Hicks v. The State

• Decision Date: 19 April 2010
• Docket Number: No. S10A0177.,S10A0177.
• Citation: 287 Ga. 260,695 S.E.2d 195
• Parties: HICKSv.The STATE.
• Court: Georgia Supreme Court

287 Ga. 260

695 S.E.2d 195

HICKSv.The STATE.

No. S10A0177.

Supreme Court of Georgia.

April 19, 2010.

Sheueli C. Wang, Atlanta, for appellant.

Paul L. Howard, Jr., District Attorney, Bettieanne C. Hart, John O. Williams, Asst. Dist. Attys., Thurbert E. Baker, Attorney General, Reggie A. Lampkin, Assistant Attorney General, for appellee.

THOMPSON, Justice.

Appellant Deanthony Rashawn Hicks was convicted of malice murder and possession of a firearm during the commission of a felony in connection with the fatal shooting of Michael Howard.¹ He appeals from the denial of his motion for new trial, asserting that the evidence was insufficient to sustain his murder conviction, and that the trial court erred in refusing his requests to instruct the jury on justification by use of force in defense of others and voluntary manslaughter. For the reasons that follow, we affirm.

Viewed in a light most favorable to the verdict, the evidence shows that a group of friends had congregated at a cul-de-sac in a residential subdivision when, following an argument between the victim and Tierra Vinson, appellant appeared from a corner of the street wielding a pistol. He approached the victim pointing the pistol in his face. The unarmed victim swatted at the firearm and then attempted to run away. As the victim turned and ran, appellant shot him three times in the back, killing him. Appellant left the scene along with co-defendant Soupaisith Ratana in Ratana's vehicle. ²

Eyewitness Quatavius Berry could not identify appellant in a photographic lineup, but he did identify him as the shooter at trial. Witnesses Jamilah Hamilton and appellant's former girlfriend, Keosha Cox, were present at the time of the shooting and identified appellant from a photographic lineup. Both Hamilton and Cox told police that appellant was running behind the victim at the time of the shooting, and Cox said he was responsible for the murder. At trial, however, both witnesses recanted their previous statements: Hamilton denied seeing appellant run after the victim and Cox claimed that she was intoxicated at the time.

1. Appellant contends that the evidence was insufficient to support the murder conviction because Berry's identification of him as the shooter was not credible, and the only other evidence implicating him consisted of the recanted statements of Cox and Hamilton.

While Berry failed to identify appellant from a photographic lineup, he testified at trial that appellant was responsible for the shooting. In addition to witness testimony implicating appellant, police found bullets of the same caliber used to shoot the victim in co-defendant Ratana's vehicle soon after the shooting. The jury was also shown transcripts and video recordings of statements given to the police by both Cox and Hamilton, in which they implicated appellant. This evidence was ample for any rational trier of fact to find appellant guilty beyond a reasonable doubt of the crimes for which he was convicted. Jackson v. Virginia, 443 U.S. 307, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979). “[Appellant's] contention that the evidence was conflicting and that the witnesses who testified for the state were not credible does not change this result, as ‘resolving evidence conflicts and inconsistencies, and assessing witness credibility, are the province of the factfinder, not this Court.’ ” Major v. State, 280 Ga. 746, 747, 632 S.E.2d 661 (2006).

2. Appellant asserts as error the trial court's refusal to give his requested jury instruction on justification by use of force in defense of others. Under OCGA § 16-3-21(a), “a person is justified in using force which is intended or likely to cause death or great bodily harm only if he or she reasonably believes that such force is necessary to prevent death or great bodily injury to himself or herself or a third person or to prevent the commission of a forcible felony.” This is an affirmative defense.

With a legal affirmative defense, the accused admits the elements of the crime, but seeks to justify, excuse, or

mitigate by showing no criminal intent; all elements of the parts of the crime are admitted with the exception of the intent. All defenses which have been held to be statutory affirmative defenses meet this criteria; i.e., justification, self-defense or defense of others.... Each of these affirmative defenses requires that the defendant admit the crime before he can raise such defense.

Brower v. State, 298 Ga.App. 699, 702(1), 680 S.E.2d 859 (2009). See also Broussard v. State, 276 Ga. 216(2), 576 S.E.2d 883 (2003) ( “[j]ustification is an affirmative defense whereby the defendant admits acting with the intent to inflict an injury, but claims that he did so while in reasonable fear of suffering immediate serious harm to himself or another”); Brown v. State, 267 Ga. 350(2), 478 S.E.2d 129 (1996) (“ ‘[a]n affirmative defense is a defense that admits the doing of the act charged but seeks to justify, excuse, or mitigate it’ ”); Lightning v. State, 297 Ga.App. 54(5), 676 S.E.2d 780 (2009) (a defendant must admit the act or he is not entitled to a charge on justification).

During opening statement and in closing argument, appellant's counsel proffered the sole theory of the defense-that some other, unidentified person in the group at the cul-de-sac was the shooter and that appellant was the “convenient fall guy” who was wrongfully charged. The defense presented no evidence. Appellant asserts that his requested charge was authorized because the evidence established that the victim and Vinson had been arguing and it could be inferred that appellant intervened in Vinson's defense.

To authorize a requested jury instruction, there need only be slight evidence supporting the theory of the charge. Davis v. State, 269 Ga. 276(3), 496 S.E.2d 699 (1998). “Whether the evidence presented is sufficient to authorize the giving of a charge is a question of law.” Id. It is not error to refuse a justification charge where there is no evidence to support it. Alexis v. State, 273 Ga. 423(4), 541 S.E.2d 636 (2001). Appellant points to no evidence that he entered the fracas in defense of Vinson. In addition, the undisputed evidence established that the unarmed victim was shot three times in the back as he was attempting to flee after appellant assaulted him with a firearm. We therefore conclude that appellant “could not have been in imminent fear at the time he committed the acts for which he was being tried.” Broussard, supra at 217, 576 S.E.2d 883. Because “no construction of the evidence would support a finding that [appellant] shot in self-defense, the trial court properly refused to charge on that issue.” Id. Compare Williams v. State, 209 Ga.App. 355(1), 433 S.E.2d 361 (1993) (where defendant offered conflicting alternative evidence-first admitting to being involved in the altercation, and then denying that she committed the crime-it was error to refuse to give a charge on justification).

3. Appellant also contends that the trial court erred in refusing to give his requested jury instruction on voluntary manslaughter as a lesser included crime of malice murder.

“Voluntary manslaughter is not a defense to murder, but it may be a lesser included offense of that crime.” Sparks v. State, 277 Ga. 72, 73(2), 586 S.E.2d 645 (2003).

A person commits the offense of voluntary manslaughter when he causes the death of another human being under circumstances which would otherwise be murder and if he acts solely as the result of a sudden, violent, and irresistible passion resulting from serious provocation sufficient to excite such passion in a reasonable person....

OCGA § 16-5-2(a); see also Brennon v. State, 253 Ga. 240, 241, 319 S.E.2d 841 (1984). Again appellant argues that the altercation between the victim and Vinson provided the “serious provocation” which caused appellant to act with “sudden, violent,...