Graham v. State

• Decision Date: 14 January 2002
• Docket Number: No. S01A1809.,S01A1809.
• Citation: 274 Ga. 696,558 S.E.2d 395
• Court: Georgia Supreme Court
• Parties: GRAHAM v. The STATE.

558 S.E.2d 395

274 Ga. 696

GRAHAM v. The STATE.

No. S01A1809.

Supreme Court of Georgia.

January 14, 2002.

Richard M. Darden, Savannah, for appellant.

Spencer Lawton, Jr., Dist. Atty., Christine S. Barker, Asst. Dist. Atty., Thurbert E. Baker, Atty. Gen., Tammie J. Philbrick, Asst. Atty. Gen., for appellee. BENHAM, Justice.

Appellant Alexander Graham III was found guilty of and sentenced for the malice murder of Derek Folston and for possession of a firearm during the commission of a crime.¹ After reviewing the record and transcript in light of appellant's enumeration of errors, we affirm the judgment of conviction entered against him.

1. The State presented evidence that the victim was shot in the thigh from more than two to three feet away and suffered a fatal bullet wound to his stomach when the gun was fired with its muzzle in contact with his clothing. A companion with the victim testified that the car in which he and the victim were driving suffered mechanical failure near midnight and the victim had steered it into a closed gas station, raised the hood, and was working on the engine when the witness heard shots fired and the victim scream. The witness saw the victim and a man he identified as appellant wrestling for possession of a gun, heard two more shots, and saw the victim fall to the ground. Appellant then drove away from the scene. The victim's sister testified that appellant had driven by the Folston home six months earlier and had fired shots at the occupied house. According to the victim's sister, two days after that incident, appellant had accosted the witness and her brother, pointed a gun at them, and threatened to kill them.

Appellant's sister testified that the victim and two of his brothers had driven by the Graham home on the same day appellant had purportedly threatened the victim and his sister, and fired shots into that occupied home. Appellant testified that, the night the victim was killed, appellant was using a phone booth near the gas station when the victim drove by and stopped. Appellant saw the victim exit the car and, fearing the victim had a gun, appellant fired his gun twice at the victim in order to scare him. When appellant next looked back, the victim had reached him and grabbed the hand in which he was holding his gun. According to appellant, the two struggled over the gun and the gun went off two more times, resulting in the victim's fatal wound.

The jury was instructed on the law of justification and "[w]hether the circumstances of the confrontation between the victim and appellant were such as to excite the fears of a reasonable person that he had to use deadly force in order to prevent the use of deadly force against him is a question for the jury." Andrews v. State, 267 Ga. 473(1), 480 S.E.2d 29 (1997). The evidence was sufficient for a rational trier of fact to conclude beyond a reasonable doubt that appellant shot and killed the victim with malice aforethought. Jackson v. Virginia, 443 U.S. 307, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979); Andrews v. State, supra.

2. Contending that the criteria of Williams v. State, 261 Ga. 640, 409 S.E.2d 649 (1991), were not met, appellant maintains the trial court erroneously permitted the State to introduce the evidence of the prior acts of violence committed by appellant against the victim, i.e., the shooting at the victim's occupied home and pointing a gun at the victim and his family and threatening to kill them. However, it is not necessary for the trial court to conduct a pre-trial hearing and make the Williams ` findings before evidence of prior difficulties between the victim and the defendant is admissible since evidence of a defendant's prior acts toward the victim is admissible because the prior acts are evidence of the relationship between the two and may show the defendant's motive, intent, and bent of mind in committing the act for which he is being tried. Wall v. State, 269 Ga. 506(2), 500 S.E.2d 904 (1998). Accordingly, the admission of the evidence was not error. Pye v. State, 269 Ga. 779(7), 505 S.E.2d 4 (1998).

3. Appellant next complains that the trial court erred when it refused to let him present evidence of specific acts of violence purportedly committed by the victim against third parties. The evidence of the victim's acts of violence against third parties is admissible when the defendant claims justification, follows procedural requirements, establishes the existence of the prior violent acts by competent evidence, and makes a prima facie showing of justification. Laster v. State, 268 Ga. 172(2), 486 S.E.2d 153 (1997). A prima facie case of justification is established by showing that the victim was the aggressor, the victim assaulted the defendant, and the defendant was honestly trying to defend himself. Phillips v. State, 271 Ga. 489(2), 521 S.E.2d 573 (1999). Appellant's testimony that he thought the victim had a gun and that he fired at the...