Manzano v. State

• Decision Date: 29 October 2007
• Docket Number: No. S07A0765.,S07A0765.
• Citation: 651 S.E.2d 661,282 Ga. 557
• Parties: MANZANO v. The STATE.
• Court: Georgia Supreme Court

282 Ga. 557

651 S.E.2d 661

MANZANO v. The STATE.

No. S07A0765.

Supreme Court of Georgia.

September 24, 2007.

Reconsideration Denied October 29, 2007.

Mitchell D. Durham, Marietta, for Appellant.

Patrick H. Head, Dist. Atty., Dana J. Norman, Jesse David Evans, Asst. Dist. Attys., Marietta; Thurbert E. Baker, Atty. Gen., Jason Charles Fisher, Asst. Atty. Gen., Department of Law, Atlanta, for Appellee.

BENHAM, Justice.

Jesus Manzano appeals from his conviction for the murder of his wife, Claudia Rodriguez.¹ Rodriguez was found dead on the couch in their home with a single gunshot wound to her head. The evidence at trial established the shot was fired by Manzano as Rodriguez lay on the couch. The State's theory was that Manzano shot her as she lay sleeping because he believed she was involved with another man. Witnesses testified to Manzano's jealousy, threats, and violence, and to his own infidelity. Manzano testified that while he was cleaning the gun, Rodriguez, who knew the pistol's magazine had been removed, jokingly suggested he prove he was a big man by shooting her. In response, he testified, he pressed the gun to her head and pulled the trigger, believing as Rodriguez did that the gun was not loaded. However, a round remained in the pistol's chamber and Rodriguez was shot in the head. After firing the fatal shot, Manzano called his brother Tomas, then washed and changed clothes and left the home. Tomas and his wife arrived, found Rodriguez dead, and called 911. Another of Manzano's brothers took him to the home of friends, one of whom accompanied Manzano to the Cobb County Detention Center where he turned himself in.

1. The evidence adduced at trial and summarized above was sufficient to authorize a rational trier of fact to find Manzano guilty beyond a reasonable doubt of felony murder with aggravated assault as the underlying felony. Jackson v. Virginia, 443 U.S. 307, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979).

2. Based on his testimony that the shooting occurred inadvertently when, in the course of horseplay with the pistol, he pulled the trigger while pointing the pistol at Rodriguez's head, not knowing there was a round in the chamber, Manzano requested jury charges on involuntary manslaughter with reckless conduct and pointing a pistol at another as predicate misdemeanors.

With regard to involuntary manslaughter based on the misdemeanor of pointing a pistol at another, Manzano relies on the long-standing rule stated in Irvin v. State, 9 Ga.App. 865(1), 72 S.E. 440 (1911), that where one who believes a pistol is unloaded intentionally points and aims the pistol at another and pulls the trigger, and the pistol unexpectedly fires, causing the death of the person at whom it was pointed, a verdict of involuntary manslaughter in the commission of an unlawful act is authorized. The State responds that the rule in Irvin was abrogated by the subsequent enactment of the present aggravated assault statute, OCGA §§ 16-5-20(a)(2) and 16-5-21(a)(2), and argues that if the victim is aware of the pointing of the pistol, the offense is the felony of aggravated assault, not the misdemeanor of pointing a pistol at another. The State's argument is correct to the extent it asserts that the evidence need not show the victim experienced fear of receiving an injury, but need only perceive that such a danger exists. Lemming v. State, 272 Ga.App. 122(1), 612 S.E.2d 495 (2005). However, the State's argument falters when it asserts that a victim's perception that a pistol is pointed at her always makes the offense aggravated assault rather than pointing a pistol. What the assault statutes require in addition to an awareness by the victim that a pistol is pointed at her is a reasonable perception on her part of the danger of immediately receiving a violent injury. See Stobbart v. State, 272 Ga. 608(3), 533 S.E.2d 379 (2000); Lemming v. State, supra. While Manzano's testimony unquestionably shows that Rodriguez perceived that a pistol was pointed at her, there is no evidence she perceived a danger of immediately receiving a violent injury because, according to Manzano's testimony, she believed, as he did, that the pistol was unloaded and was thus incapable of causing such an injury. "If the victim is not placed in reasonable apprehension of immediate violent injury by the pointing of the firearm, only the misdemeanor of pointing a firearm (and not the felony of aggravated assault) has been committed." Rhodes v. State, 257 Ga. 368(5), 359 S.E.2d 670 (1987). Therefore, contrary to the trial court's conclusion and the State's argument on appeal, the evidence that Manzano and Rodriquez were engaged in horseplay with what they both perceived to be an unloaded pistol would have supported a conviction for involuntary manslaughter with the offense of pointing a pistol as the predicate misdemeanor. That being so, the trial court's refusal to give the charge constituted error. State v. Alvarado, 260 Ga. 563, 564, 397 S.E.2d 550 (1990) (written request to charge included offense must always be given if there is any evidence that the defendant is guilty of the lesser included offense; failure to so charge, if evidence warrants requested charge, shall be error). Under the circumstances of this case, we cannot conclude the trial court's error in refusing the requested charge on involuntary manslaughter with pointing a pistol at another as the predicate misdemeanor was harmless. Accordingly, Manzano is entitled to a new trial.

3. Although Manzano's conviction is reversed for the reason stated above, two issues remain concerning matters which could recur at his retrial and will, therefore, be addressed.

A. Manzano enumerates as error the trial court's refusal to give a requested instruction on involuntary manslaughter with reckless conduct as the predicate misdemeanor.² "A defendant who handles a gun in such a way as to accidentally cause the death of another human being, albeit without any intention to do so, has necessarily committed the misdemeanor of reckless conduct. . . . Cit." Cook v. State, 249 Ga. 709(4), 292 S.E.2d 844 (1982). See also Reed v. State, 279 Ga. 81(7), 610 S.E.2d 35 (2005). Manzano testified he had no intention of shooting...