Jolly v. State

• Decision Date: 21 June 1990
• Docket Number: No. S90A0352,S90A0352
• Citation: Jolly v. State, 392 S.E.2d 527, 260 Ga. 258 (Ga. 1990)
• Parties: JOLLY v. The STATE.
• Court: Georgia Supreme Court

Page 527

392 S.E.2d 527

260 Ga. 258

JOLLY v.The STATE.

No. S90A0352.

Supreme Court of Georgia.

June 21, 1990.

Lori Spielberger, Jonathan Goldberg, Atlanta, for Jolly.

Lewis R. Slaton, Dist. Atty., Michael J. Bowers, Atty. Gen., Richard C. Litwin, Asst. Atty. Gen., State Law Dept., Atlanta, for State.

Carl Greenberg, Asst. Dist. Atty., Atlanta, Atty. Register.

SMITH, Presiding Justice.

The appellant, James Willie Jolly, was found guilty of the felony murder of Frederick Lavon Bettis and was sentenced to life imprisonment.We affirm.¹

After the appellant and the victim became involved in an argument, the appellant left the scene of the argument and told the victim that he would return.The appellant went to his home, obtained his 30-30 Winchester rifle, and returned to the scene of the argument.The appellant's roommate observed the argument and unsuccessfully attempted to prevent the appellant from returning.Another argument began and the victim walked behind his car toward the trunk.The appellant got out of his car with the rifle, shouted an obscenity at the victim, shot him, and fled the scene.The medical examiner testified that the victim died as the result of a gunshot wound to the back of his left shoulder.

The appellant did not testify at trial, but his statement to the police was read into evidence.He stated he shot the victim because his friend had told him that the victim was going to kill him.He stated that he left the scene because he was afraid.

The jury found the appellant guilty of felony murder with the underlying felony of aggravated assault.

1.We find that a rational trier of fact could have found the appellant guilty of felony murder.Jackson v. Virginia, 443 U.S. 307, 99 S.Ct. 2781, 61 L.Ed.2d 560(1979).

2.The appellant's argument that the jury charge did not specifically instruct the jury that justification is a defense to aggravated assault is similar to arguments in both Alexander v. State, 259 Ga. 440, 383 S.E.2d 877(1989), andJolley v. State, 254 Ga. 624, 628, 331 S.E.2d 516(1985).As stated in Jolley, at 628, 331 S.E.2d 516:

We find ... that a fair reading of the trial court's charge clearly indicates that the court charged that [the defendant's] defense of self-defense could apply to the underlying felony.

3.The indictment for malice murder which alleged that the appellant caused the death of the victim "by shooting him with a rifle, contrary to the law of said state...." included facts sufficient to put the appellant on notice that he was being charged with the felony of aggravated assault and that the aggravated assault could be the underlying felony for a felony murder conviction.Middlebrooks v. State, 253 Ga. 707, 324 S.E.2d 192(1985).

4.The trial court's charge on flight was similar to the charge found not to be unconstitutionally burden-shifting in Terrell v. State, 258 Ga. 722, 724, 373 S.E.2d 751(1988).We find no error.

5.The trial court did not err in instructing the jury that if it found the appellant not...