Lee v. State
| Decision Date | 06 March 1995 |
| Docket Number | No. S94A1771,S94A1771 |
| Citation | 265 Ga. 112,454 S.E.2d 761 |
| Parties | LEE v. The STATE. |
| Court | Georgia Supreme Court |
Janice A. Singer, Atlanta, Richard Hicks, Roswell, for Lee.
Thomas J. Charron, Dist. Atty., Marietta, Michael J. Bowers, Atty. Gen., Atlanta, Amy Hembree McChesney, Asst. Dist. Atty., Cobb County Dist. Attorney's Office, Marietta, for State.
Frank Cox, Asst. Dist. Atty., Marietta.
This appeal follows appellant's conviction of felony murder wherein the victim died from two gunshot wounds: one in the chest from a range of 6 to 8 inches and one behind the victim's ear from a range of 1 to 1 1/2 inches. The fatal wounds were made by a .38 pistol. 1
1. Evidence at trial established that appellant had, on several occasions, confronted the victim and the victim's wife regarding an alleged affair that the victim was having with appellant's former wife. Appellant testified that the affair had destroyed his marriage and was preventing a reconciliation. In an attempt to convince the victim to stop seeing appellant's former wife, appellant, a resident of Texas, flew to Atlanta to confront the victim, bringing with him a .38 pistol. Because the victim was out of town, however, appellant flew back to Texas and subsequently returned to Atlanta at a later date.
When appellant arrived at the victim's residence the second time, he again brought the gun. The victim was at home and allowed appellant inside where the two men sat down at the kitchen table and began to converse. According to appellant, the victim refused to end the affair and taunted appellant about his manhood. Appellant placed the gun on the table, stating to the victim that he did not want to see the victim die since the victim's wife and child would suffer. Appellant testified that he fired twice when the victim grabbed at his gun and lunged at him with a pair of scissors. Police officers found a pair of scissors in the victim's right hand. A forensic expert testified at trial that the victim was shot while in a seated position. After shooting the victim, appellant attempted to erase his fingerprints from the door, and placed a white powdery substance around the victim's mouth and around a soft drink can in order to make the killing appear drug-related. He then flew back to Texas and pawned the gun.
2. We conclude that a rational trier of fact could have found appellant guilty of the crime of felony murder beyond a reasonable doubt. Jackson v. Virginia, 443 U.S. 307, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979).
3. a) Appellant contends that the trial court erred by instructing the jury on all subsections of the justification statute. 2 Specifically, appellant contends that the trial court should have instructed only on OCGA § 16-3-21(a) and (b)(1), and should not have instructed on (b)(2) or (b)(3). We find no error.
Keller v. State, 245 Ga. 522(1), 265 S.E.2d 813 (1980); accord Estes v. State, 251 Ga. 347(2), 305 S.E.2d 778 (1983). Viewing the charge in its entirety, the charge on the entire justification statute was not error, see Jolley v. State, 254 Ga. 624, 331 S.E.2d 516 (1985), and may have even been beneficial to appellant since the evidence indicated that he purchased a gun in Texas and flew to Atlanta to confront the victim. See Keller, supra.
b) Appellant also contends that the trial court erred in failing to include a verdict form for the jury which allowed the jury to find appellant not guilty if it found appellant acted in self-defense. This enumeration of error lacks merit. Prior to the trial court charging the jury, appellant's counsel approved the form of the verdict, thereby waiving any possible error. Earnest v. State, 262 Ga. 494(3), 422 S.E.2d 188 (1992). See Thompson v. State, 211 Ga.App. 887(1), 440 S.E.2d 670 (1994).
c) During its deliberations, the jury asked for a recharge on murder and voluntary manslaughter. Appellant asserts that the trial court erred when it failed to include a charge on self-defense in the recharge. This contention is without merit as "[t]he need, breadth, and formation of additional jury instructions are left to the sound discretion of the trial court," Peebles v. State, 260 Ga. 165(5)(a), 391 S.E.2d 639 (1990), and appellant neither requested a recharge nor objected to the trial court's failure to give such a recharge. See Williams v. State, 262 Ga. 422(4), 420 S.E.2d 301 (1992).
4. Appellant enumerates as error the trial court's refusal to grant a mistrial after the State commented upon appellant's failure to call his former wife as a witness and speculated as to what her testimony might have been. Appellant contends that he and his former wife should be considered common law husband and wife because they resumed living together after the divorce, and that under James v. State, 223 Ga. 677, 157 S.E.2d 471 (1967), she was not compellable to testify for or against him.
Because appellant failed to object to the state's comment on this ground, he has not preserved this issue for appeal. Williams, supra. At trial, appellant asserted that the State's comment on the failure of appellant's former wife to testify implied that the defense had a burden of bringing forward evidence. However, appellant testified that he and his former wife were planning to reconcile and that the victim's affair with her was preventing such reconciliation. Because it is permissible to argue unfavorable inferences when a defendant fails to produce a witness after his testimony indicates that persons with relevant information may exist, Dorsey v. State, 204 Ga. 345(3), 49 S.E.2d 886 (1948) (see also Blige v. State, 263 Ga. 244, 245 (n. 1), 430 S.E.2d 761 (1993)), we conclude that the State's comment was not improper on the ground asserted at trial.
5. Appellant contends that the trial court violated his due process rights because he was convicted of felony murder when the evidence showed that he committed an aggravated assault upon the victim and death occurred. He contends that no independent felony was involved. We visited this issue in Edge v. State, 261 Ga. 865, 414 S.E.2d 463 (1992) where we adopted the partial merger rule, making it permissible to convict appellant of felony murder with aggravated assault as the underlying felony. Therefore, this enumeration of error lacks merit.
6. Appellant also asserts that the State misstated part of his testimony in its closing argument. 3 Because no objection was made at trial, see Williams, supra, nor does appellant even suggest how he might have been prejudiced by the misstatement, see Roberts v. State, 243 Ga. 604(11), 255 S.E.2d 689 (1979), we find no error.
7. Appellant asserts that the trial court's charge on voluntary manslaughter was improper because it included references to malice when he was acquitted of malice murder at his first trial. Appellant specifically contends that the court's charge allowed the jury to convict him for malice murder even though he was not on trial for that offense.
In instructing the jury, the trial court read verbatim the indictment charging appellant with felony murder. The trial court charged the jury on the law of felony murder and aggravated assault, omitting any reference to the offense or statutory elements of malice murder. The trial court also charged on voluntary manslaughter, giving the pattern jury instruction. Suggested Pattern Jury Instructions, Vol. II, Criminal Cases, p. 73. The court also gave the pattern jury instruction on intent to kill. Suggested Pattern Jury Instructions, Vol. II, Criminal Cases, p. 76.
We recognize that this case presents an unusual situation involving possible verdicts of felony murder or voluntary manslaughter and excluding any possible verdict of malice murder. This situation was brought about by the acquittal of appellant on the charge of malice murder during the first trial. See Lee v. State, 262 Ga. 593, 423 S.E.2d 249 (1992). Although the trial court should have...
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