Martin v. State

• Decision Date: 03 November 1997
• Docket Number: No. S97A1052,S97A1052
• Citation: Martin v. State, 268 Ga. 682, 492 S.E.2d 225 (Ga. 1997)
• Parties: , 97 FCDR 4019 MARTIN v. The STATE.
• Court: Georgia Supreme Court

Page 225

492 S.E.2d 225

268 Ga. 682, 97 FCDR 4019

MARTIN v. The STATE.

No. S97A1052.

Supreme Court of Georgia.

Nov. 3, 1997.

Reconsideration Denied Nov. 21, 1997.

Monique Deborah Moyse, Atlanta, for John T. Martin, Jr.

Paul L. Howard, Jr., Dist. Atty., Christopher S. Brasher, Asst. Atty. Gen., Paula K. Smith, Senior Asst. Atty. Gen., Department of Law, Juliette Bettieanne C. Hart, Asst. Dist. Atty., Atlanta, for the State.

HINES, Justice.

John T. Martin, Jr. appeals his convictions for felony murder, aggravated assault, and possession of a firearm by a convicted felon in connection with the fatal shooting of Willie Mae Brown. ¹ For the reasons which follow, we affirm the convictions.

The evidence viewed in favor of the verdicts showed that in the early morning hours of October 6, 1993, Willie Mae Brown and her neighbor and friend, Donetta Shorty, were sitting and drinking on the porch of Brown's mother's residence. Martin approached the women and indicated that he wanted to enter the residence to visit Joe Whitehead, who was staying there. Brown told Martin that it was too late to go upstairs, but Martin disregarded this and walked up the stairs to enter the home. Brown followed, Martin hit her in the mouth, and the two began to "tussle." The fighting ceased and Martin descended the stairs with Whitehead while Brown stood on the balcony overlooking the two men. Brown and Martin exchanged words. Martin pulled a gun from his pants, pointed it at Brown, and shot her. Martin and Whitehead left the scene, and Martin remarked to Whitehead, "I shot that bitch." Brown bled to death as the result of a single .38 caliber bullet through the chest.

When Martin was arrested a few hours after the shooting, the police found a .38 caliber revolver tucked inside the waistband of his pants. The fatal bullet was positively identified as having been fired from the recovered revolver.

At trial, Martin related a version of events much different from that told by the eyewitnesses. Martin claimed that the revolver had been pawned to him by Whitehead and Shorty, that he and Brown got into an argument about the gun, which Brown claimed as her own, and that he refused to return the gun until he got back the money he had loaned for it. He went downstairs and pulled out the weapon after Whitehead asked him for it. Brown stood on the balcony and cursed at Martin and Martin saw a "flash" in Brown's hand, which he believed to be a gun. As Martin started to turn away, Shorty grabbed Martin's hand in an attempt to get the revolver, and Martin "brought [Shorty] around" and raised his hand in the air to thwart Shorty. Martin testified, "I throwed my hand up, the gun went off."

When asked how Brown's alleged conduct made him feel, Martin stated that he didn't "pay [Brown] too much attention." Martin further explained that he had thrown his hand up to wrest the gun from Shorty because he "wasn't going to let her get that gun." Martin unequivocally denied ever pointing the revolver at Brown, that he intended to shoot or harm her, or that he knew she had been shot. He told the jury, "I had no reason to shoot Willie Mae."

1. The evidence was sufficient for a rational trier of fact to find Martin guilty beyond a reasonable doubt of the crimes for which he was convicted. Jackson v. Virginia, 443 U.S. 307, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979).

2. Martin fails in his contention that the trial court abused its discretion by denying him a continuance which he sought in order to obtain certified copies of a prosecution witness' convictions in an attempt to impeach the witness. The granting or denial of a continuance is a matter for the sound discretion of the trial court. OCGA § 17-8-22; Harrison v. State, 251 Ga. 837, 838(1), 310 S.E.2d 506 (1984). Here, the record reflects that defense counsel was aware of the witness' location at least four days prior to the beginning of trial, but that counsel did not speak with the witness until the eve of trial. What is more, Martin has failed to demonstrate how he was harmed by the denial of his motion for continuance. See Roland v. State, 266 Ga. 545, 547(3), 468 S.E.2d 378 (1996). The witness admitted during both direct and cross-examination that he had served time for armed robbery in another state, and Martin has neither alleged nor shown that the witness had other convictions which could have been used for impeachment purposes. Because there is no indication that the continuance would have benefitted Martin, it cannot be said to be necessary, nor a breach of the trial court's discretion to deny it. Johnson v. State, 255 Ga. 703, 704(2), 342 S.E.2d 312 (1986).

