Mercer v. State

• Decision Date: 12 January 1998
• Docket Number: S97A1727,Nos. S97A1647,s. S97A1647
• Citation: Mercer v. State, 268 Ga. 856, 493 S.E.2d 921 (Ga. 1998)
• Parties: , 98 FCDR 243 MERCER v. The STATE. LEE v. The STATE.
• Court: Georgia Supreme Court

Page 921

493 S.E.2d 921

268 Ga. 856, 98 FCDR 243

MERCER v.The STATE.

LEE v.The STATE.

Nos. S97A1647, S97A1727.

Supreme Court of Georgia.

Jan. 12, 1998.

M. Ross Becton Jr., Kevin A. Hunter, Savannah, for Henry Mercer.

Christine Sieger Barker, Asst. Dist. Atty., Eastern Judicial Circuit, Savannah, Patricia Beth Attaway, Asst. Atty. Gen., Paula K. Smith, Senior Asst. Atty. Gen., Department of Law, Atlanta, for the State.

THOMPSON, Justice.

Henry Mercer and Darcel Lee were indicted and charged with malice murder and felony murder, with the underlying felony of aggravated assault, in the death of Leroy Lewis.¹With regard to the underlying felony of aggravated assault, the indictment charged that defendants used their fists, feet, and a bed frame, objects which, when used offensively, are likely to cause serious bodily injury.The jury found defendants not guilty of malice murder, but guilty of felony murder, and they were sentenced to life in prison.Their separate appeals have been consolidated.

Viewing the evidence in a light to uphold the verdict, we find the following: On January 4, 1996, at approximately 10:30 p.m., Regina Watts went to a laundromat in Savannah, Georgia.Watts put her laundry in a washing machine and went back out to her car which was parked directly in front of the laundromat.As she waited in the car, Watts saw Lee and Mercer inside the laundromat, taking turns kicking the elderly victim.While one kicked him, the other waited outside.When Watts went inside the laundromat to put her clothes in the dryer, she saw Lewis on the floor, unconscious, with one foot in a dryer.

Watts returned to her car and continued her vigil.Soon, Lee and Mercer dragged Lewis out of the laundromat and into a nearby alcove, where they continued to beat him, and threw a garbage can and bed frame at him.

Watts went home, called 911, and informed the police as to what she had seen.The police and paramedics arrived at the scene and found Lewis severely beaten, battered and bruised.They rushed him to a hospital where he died at approximately 3:00 a.m.

At trial, Mercer testified that Lee beat Lewis with his hands, and Lee testified that Mercer beat him.Moreover, Lee admitted that he dragged Lewis into the alcove and slapped him in the face.

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

2.The trial court charged the jury that fists, "shoe-wearing feet" and bed frames are not deadly weapons per se, but may be deadly weapons depending on the manner in which they are used and the nature of the injuries inflicted upon the victim.The charge was a correct statement of the law.Boling v. State, 244 Ga. 825, 826(1), 262 S.E.2d 123(1979).It was not erroneous simply because the trial court used the words "shoe-wearing feet" and the indictment only used the word "feet."After all, it cannot be said that there is a reasonable possibility that defendants were convicted of a crime in a manner not charged in the indictment.See generallyDukes v. State, 265 Ga. 422, 423, 457 S.E.2d 556(1995).

Nor can it be said that the charge directed the jury to find that defendants used their hands, feet, and a bed frame, in their attack on Lewis.The trial court made it clear that whether any of these instrumentalities were used, and whether they were deadly weapons, were matters for the jury to determine.

3.On the morning following the assault on Lewis, Watts saw Lee in her neighborhood.She called the police and described what Lee was wearing.The police picked up Lee and brought him to Watts who identified him as one of Lewis' assailants.

Lee...