Lewis v. State

• Decision Date: 27 May 2008
• Docket Number: No. A08A0015.,A08A0015.
• Citation: 292 Ga. App. 257,663 S.E.2d 721
• Parties: LEWIS v. The STATE.
• Court: Georgia Court of Appeals

292 Ga. App. 257

663 S.E.2d 721

292 Ga.App. 257

LEWIS v. The STATE.

No. A08A0015.

Court of Appeals of Georgia.

May 27, 2008.

Reconsideration Denied June 26, 2008.

Perry & Walters, Misty Garrett Haskins, George P. Donaldson III, Albany, for Appellant.

J. David Miller, Dist. Atty., Brian Allen McDaniel, Asst. Dist. Atty., for Appellee.

BERNES, Judge.

Robert William Lewis was convicted of voluntary manslaughter, aggravated assault, two related counts of possession of a firearm in the commission of a crime, and unlawful possession of a sawed-off shotgun. The trial court subsequently denied his motion for new trial. On appeal, Lewis contends that the trial court erred by denying his motion for a directed verdict of acquittal because there was insufficient evidence to convict him; refusing to charge the jury on the law of justification and the related principle of "no duty to retreat"; refusing to allow testimony by third parties as to prior violent acts by the victim; and allowing the state to waive its closing argument until after he presented his closing argument. We affirm appellant's conviction for the unlawful possession of a sawed-off shotgun. However, because the trial court erred in declining to charge the jury on justification and "no duty to retreat," we reverse appellant's convictions for voluntary manslaughter, aggravated assault, and two counts of possession of a firearm in the commission of a crime, and we remand for a new trial on those counts.

The evidence reflects that appellant met the victim in 2003. Their friendship grew into a romantic relationship a few months later, and the victim moved in with appellant. But, according to appellant, their relationship began to falter as the result of the victim's "spells"—episodes where she would "go from just calm and sweet to just uncontrollable" and would become violent. Appellant testified that the victim suffered from bipolar disorder and did not take her medication correctly. Appellant further testified that the victim told him that she had shot and killed her first husband, resulting in her serving eight years in a Florida prison.

The romantic relationship between appellant and the victim ended in May 2004 after the victim had one of her spells and appellant informed her that he "[could not] deal with this" and that she would need to move out of his home. Nevertheless, appellant and the victim remained close friends, with appellant driving the victim to doctor appointments, frequently speaking with her on the phone, and offering her a place to stay temporarily while she dealt with an issue involving her son.

The victim spent July 4, 2004 with appellant and his family. Shortly after midnight, appellant went to his bedroom to lie down. The victim came into the bedroom and asked appellant to drive her to her cousin's house, but appellant refused to do so because of the late hour. A fight ensued. Minutes later, appellant shot the victim in the forehead at an approximate distance of nine inches, killing her instantly. After the shooting, appellant called his mother, who lived across the street. At trial, his mother recounted the call from appellant:

He called me, I don't know what time it was. I had already gone to sleep, and he said, "Mama, call 911; I've shot [the victim]." And I said, "Oh, Lord, no Bobby." I said, "What in the world." He said, "She was trying to kill me." And I said, "Okay, hang up and I'll call."

After calling 911, the mother walked over to appellant's home, where she observed that appellant had some injuries to his left arm and was bleeding. When she got there, appellant was on the phone with a 911 emergency dispatcher waiting for the police to arrive.

Investigators arrived at the home and located the victim in the master bedroom on the floor in the 28-inch space between the wall and a queen-sized waterbed. The victim was found on her knees, with her back toward the wall, and with a "silver dagger-type knife" on the floor behind her right thigh near her right foot. A stereo speaker wire was stretched across her body with the speaker sitting on the floor on her left side.

The firearm that fired the fatal shot—later identified by the state's ballistics expert as a double-action "Harrington & Richardson .410 shotgun" with a sawed-off barrel—was found on the headboard of the bed along with a box of ammunition. Investigators also located the empty sheath for the dagger in the living room on the floor.

