Grude v. State, 77379

• Decision Date: 23 January 1989
• Docket Number: No. 77379,77379
• Citation: 377 S.E.2d 731,189 Ga.App. 901
• Parties: GRUDE v. The STATE.
• Court: Georgia Court of Appeals

Page 731

377 S.E.2d 731

189 Ga.App. 901

GRUDE v. The STATE.

No. 77379.

Court of Appeals of Georgia.

Jan. 23, 1989.

Michael T. McClain, Atlanta, for appellant.

Lewis R. Slaton, Dist. Atty., Richard E. Hicks, Asst. Dist. Atty., for appellee.

CARLEY, Chief Judge.

Appellant was tried before a jury on an indictment which charged him with commission of aggravated assault by shooting the victim with a handgun. He appeals from the judgment of conviction and sentence entered on the jury's verdict of guilty.

1. Appellant enumerates as error the trial court's refusal to give a requested jury instruction on the defense of accident or misfortune.

"A person shall not be found guilty of any crime committed by misfortune or accident where it satisfactorily appears there was no criminal scheme or undertaking, intention, or criminal negligence." (Emphasis supplied.) OCGA § 16-2-2. Although appellant gave conclusory testimony that the shooting of the victim had been an accident, his description of the actual events shows that the shooting was nevertheless the result of his criminal conduct. Appellant testified that the victim, who had been sharing his dwelling, was packing to move out. Appellant armed himself with a pistol for a confrontation with the victim because he was "insistent" on getting his keys back. Appellant stated that, as he had approached the victim from behind, he pulled the gun out of his pocket and, in doing so, he unintentionally "hit her in the back of the head" with the weapon. The gun then discharged and the victim was struck by the bullet.

Appellant's testimony clearly does not show that his shooting of the victim was the result of an "accident," and not the result of his intent to commit a crime upon the victim. His testimony shows only that his criminal attempt to commit an aggravated assault upon the victim was "accidentally" completed in a manner other than he had intended. At the time the gun discharged, appellant's own testimony shows that he was engaged in an attempt to commit an aggravated assault upon the victim by drawing the gun and pointing it at her. See OCGA § 16-5-20(a)(2). He would not be entitled to a charge on the defense of accident simply because his criminal attempt had the unintended consequence of completing the offense by actually causing a violent injury to the victim. See OCGA § 16-5-20(a)(1). "[A]ppellant pointed a pistol at the victim[, and t]hat constitutes the felony of aggravated assault. [Cit.]" Smith v. State, 253 Ga. 476, 477(3), 322 S.E.2d 58 (1984). "Of necessity the pistol was pointed at the [victim] when she was [hit] by the bullet fired from that pistol." Brown v. State, 150 Ga.App. 831, 834(4), 258 S.E.2d 641 (1979). "Where, as in the instant case, it is shown by the evidence, and admitted [by appellant], that the [violent injury to the victim] occurred by the discharge of a gun held by the accused and used in an attempt to [place the victim in reasonable apprehension of immediately receiving a violent injury], even if the discharge of the gun was unintentional, the offense is [aggravated assault]; and in no view of such facts does it involve ... accident .... Accordingly, the court properly declined to give the requested [charge]. [Cits.]" Ford v. State, 202 Ga. 599, 603(3), 44 S.E.2d 263 (1947).

2. The trial court excluded testimony from certain defense witnesses which was to the effect that, in out-of-court statements, appellant had described the shooting as an accident. Appellant enumerates this evidentiary ruling as erroneous under Cuzzort v. State, 254 Ga. 745, 334 S.E.2d 661 (1985).

"[I]t is a well-established general rule that a statement of a party, whether oral or written, which is of a self-serving nature is not admissible in his favor." Denton v. Etheridge, 73 Ga.App. 221(3), 36 S.E.2d 365 (1945). Thus, in a criminal case, "self-serving declarations made by a defendant are not admissible. [Cit.]" Thomas v. State, 248 Ga. 247, 252(10), 282 S.E.2d 316 (1981). Appellant has cited no case, and we have found none, holding that this "well-established general rule" has been abrogated by the Supreme Court's opinion in Cuzzort, supra. See Beck v. State, 254 Ga. 51, 53(11), 326 S.E.2d 465 (1985) (wherein the rule was applied by a unanimous Supreme Court shortly before Cuzzort was decided). It would not appear that Cuzzort purports to address the issue of the admissibility of self-serving declarations. The out-of-court declarations in Cuzzort were made by the victim and were to the effect that she had been molested by the defendant. Such out-of-court declarations were not self-serving of the victim, but were inculpatory of the defendant.

However, even assuming that Cuzzort were to be construed as overruling sub silentio the "well-established general rule" that self-serving, out-of-court declarations are inadmissible, there was no error in disallowing the...