Price v. State

• Decision Date: 17 January 2006
• Docket Number: No. S05A2039.,S05A2039.
• Citation: 280 Ga. 193,625 S.E.2d 397
• Parties: PRICE v. The STATE.
• Court: Georgia Supreme Court

280 Ga. 193

625 S.E.2d 397

PRICE v. The STATE.

No. S05A2039.

Supreme Court of Georgia.

January 17, 2006.

Reconsideration Denied February 13, 2006.

COPYRIGHT MATERIAL OMITTED

Charles H. Frier, Atlanta, for Appellant.

Paul L. Howard, Jr., Dist. Atty., Bettieanne C. Hart, Deputy Dist. Atty., Christopher Michael Quinn, Asst. Dist. Atty.; Thurbert E. Baker, Atty. Gen., Laurie M. Hughes, Asst. Atty. Gen., Department of Law, Atlanta, for Appellee.

HINES, Justice.

Willie Lee Price appeals his conviction for felony murder while in the commission of aggravated assault and the denial of his motion for new trial in connection with the fatal stabbing of Antonio Rush. He challenges the authority of the trial judge to preside over his trial; the sufficiency of the evidence of his guilt; the validity of his decision not to testify; certain charges to the jury; and the effectiveness of his trial counsel. Finding such challenges to be without merit, we affirm.¹

Around 11:30 p.m. on January 12, 2003, Officer Demeester of the Atlanta Police Department saw Antonio Rush walking down the street near the intersection of Bankhead Highway and Bolton Road, and nothing appeared to be wrong. Approximately five minutes later, Demeester found Rush lying face down and motionless in front of the boarding house where Willie Lee Price ("Price") lived. Rush had been stabbed to death. There was not much blood on the ground, and there was no blood trail.

Between 11:00 and 11:45 p.m. that night, Price showed up at the apartment of his friends, Regina Walker and Donald Price. Price related that he "had got into it" with Rush, and that he "was just tired of people messing with him," and "taking from him." Price indicated that he was upset because Rush had tried to take a beer from him. Price did not say that he was trying to defend himself or that Rush had attacked him.

Following his arrest, Price gave a videotaped statement in which he admitted that he stabbed Rush with a knife; however, he claimed that he did so after Rush attacked him with a weapon. Price claimed that Rush became aggressive after Price refused to give Rush his beer. Price said that Rush lunged at him with something in his hand, but he could not identify what it was because it was dark outside. Price said he attempted to defend himself by swinging his knife in a slashing motion.

The cause of Rush's death was a stab wound to the torso that penetrated Rush's aorta. The knife cut through three layers of clothing and went three-to-six inches into Rush's body. The stabbing caused extensive internal bleeding, but little external bleeding. The stab wound was consistent with a blade being thrust directly into Rush's abdomen, and not with the blade being used in a slashing motion. No knives or other weapons were found on Rush's body or at the scene of the crime.

1. Price contends that the senior judge who presided over his trial was without authority or jurisdiction to do so inasmuch as the senior judge's continuous reappointment for two-month terms was a de facto permanent appointment, thereby violating the provision in the State Constitution that all superior court judges are to be elected. See 1983 Ga. Const., Art. VI, Sec. VII, Par. I. However, Price's claim regarding the alleged infirmity of the trial judge's appointment was not asserted until Price's amended motion for new trial, and therefore, it is untimely and fails to present an issue for review in this appeal. Strozier v. State, 277 Ga. 78, 79(1), 586 S.E.2d 309 (2003). Moreover, the senior judge's appointments by separate orders to preside over matters in the superior court for specified periods of time does not render him a de facto superior court judge in violation of the constitutional requirement that all superior court judges be elected. Moreland v. State, 279 Ga. 641(2), 619 S.E.2d 626 (2005).

2. Price contends that he was entitled to directed verdicts of acquittal on the murder counts because the evidence was insufficient to prove murder. He argues that the evidence showed that when Rush approached him with an object in his hand, he swung his knife in an arcing motion to keep Rush away, and because Rush's mortal wound was caused by a thrusting motion, he could not have caused Rush's death; there was no blood on Price's clothes when they arrested him just a few hours after the incident; and although he may have committed aggravated assault when he swung at Rush, the State failed to prove that he caused Rush's death. But the argument is unavailing.

First, the forensic evidence belies Price's claim of how he wielded the knife in regard to the victim. Second, a lack of the victim's blood on Price's person or at the crime scene was easily explained by the fact that the stabbing caused extensive internal bleeding and little external bleeding. Third, the evidence was that the stabbing led to the victim's death.

