Morgan v. State

• Decision Date: 28 May 2002
• Docket Number: No. S02A0739.,S02A0739.
• Citation: 564 S.E.2d 192,275 Ga. 222
• Parties: MORGAN v. The STATE.
• Court: Georgia Supreme Court

564 S.E.2d 192

275 Ga. 222

MORGAN v. The STATE.

No. S02A0739.

Supreme Court of Georgia.

May 28, 2002.

John E. Pirkle, Hinesville, for appellant.

J. Thomas Durden, Jr., Dist. Atty., Lewis M. Groover, Jr., Asst. Dist. Atty., Thurbert E. Baker, Atty. Gen., Adam M. Hames, Asst. Atty. Gen., for appellee. CARLEY, Justice.

A jury found Felix Morgan guilty of the felony murder of Lawrence Hendrix while in the commission of an aggravated assault. The trial court entered judgment of conviction and sentenced him to life imprisonment. A motion for new trial was denied, and he appeals.¹

1. Construed in support of the verdict, the evidence shows that the victim and Morgan were visiting Hannelore Boose on the patio of her home. Ms. Boose was Morgan's girlfriend and the victim's close friend. When the victim questioned Morgan about his physical abuse of Ms. Boose, the two men began to argue. Ms. Boose and the victim went into the house. Morgan followed and fatally shot the victim, who was unarmed and who did not threaten or charge at Morgan. Immediately afterwards, Morgan tried to persuade Ms. Boose to say that his actions were self-defense. When he later called her to ask again and she refused, he threatened her. According to her testimony at trial, the assault on the victim was unprovoked. The evidence was sufficient to authorize a rational trier of fact to find beyond a reasonable doubt that Morgan did not act in self-defense in shooting the victim and that he was guilty of felony murder while in the commission of an aggravated assault. Jackson v. Virginia, 443 U.S. 307, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979); Breland v. State, 269 Ga. 834, 504 S.E.2d 193 (1998).

2. Morgan contends that the trial court erred by denying certain motions in limine and allowing the State to present evidence of his previous altercation with the victim and of his prior fighting with and shooting at Ms. Boose. According to Morgan, the only purpose of such evidence was to prove that, because of his bad character, he was more likely to have committed the crime. However, the prior difficulties with the victim were clearly admissible to show Morgan's motive, intent, and bent of mind. Givens v. State, 273 Ga. 818, 823(4), 546 S.E.2d 509 (2001). Morgan's physical abuse of Ms. Boose was relevant to the motive for the murder, because the evidence showed that the victim talked to Morgan about the mistreatment on prior occasions, and it was also the subject of their argument just prior to the shooting. Cummings v. State, 273 Ga. 547, 548(2), 544 S.E.2d 429 (2001). See also Vaughns v. State, 274 Ga. 13, 14(2), 549 S.E.2d 86 (2001); Givens v. State, supra at 821(2), 546 S.E.2d 509.

3. Morgan complains that the trial court allowed the State to explore the subject of his parole status. On direct examination, however, he brought up that subject. Although Morgan did not thereby place his character in issue, he did raise "an issue which may be fully explored by the State on cross-examination. [Cit.]" Jones v. State, 257 Ga. 753, 759(1)(b), 363 S.E.2d 529 (1988). The prosecutor here could have, but did not, question Morgan about the conviction for which he was on parole. Jones v. State, supra at 760(2), fn. 10, 363 S.E.2d 529. Instead, the prosecutor merely confirmed that Morgan was on parole at the time of the crime and inquired whether he violated the conditions of his parole when he obtained the weapon which he used to shoot the victim. See Dowdy v. State, 209 Ga.App. 95, 96(2), 432 S.E.2d 827 (1993) (parole documents admitted). "Since ... the appellant ... introduced the topic on direct examination, he cannot now complain that the prosecutor followed up on cross-examination. [Cit.]" Willis v. State, 214 Ga.App. 659, 661(3), 448 S.E.2d 755 (1994).

