threatened to kill the victim and fired two shots before the victim ever produced a gun. Evidence that Graham's shotgun was rendered inoperable by a projectile apparently fired from the victim's pistol shows only that the victim fired at least one shot after receiving the fatal wound, which is consistent with Mrs. Cantrell's testimony that the victim continued to fire...
To continue reading
Request your trial
-
Heidler v. State
...v. State, 267 Ga. 124, 125(3), 475 S.E.2d 625 (1996); Fugate v. State, 263 Ga. 260, 262(2), 431 S.E.2d 104 (1993); Graham v. State, 250 Ga. 473, 476(5), 298 S.E.2d 499 ( [273 Ga. 63] 14. After the charge, the State objected that the trial court might have misled the jury regarding the dispo......
-
Fugate v. State
...not error where the defendant not only failed to request such a charge but affirmatively assented to the omission. Graham v. State, 250 Ga. 473(5), 298 S.E.2d 499 (1983). 3. The court's instructions on reasonable doubt were not erroneous. Potts v. State, 261 Ga. 716(14), 410 S.E.2d 89 4. Th......
-
Spence v. State, 40511
...is without merit. The evidence did not demand a verdict of acquittal. See OCGA § 17-9-1 (Code Ann. § 27-1802); Graham v. State, 250 Ga. 473(1), 298 S.E.2d 499 (1983). 2. In his first enumeration of error, appellant alleges that his January 5 statement to police in which he admitted shooting......
-
Sparks v. State, S03A0989.
...of the trial court to charge the law of voluntary manslaughter, absent a written request, was not error. [Cit.]" Graham v. State, 250 Ga. 473, 476(5), 298 S.E.2d 499 (1983). 3. Sparks contends that his trial counsel was ineffective for failing to request a charge on voluntary manslaughter. ......