Hardy v. State
| Decision Date | 05 December 1978 |
| Docket Number | No. 34249,34249 |
| Citation | 242 Ga. 702,251 S.E.2d 289 |
| Parties | HARDY v. The STATE. |
| Court | Georgia Supreme Court |
Hubert E. Hamilton, III, Macon, for appellant.
W. Donald Thompson, Dist. Atty., Thomas J. Matthews, Asst. Dist. Atty., Arthur K. Bolton, Atty. Gen., W. Davis Hewitt, Staff Asst. Atty. Gen., Atlanta, for appellee.
Appellant was convicted of felony-murder and sentenced to life imprisonment. He appeals. We affirm.
1. The evidence was sufficient to support the verdict. The state submitted evidence from which the jury could reasonably conclude that the appellant critically wounded Douglas Rozier, a fellow student and fraternity initiate, by stabbing him repeatedly with a hunting knife, then sought to conceal the crime by disposing of the knife and persuading another student, Dwight Cornelius, to corroborate his story that the two of them found Rozier bleeding in the parking lot and did not know what had happened to him. Through the testimony of Ellwood Wynn, the state showed Hardy, Rozier and Cornelius began drinking at an apartment Wynn shared with Rozier, the victim, at 9 a. m. on March 4, 1978, and they continued to do so until nearly 8:30 p m. The three students left the apartment. Wynn went to a party and left it to go to Carter's store. While crossing a field, he was accosted by the three students who jostled him, knocked him around and dislodged a lens out of his glasses. He protested and Rozier and Cornelius left, but Hardy persisted, brandishing an open knife while executing karate stances and seeking to entice Wynn into a fight. Wynn was unarmed. Rozier returned and Hardy left. Rozier told Wynn he should apologize to Hardy. Cornelius then testified Rozier rejoined them, and they drove to a nearby parking lot near their fraternity room. They rehearsed their lines for an initiation and got out of the car. Rozier and Hardy commenced to run, Rozier in front and Hardy following brandishing the open knife at him. Hardy pushed Rozier up against a wire fence and "poked" at him with the knife repeatedly. Hardy stepped back, left the parking lot and went into the fraternity room in Ohio Hall. Cornelius stated he did not know if the men were arguing or not. He examined Rozier after Hardy left, saw blood on his hand, then he also left to join Hardy. They went back and found Rozier's sides covered with blood. Hardy then ran for help, returning with two security guards. He and Cornelius told the guards they did not know what had happened and that they had found Rozier in the parking lot. Later, Wynn was questioned by police and officers then confronted Cornelius regarding the inconsistency in his statement. He then changed his story and told the facts of what had transpired. Hardy was arrested on a charge of aggravated assault. A search failed to reveal the knife. Expert testimony established Rozier died on March 23, 1978, death resulting from the inability of the heart to supply blood to the brain. An autopsy showed Rozier had received a puncture wound in the lower right abdomen and a thrust, delivered with some force, that penetrated his chest, a rib, his left lung and entered the left ventricle of his heart. Appellant was indicted for murder. The court charged on malice murder, felony murder, aggravated assault with a deadly weapon and involuntary manslaughter. There is no merit to enumerations of errors 4, 16 and 17 challenging the sufficiency of the evidence to support the verdict.
2. Appellant's enumerations of errors 1 and 2 attack the holding of this court in Baker v. State, 236 Ga. 754, 225 S.E.2d 269 (1976), in which we refused to adopt the merger doctrine and held that an underlying felony of aggravated assault could support a felony-murder conviction. Appellant argues the trial court erred in charging on felony-murder and suggests this court should overrule, modify or distinguish Baker, supra, and reverse the conviction here. We decline to do so and reject appellant's argument that the conviction was improper or that a charge on felony murder was error. These enumerations are without merit.
3. Appellant contends in enumeration of error 15 that the trial court erred in denying his motions for mistrial and in failing to grant his motion for new trial where a juror, dispersed under instruction, and a state's witness, Ellwood Wynn, with Wynn's landlord and the landlord's son-in-law, rode together to a local restaurant, ate lunch and returned to the court. Prior to the jury beginning its deliberations, defense counsel notified the court he had witnessed the group at lunch "laughing and talking." The court conducted an investigation into the misconduct of the juror, and the four men testified under oath, subject to cross examination, that they were aware of the court's instructions to the jury and they did not discuss the case at any time. Such testimonial evidence is an acceptable means of proof to meet the burden cast upon the state, in such circumstances, to rebut by proof a presumption of harm. Suple v. State, 133 Ga. 601, 66 S.E. 919 (1909); Battle v. State, 234 Ga. 637, 217 S.E.2d 255 (1975). Appellant shows no injury requiring a new trial, and we conclude the trial court was correct in finding the state met its burden of proof and that no prejudice to the defendant was shown by the juror's misconduct. Morakes v. State, 201 Ga. 425, 434, 40 S.E.2d 120 (1946); Roberts v. State, 14 Ga. 8 (1853). Compare Martin v. State 242 Ga. 699, 251 S.E.2d 240 (1978). The cases cited by appellant are distinguishable on their facts or are supportive of our holding here.
4. The remaining enumerations of error challenge the charge of the court.
( a) There was no error in charging that malice may be presumed and may arise from a reckless disregard for human life. Myrick v. State, 199 Ga. 244, 34 S.E.2d 36 (1945). Nor was it error to charge that the law presumes the intent to kill when a person uses a deadly weapon or instrumentality in the manner in which such weapon or instrumentality is ordinarily employed to produce death. Code Ann. § 26-1302(b). These charges were properly given under the court's instruction regarding malice murder and were not erroneous or prejudicial to appellant. Enumeration 5 is without merit.
( b) In Enumeration 6, appellant contends the charge on presumption of intent to kill which arises from the use of a deadly weapon is error, because, if not burden-shifting, its use under the facts of this case deprived him of due process. We...
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