4. Morgan enumerates as error the admission of his custodial statement. Prior to making the statement, he signed a waiver of rights form, but informed the officer that he did not want to talk. When the officer prepared to leave, Morgan said that he would talk if there was no tape recorder or notetaking. The officer then sat down and, without any questioning, listened to Morgan's version of the events. Contrary to the argument on appeal, neither the transcript of the Jackson Denno hearing nor the record shows that Morgan ever invoked his right to counsel. "Thus, we are not guided by Edwards [v. Arizona, 451 U.S. 477, 101 S.Ct. 1880, 68 L.Ed.2d 378 (1981)], but by Michigan v. Mosley, 423 U.S. 96, 96 S.Ct. 321, 46 L.Ed.2d 313 (1975). [Cit.]" Fields v. State, 266 Ga. 241, 242(1), 466 S.E.2d 202 (1996). Mosley permits further dialogue with a suspect after his invocation of the right to remain silent, so long as certain requirements are met, even if the police reinitiate the interrogation. Bright v. State, 251 Ga. 440, 445-446(2), 306 S.E.2d 293 (1983). In this case, Morgan himself initiated his statement, after previously expressing a different desire, thereby "clearly evincing his intent not to remain silent. [Cit.]" Larry v. State, 266 Ga. 284, 286(2)(a), 466 S.E.2d 850 (1996). Morgan did not equivocate in his decision merely by specifying the absence of any immediate recording method as a condition. See Larry v. State, supra. Moreover, there was never an attempt to wear down his resistance and make him change his mind. Screws v. State, 245 Ga.App. 664, 666(2), 538 S.E.2d 547 (2000). Accordingly, we find that the trial court did not err in admitting Morgan's custodial statement into evidence. 5. After being transported to the hospital, the victim told a police officer that Morgan "just shot me" and "we weren't fighting." The officer who took the statement testified that the victim was in great pain from the gunshot wound to his abdomen and asked the officer "if he was going to die." The officer told him "no, that the doctor was working on him now." Morgan contends that this testimony shows that the victim was not conscious of imminent death and, thus, that the trial court erroneously admitted the victim's statement as a dying declaration.

One of the requirements for a statement to be admissible as a dying declaration is that the deceased must have been "conscious of his condition...." OCGA § 24-3-6. "[I]t need only appear to the court from the circumstances of the case that there was a probability that the deceased was conscious of his condition at the time he made the statement...." Walton v. State, 79 Ga. 446, 450(2), 5 S.E. 203 (1888). The testimony introduced as dying declarations need not "contain any statement by the deceased to the effect that he was conscious of impending death at the time the declarations were made, since this may be inferred from the nature of the wounds and other circumstances. [Cits.]" Morakes v. State, 201 Ga. 425, 436(5), 40 S.E.2d 120 (1946). See also Norris v. State, 258 Ga. 889, 890(2), 376 S.E.2d 653 (1989), overruled on other grounds, Johnson v. State, 272 Ga. 254, 526 S.E.2d 549 (2000). In this case, the fact that the victim asked whether he was going to die, his knowledge of the serious gunshot wound, the occurrence of his death within a matter of hours, and his great pain established a prima facie case that he realized that death was impending and, therefore, the ultimate determination was for the jury. See Morakes v. State, supra. The officer's reassurance of the victim did not preclude admission of the dying declaration. Morakes v. State, supra at 436, 437(5), 40 S.E.2d 120. "To discount the statement as a dying declaration, the record must indicate that a negative response to the question `Am I going to die?' relieved the declarant's fears and belief of [his] imminent death. [Cit.]" Charles v. State, 955 S.W.2d 400, 404 (Tex.App.1997). The transcript does not show that the officer's response to the victim relieved his fears. Therefore, the trial court did not err in admitting the victim's statement as a dying declaration.

Moreover, even if a decedent's statement is not admissible as a dying declaration, it may be admitted under the res gestae exception to the hearsay rule. Andrews v. State, 249 Ga. 223, 290 S.E.2d 71 (1982). The trial court here correctly also relied on that exception, because the victim made his statement while receiving emergency treatment just 25 to 30 minutes after the shooting. See Jay v. State, 232 Ga.App. 661, 663(3), 503 S.E.2d 563 (1998); Brinson v. State, 208 Ga.App. 556(1), 430 S.E.2d 875 (1993); Salleywhite v. State, 133 Ga.App. 170(1), 210 S.E.2d 334 (1974).

6. Morgan urges that the trial court erred in failing to give his request to charge on involuntary manslaughter in the course of a lawful act. It is well settled, however, that such a charge is not required where, as here, the defendant asserts self-defense. Willis v. State, 258 Ga. 477(1), 371 S.E.2d 376 (1988). See also Paul v. State, 274 Ga. 601, 604(3)(a), 555 S.E.2d 716 (2001).

7. Relying on Harris v. State, 273 Ga. 608, 609(2), 543 S.E.2d 716 (2001), Morgan complains that the trial court erred in instructing the jury that intent "may be inferred from the proven circumstances or by acts and conduct, or it may be, in your discretion, inferred when it is the natural and necessary consequence of the act." The trial court immediately added that "[w]hether or not you draw such an inference is a matter solely within your discretion."

Harris, supra at 610(2), 543 S.E.2d 716, prohibited only "the giving of a `use of a deadly weapon' charge," but allowed general instructions on intent and permissive inferences. The charge of which Morgan complains is in the exact language of the pattern jury instruction on intent and, unlike the "deadly weapon" charge, has never been criticized by this Court. Hodges v. State, 249 Ga.App. 268, 272(6), 547 S.E.2d 386 (2001). Indeed, we approved similar instructions regarding permissive inferences at the approximate time that Harris was decided. Alexis v. State, 273 Ga. 423, 427(5), 541 S.E.2d 636 (2001). Because a ...