Latimore v. State

• Decision Date: 08 October 1992
• Docket Number: No. S92A0870,S92A0870
• Citation: 421 S.E.2d 281,262 Ga. 448
• Parties: LATIMORE v. The STATE.
• Court: Georgia Supreme Court

Page 281

421 S.E.2d 281

262 Ga. 448

LATIMORE v. The STATE.

No. S92A0870.

Supreme Court of Georgia.

Oct. 8, 1992.

Robert H. Cofer, Thomson, for Latimore.

Dennis Sanders, Dist. Atty., Thomson, Michael J. Bowers, Atty. Gen., Susan V. Boleyn, Sr. Asst. Atty. Gen., Dept. of Law, Peggy R. Katz, Staff Atty., Atlanta, for the State.

SEARS-COLLINS, Justice.

Tracy Lee Latimore fatally shot Deborah Pearson on February 6, 1991. After a bench trial, Latimore was convicted of murder and possession of a firearm during the commission of a crime, and he was sentenced to life imprisonment for the murder conviction and to a consecutive sentence of five years imprisonment for the weapons possession conviction. ¹ We affirm.

Latimore and Pearson had been living together prior to the shooting. According to Latimore, Pearson saw him talking with his former girlfriend several days before the incident. An argument ensued between Pearson and Latimore which continued into the morning of the shooting. On that morning, Pearson told Latimore that she was leaving him and walked out of the house. Latimore pursued her and told her to stop. When she refused to stop, Latimore returned to the house, retrieved a rifle from the bedroom, ran outside and fired the rifle from the hip at Pearson.

Pearson was struck in the back and fell to the ground. Latimore fled the scene, and Pearson was able to make her way across a road to a neighbor's house. Paramedics were summoned, and they attempted to transport Pearson to the hospital. Although she was bleeding internally and suffering from shock, she remained conscious and identified Latimore as the person who shot her. She died soon after arriving at the hospital.

Latimore was apprehended in a wooded area approximately one mile from the scene of the crime. After the police administered Miranda warnings, Latimore executed a waiver of counsel and made an in-custody statement to a GBI agent. In that statement, Latimore admitted to shooting Pearson after arguing with her and stated that he watched Pearson fall and then fled into the woods. Latimore also stated that he did not aim the rifle at Pearson.

At trial, Latimore testified he fired the rifle only to scare Pearson and did not intend to kill her. Moreover, Latimore's attorney argued that, under the facts of the case, the court could find him guilty of voluntary manslaughter but not murder. As noted above, the trial court found Latimore guilty of murder.

In his sole assertion of error, Latimore urges that his murder conviction should be reversed because the trial evidence only showed that Pearson's death resulted from a crime of passion, lacking any foundation of premeditation and intention on his part to kill Pearson. We disagree.

First, premeditation is not a specific element of murder in Georgia. Burnett v. State, 240 Ga. 681, 242 S.E.2d 79 (1978). Second, malice incorporates the intent to kill, Patterson v. State, 239 Ga. 409, 416, 238 S.E.2d 2 (1977), and may be implied where the facts show that the accused acted with an abandoned and malignant heart, absent a showing of considerable provocation. OCGA § 16-5-1. ²

"It is for the [trier of fact] to determine whether any killing is intentional and malicious from all the facts and circumstances. Smith v. State, 238 Ga. 581, 234 S.E.2d 500 (1977)." Blair v. State, 245 Ga. 611, 614, 266 S.E.2d 214 (1980). The evidence presented at trial showed that after Pearson informed Latimore that she was leaving him, he retrieved the murder weapon from their home and shot her in the back as she was walking away from him. He then fled the scene even though Pearson was still alive and in need of medical assistance. Assuming, without deciding, that Latimore did not aim the weapon at Pearson, his discharge of a deadly weapon in the immediate vicinity of other...