Joachim v. State, S93A1933
| Citation | 440 S.E.2d 15,263 Ga. 816 |
| Decision Date | 21 February 1994 |
| Docket Number | No. S93A1933,S93A1933 |
| Parties | JOACHIM v. The STATE. |
| Court | Supreme Court of Georgia |
W. Edward Nethery, DeKalb County, Decatur, for Joachim.
Robert M. Coker, Asst. Dist. Atty., Decatur, Michael J. Bowers, Atty. Gen., Atlanta, J. Tom Morgan, Dist. Atty., Robert E. Statham, III, Asst. Dist. Atty., Decatur, for the State.
Susan V. Boleyn, Sr. Asst. Atty. Gen., Department of Law, Atlanta.
Peggy R. Katz, Staff Atty., Atlanta, for other appellee.
This appeal follows appellant's conviction of and sentencing for felony murder and possession of a firearm during commission of a crime. 1 The evidence adduced at trial authorized the jury to find the following as facts. On the occasion of the shooting, appellant was a passenger in a car driven by Cato and occupied by Cooks. Cato had taken McLean, at her request, to the home where the victim, Garner, by whom McLean had a child, resided with his parents and his brother, Woods. When McLean arrived and saw a car there which she correctly believed to belong to another woman, she wrote the victim a note and then called him from the nearby home of a friend. Garner left his home and met McLean outside. As they argued, Cooks and Cato got out of Cato's car and joined the dispute. When Woods came outside, he escalated the level of conflict by physically attacking Cato, who ran. Woods then turned his attention to Cooks, who was being pistol-whipped by Garner who had retrieved a gun from the trunk of his date's car. After jointly beating Cooks, Garner and Woods turned away to return to their house. Appellant, who had remained in the car throughout the struggles, then fired a pistol several times from inside the car, striking Garner once in the back, fatally.
1. In his first enumeration of error, appellant contends that the evidence was insufficient to convict him of felony murder because the State failed to disprove his justification defense beyond a reasonable doubt. Appellant testified that he shot to protect Cooks' life which he reasonably believed to be in danger because Garner had held a gun to Cooks' head, threatening to kill him, and because Garner was beginning to point the gun toward Cooks' head again. That testimony placed the defense of justification before the jury and placed on the State the burden of disproving the defense beyond a reasonable doubt. Anderson v. State, 262 Ga. 7, 413 S.E.2d 722 (1992). Contradicting appellant's testimony regarding justification was the testimony of Woods and Cooks, both of whom testified that Garner and Woods had withdrawn from the fray and were returning to their house when appellant fired. The issue thus became one of credibility, which is for the jury to decide. Willingham v. State, 262 Ga. 324, 418 S.E.2d 25 (1992). The jury, by its verdict, indicated that it believed the evidence contrary to appellant's justification defense. Our review of the evidence persuades us that it was sufficient to disprove the justification defense beyond a reasonable doubt and to authorize a rational trier of fact to find appellant guilty beyond a reasonable doubt of felony murder (aggravated assault) and possession of a firearm during commission of a crime. Jackson v. Virginia, 443 U.S. 307, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979).
2. Appellant's complaint about his conviction of the felony murder count predicated on possession of a firearm by a first offender probationer is moot in light of the trial court's merger of that count into the conviction for felony murder predicated on aggravated assault. Kennedy v. State, 205 Ga.App. 152, 421 S.E.2d 560 (1992). See also Wade v. State, 258 Ga. 324(2), 368 S.E.2d 482 (1988).
3. In his final enumeration of error, appellant asserts that he was entitled to a new trial because of juror misconduct. After the announcement of the verdict and the dismissal of the jury, two jurors reported to the trial court that a third juror had made negative comments about a witness based on knowledge from her employment as a teacher at the school attended by the witness. The trial court informed counsel at sentencing of that development and appellant raised juror misconduct as a ground in his motion for new trial. At the motion for new trial hearing, ten jurors testified and the other two submitted affidavits. All 12 testified that the verdict was based solely on the evidence and that the comments of the one juror did not affect the verdict.
Appellant asserts that his case is like Watkins v. State, 237 Ga. 678, 229 S.E.2d 465 (1976), where two jurors went to the crime scene and gathered crucial information...
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