3. Martin asserts that the trial court committed reversible error by allowing into evidence a certified copy of his prior felony conviction even though he expressed his willingness to concede his status as a convicted felon. He argues that his case is distinguishable from Robinson v. State, 263 Ga. 424, 435 S.E.2d 207 (1993), because there is not overwhelming evidence of his guilt of the charge of possession of a firearm by a convicted felon. On the contrary, Martin's own testimony provides overwhelming evidence of his guilt of the offense, and the admission of the prior conviction provides no basis for reversal. Id. at 425(2)(b), 435 S.E.2d 207.

4. Martin is unsuccessful in his claims that he was improperly convicted of felony murder because the status offense of possession of a firearm by a convicted felon is not sufficient to support such a conviction, and that he was denied a fair trial when the trial court refused to bifurcate the trial of the firearm possession charge.

The State's evidence was that convicted felon Martin possessed a firearm and then used it to commit an aggravated assault against the victim which resulted in her death. Under such circumstances, the status offense was dangerous, life threatening, and sufficiently connected to the homicide to serve as the underlying felony for the felony murder conviction. Weems v. State, 267 Ga. 182, 183(2), 476 S.E.2d 585 (1996); Roller v. State, 265 Ga. 213, 214(2), 453 S.E.2d 740 (1995). Compare Ford v. State, 262 Ga. 602, 423 S.E.2d 255 (1992). Accordingly, the possession charge was material to the felony murder, and it was not an abuse of discretion for the trial court to refuse to separately try the offense. Weems, supra at 184(2), 476 S.E.2d 585; Robinson, supra at 425(2), 435 S.E.2d 207; Williams v. State, 263 Ga. 135, 136(1), 429 S.E.2d 512 (1993); Head v. State, 253 Ga. 429, 431(3), 322 S.E.2d 228 (1984).

5. There is no merit to Martin's blanket assertion that the trial court violated his right to a fair trial by refusing to instruct the jury on "reasonable doubt, intent, presumptions, and burden shifting." The record discloses that the trial court instructed the jury about the defendant's presumption of innocence, that the defendant would not be presumed to have acted with criminal intent, that the State had the burden to prove guilt beyond a reasonable doubt, and that the burden of proof never shifted to the defendant to prove his innocence.

6. Martin further contends that he was denied a fair proceeding because the trial court refused to instruct the jury on justification which he claims was his sole defense to the charges of felony murder and firearm possession and his alternative defense to aggravated assault. However, the trial court did not err in refusing to give a charge on justification as it was neither Martin's sole defense nor reasonably raised by the evidence at trial. See Conner v. State, 251 Ga. 113, 115(2)(a), 303 S.E.2d 266 (1983). Compare Tarvestad v. State, 261 Ga. 605, 606, 409 S.E.2d 513 (1991). Rather the only defense presented by the evidence came from Martin's own statements at trial, which portrayed the shooting of the victim as purely an accident, and accordingly, the court instructed the jury on misfortune or accident. See OCGA § 16-2-2.

Generally, the defenses of accident and self-defense are not both involved in a case. Berry v. State, 267 Ga. 476, 478(3), 480 S.E.2d 32 (1997); Turner v. State, 262 Ga. 359, 360(2)(b), 418 S.E.2d 52 (1992). Martin urges that his case is an exception as in Turner, warranting that the jury be given the options of both accident and self-defense. This is based on the argument that Martin's testimony showed that he used Shorty as a shield and that the gun accidentally discharged as the result of his attempt to defend himself. But, Turner is inapplicable here. See Head v. State, 262 Ga. 795, 799(6), 426 S.E.2d 547 (1993). Martin's testimony was plain that he had no reason or intent to shoot Brown, and that he threw his hand up in the air not to defend himself from Brown, whom he did not fear, but in order to retain control of the handgun, which was his collateral for the money he had loaned.

7. Under the circumstances of this case, it was not error for the trial court to refuse to instruct the jury on unlawful act involuntary manslaughter and reckless conduct. See OCGA §§ 16-5-3(a); 16-5-60(b). The evidence established that Martin either intentionally shot and killed Brown, committing aggravated assault and murder, or that his actions were not deliberate and the revolver accidentally discharged resulting in no criminal culpability for Brown's death. "Where ... the evidence shows either the commission of the completed offense as charged, or the commission of no offense, the trial court is not required to charge the jury on a lesser included offense." Mason v. State, 267 Ga. 314, 315(3), 477 S.E.2d 568 (1996), quoting Rowe v. State, 266 Ga. 136, 139(3), 464 S.E.2d 811 (1996).

8. The trial court did not violate Martin's due process rights because in its recharge on aggravated assault it instructed the jury on subsection (a)(1) as well as (a)(2) of OCGA § 16-5-21. ² In its initial charge to the jury, the court instructed on the subsections and then limited the jury's consideration to the specific method of...