Hill v. State

• Decision Date: 24 September 2009
• Docket Number: No. A09A1935.,A09A1935.
• Citation: 300 Ga. App. 210,684 S.E.2d 356
• Parties: HILL v. The STATE.
• Court: Georgia Court of Appeals

684 S.E.2d 356

300 Ga. App. 210

HILL v. The STATE.

No. A09A1935.

Court of Appeals of Georgia.

September 24, 2009.

Jimmonique R.S. Rodgers, Fort Gordon, for appellant.

Paul L. Howard, Jr., Dist. Atty., Stephany J. Luttrell, Asst. Dist. Atty., for appellee.

ELLINGTON, Judge.

Nathaniel Hill's brother died from a stab wound to his chest that he received during an altercation with Hill on September 16, 2003. A Fulton County jury found Hill guilty of voluntary manslaughter, OCGA § 16-5-2, as a lesser included offense of felony murder, OCGA § 16-5-1(c); aggravated assault, OCGA § 16-5-21(a)(2) (with an object that when used offensively against a person is likely to result in serious bodily injury); and possession of a knife during the commission of a felony against or involving the person of another, OCGA § 16-11-106(b)(1). Following the denial of his motion for a new trial, Hill appeals, contending, inter alia, that the trial court erred when it refused to give the jury instruction he requested regarding the defense of accident. Hill argues that the accident charge was warranted by evidence adduced at trial that the victim was accidentally impaled on a knife Hill was holding. For the reasons explained below, we reverse.

The record shows that the only eyewitness, a neighbor who was visiting the victim the evening he died, could not say whether Hill intentionally stabbed the victim. The neighbor testified that he was in the restroom when he heard Hill arguing with the victim in the hall between their bedrooms and heard the sounds of a struggle. When the neighbor came out of the restroom, he saw Hill and the victim still "tussling" and then heard the victim say, "he stabbed me." The neighbor never saw any weapons.

Hill testified at trial that he and the victim began arguing after he came home from work that day. According to Hill, he went to the door of the victim's bedroom to speak to the neighbor who was visiting the victim, and the victim forcefully pushed him back into his (Hill's) own room across the hall. Hill testified that the victim, who was much taller than he is, got a large pipe wrench and "put it in batting range." At that point, according to Hill, he felt threatened, and because of that he picked up his work knife, which was lying on his dresser. Hill testified, "I said, `If you hit me, I am going to stick you.' I was just teasing, you know. He ran up [on] me, I swear, he stuck himself. When I stuck him, I caught him [as he fell toward me] because I felt that I had stuck him." Hill theorized that his knife scratched the victim's back as he caught the victim under the arms and that is how the victim acquired a second, superficial knife wound to his back. Hill told the neighbor to call 911 while he gave the victim mouth-to-mouth resuscitation; he did not flee the scene. Hill testified that he did not mean to kill the victim, that he was "sorry for what happened," and that "it was a mistake."

The trial court concluded that evidence that Hill was holding the knife to defend himself after the victim threatened him with a pipe wrench warranted a jury instruction on the defense of justification. The trial court reasoned, however, that the evidence did not also warrant an instruction on the defense of accident because Hill's act of intentionally picking up the knife for that purpose constituted, at the least, criminal negligence.

1. "To authorize a jury instruction on a subject, there need only be produced at trial slight evidence supporting the theory of the charge. Whether the evidence presented is sufficient to authorize the giving of a charge is a question of law." (Citations omitted.) Davis v. State, 269 Ga. 276, 279(3), 496 S.E.2d 699 (1998). With regard to the defense of "accident," OCGA § 16-2-2 provides as follows: "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." Pursuant to OCGA § 16-3-21(a),¹ the defense of justification applies when the defendant "reasonably believed that the imminent use of unlawful force was to be perpetrated against him." Alexis v. State, 273 Ga. 423, 426(4), 541 S.E.2d 636 (2001). Because the defense of justification involves an intentional act and accident does not, both defenses are not generally involved in a single case.² "There is no hard and fast rule, [however, that] in a homicide case . . . the law of accident and of self defense are always `mutually exclusive.'" Turner v. State, 262 Ga. 359, 361(2)(c), 418 S.E.2d 52 (1992). Georgia's appellate courts have recognized that the evidence will support a charge on both justification and accident in a case where the evidence supports an inference that the defendant was armed with a weapon while defending himself or herself from another party and that other party was accidentally wounded or killed by that weapon. Id.³ In such a case, the defendant is not required to elect between the two defenses but is entitled to have the jury, under proper instruction, to determine which, if either, of the defenses is applicable. Hudson v. State, 284 Ga. 595, 597(4), 669 S.E.2d 94 (2008); Koritta v. State, 263 Ga. 703, 704-705, 438 S.E.2d 68 (1994); Turner v. State, 262 Ga. at 361(2)(b), 418 S.E.2d 52. When the evidence supports a charge on both justification and accident, the trial court's failure to give both instructions, when requested by the defendant, is error. Koritta v. State, 263 Ga. at 704-705, 438 S.E.2d 68; Turner v. State, 262 Ga. at 360-361(2)(b), 418 S.E.2d 52; Lewis v. State, 292 Ga.App. 257, 264-266(2), 663 S.E.2d 721 (2008).⁴

Based on the evidence presented in this case, we conclude that at least slight evidence supported the theory that Hill armed himself with the knife in order to fend off the victim's attack with the pipe wrench and that, although he was prepared to intentionally stab the victim in self-defense, he did not do so but, rather, that the victim lunged at Hill and in so doing impaled himself on the knife. Because the defense of accident was raised by the evidence, the trial court erred in not charging the jury on that principle as requested. Turner v. State, 262 Ga. at 361(2)(b), 418 S.E.2d 52. Furthermore, we cannot say that it is highly probable that the failure to give the requested charge did not contribute to the verdict. The evidence against Hill was sufficient but far from overwhelming. Under these circumstances, Hill's voluntary manslaughter and aggravated assault convictions must be reversed. Lewis v State, 292 Ga.App. at 266(2), 663 S.E.2d 721. In addition, Hill's conviction for possession of a knife in the commission of a crime must also be reversed in light of the reversal of his convictions for the underlying crimes of voluntary manslaughter and aggravated assault. Id. The case is remanded for a new trial.

2. In light of the foregoing, Hill's remaining arguments are moot.

Judgment reversed and case remanded.

JOHNSON, P.J., and MIKELL, J., concur.

1. OCGA § 16-3-21(a) provides:

A person is justified in threatening or using force against another when and to the extent that he or she reasonably believes that such threat or force is necessary to defend himself or herself or a third person against such other's imminent use of unlawful force; however, except as provided in Code Section 16-3-23, 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...