In sum, Price's argument merely highlights his version of events and reasserts his claim of self-defense. Witness credibility is a matter for the jury, as is the question of justification; therefore, the jury was free to reject the claim that Price stabbed Rush in self-defense. Harris v. State, 279 Ga. 304, 306(2), 612 S.E.2d 789 (2005). The evidence was sufficient to enable a rational trier of fact to find Price guilty beyond a reasonable doubt of the felony murder of Rush. Jackson v. Virginia, 443 U.S. 307, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979).

3. Price next contends that the trial court erred by failing on the record to ascertain whether he made a knowing, intelligent, and voluntary decision not to testify. He argues that the trial court should have conducted an inquiry on the record outside the presence of the jury regarding his waiver of the right to testify, and that there should be a new rule of procedure requiring an on-the-record colloquy. But Price failed to make such an objection at trial, nor did he raise the issue in his original or amended motions for new trial. In general, a defendant must object to the alleged impropriety at the time it occurs in order to afford the trial court the opportunity to take remedial action; otherwise, there is a waiver of the defendant's right to urge the alleged impropriety as error on appeal. Bailey v. State, 273 Ga. 303, 306(3), 540 S.E.2d 202 (2001).

Even assuming the issue is properly before this Court, whether to testify in one's own defense is a tactical decision to be made by the defendant himself after consultation with his trial counsel, and generally, there is no requirement that a trial court interject itself into that decision-making process. Burton v. State, 263 Ga. 725, 728(6), 438 S.E.2d 83 (1994). Moreover, the record shows that independently of defense counsel's announcement that the defense would rest following presentation of the State's case, Price told the trial court that he would not be presenting any evidence. Thus, the trial court established for itself that Price had elected not to testify in his own defense. Id.

4. Price further asserts that the trial court erred in two respects in its charge to the jury.

a.) In instructing the jury on the meaning of "forcible felony" for the purpose of a justification defense, the trial court stated,

A forcible felony means any felony which involves the use of or threats of physical violence or physical force or violence against any person. [A]nd you know in this case the State contends that the defendant in this case was committing an aggravated assault while he intentionally made an effort to kill the defendant — the deceased. (Emphasis supplied).

Price argues that the italicized language was unbalanced and prejudicial to him because it improperly focused on his intent and acts, and that it constituted plain error because it amounted to the trial court's expression of opinion regarding his guilt. See OCGA § 17-8-57.

First, it should be noted that the defendant's intent and actions are certainly not irrelevant to the defense of self-defense inasmuch as its focus is the defendant's reasonable belief of the force necessary to defend himself. See OCGA § 16-3-21(a). As to the assertion that the language at issue constituted an improper expression of opinion by the trial court, Price did not object or move for a mistrial on such basis; therefore, the claimed violation of OCGA § 17-8-57 is waived. Paul v. State, 272 Ga. 845, 848(2), 537 S.E.2d 58 (2000). Even assuming review is not waived, Price does not prevail. OCGA § 17-8-57 is violated only "when the court's charge assumes certain things as facts and intimates to the jury what the judge believes the evidence to be. [Cit.]" Sedlak v. State, 275 Ga. 746, 748(2)(d), 571 S.E.2d 721 (2002), quoting Jones v. State, 268 Ga. 12, 15(5), 483 S.E.2d 871 (1997). Here, the trial court was not giving its opinion about the evidence, but was merely reciting what the State was contending. Moreover, jury instructions must be viewed as a whole to determine whether a charge contains error. Whitaker v. State, 275 Ga. 521, 524(6), 570 S.E.2d 317 (2002); Wilson v. State, 275 Ga. 53, 59-60(4), 562 S.E.2d 164 (2002). In this case, the trial court told the jury that anything that it said or did during the trial was not intended to and did not intimate, hint, or suggest, what the outcome should be, and that the verdict was entirely for the jury to determine. Sedlak v. State, supra at 749(2)(d), 571 S.E.2d 721.

b.) Citing Russell v. State, 265 Ga. 203, 455 S.E.2d 34 (1995), and Edge v. State, 261 Ga. 865, 414 S.E.2d 463 (1992), Price maintains that the trial court erred in its instruction on voluntary manslaughter because it did not advise the jury that it must reject voluntary manslaughter before finding felony murder based on aggravated assault. He further argues that the court did not clearly charge the jury that it could not find felony murder if it found the existence of provocation and passion.

Initially, the trial court instructed the jury that voluntary...