Following the investigation, appellant was arrested and charged with felony murder, voluntary manslaughter, aggravated assault, three related counts of possession of a firearm in the commission of a crime, and unlawful possession of a sawed-off shotgun. At the subsequent trial, the state and appellant presented very different versions of what had transpired in the early morning hours of July 5.

The state argued that a fight had occurred between appellant and the victim, which ended when appellant was able to overpower the victim and force her to her knees beside the waterbed. According to the state, appellant then shot the victim at point blank range while she was on her knees, unarmed and helpless. In support of its position, the state relied on appellant's statement to his mother following the incident to establish that appellant had shot the victim.¹ The state also presented evidence that appellant was much larger than the victim in height and weight, that the firearm used to shoot the victim had to be manually cocked prior to discharge, and that the safety on the firearm was functioning properly. And, most critically, the state relied upon the testimony of an expert in blood stain analysis. The expert opined that based on the location and pattern of the blood spatter at the crime scene, the victim's body would have been in the same or nearly identical position at the time of her death as when she was found by investigators—on her knees and unarmed, with the knife on the floor behind her.

In contrast, appellant contended that the firearm he was holding accidentally discharged while he was defending himself from the victim. Appellant testified that after he refused to take the victim to her cousin's house, the victim left his bedroom and he began to drift asleep. He recounted that, as he was falling asleep, he could sense that the victim had come back into his bedroom. He opened his eyes to find the victim leaning over him on the waterbed, with her hands on a loaded firearm that he kept on his headboard. Appellant testified that after a brief struggle, he pulled the firearm away from the victim and placed it back on the headboard. The victim then went over to the bedroom closet, grabbed a rifle that was inside, and attempted to fire it. According to appellant, he snatched the rifle and told the victim to go back into the living room and calm down. The victim initially complied.

Appellant testified that a few seconds later, the victim came running down the hallway toward his bedroom with a dagger-like knife in her hand. Appellant attempted to shut the bedroom door, but the victim forced the door open. Appellant, who contended that his strength, coordination, and balance were hobbled by an old motorcycle wreck, lost his balance and fell back from the door. The victim entered the bedroom and began "slashing crazy with [the] knife" at appellant. According to appellant, the victim then looked toward the firearm that appellant had placed back on the headboard, said "I'll kill you now," and started toward the firearm. Appellant stated that in response, he lunged onto the bed and grabbed the firearm. Appellant described what happened next:

I pulled the gun in, and I looked up, and she was standing there with the knife, you know, and I throwed my left hand up. I was going to grab her arm, but I don't think I ever even got to grab it.... I hit it, and knocked her back. About that same time, me lunging for her arm on that water bed, I just about fell and I had to catch myself.... [T]hat's when she grabbed the gun.... I mean she just snatched hard as she—she's just laying back, just snatched on the gun, and when she snatched, it just snatched me forward too, and the gun went off.

On cross-examination, appellant elaborated that after he lunged onto the bed and grabbed the firearm, he tried to use his left hand to ward off the victim's knife attack, at which point they both lost balance, with the victim falling backward and down into the corner while appellant fell toward the victim. He testified that in that motion, the victim grabbed the barrel of the firearm, pulling the barrel toward herself as he continued to hold onto the firearm, and as "[s]he pulled it, ... that's when it went off." Appellant further testified that although he "had no desire ever to see any harm come to [the victim]," he had been scared for his life when he grabbed the firearm from the headboard, and when the firearm discharged as the victim pulled on the barrel, he was holding the firearm in his right hand with his middle finger "in the trigger hole."

After hearing all the evidence, the jury acquitted appellant of felony murder and the related count of possession of a firearm in the commission of a crime. The jury convicted appellant of the remaining offenses.

1. Appellant contends that the trial court erred in denying his motion for a directed verdict of acquittal. In analyzing this contention, we are mindful that

[t]he standard of review for the denial of a motion for a directed verdict of acquittal is the same as that for reviewing the sufficiency of the evidence to support a conviction. A motion for a directed verdict in a criminal case should only be granted when there is no conflict in the evidence and the evidence demands a verdict of acquittal as a matter of law. Moreover, on appeal the evidence must be viewed in the light most favorable to the verdict, [appellant] no longer enjoys the presumption of innocence, and the appellate court...