Ranger v. State
| Citation | 249 Ga. 315,290 S.E.2d 63 |
| Decision Date | 06 April 1982 |
| Docket Number | No. 38165,38165 |
| Parties | Victor RANGER v. The STATE. |
| Court | Supreme Court of Georgia |
Tommy Chason, Louise T. Hornsby, Atlanta, for Victor Ranger.
Lewis R. Slaton, Dist. Atty., Atlanta, Michael J. Bowers, Atty. Gen., for the State.
Victor Ranger was indicted for the malice murder of his pregnant girlfriend, Helena Carter, and the felony murder of her child who was prematurely born after she was shot. He appeals from his convictions and sentences to life in prison imposed on September 2, 1981, following a jury trial.
The defendant's father testified that when he arrived home on December 8, 1980, at approximately 6 p. m., the defendant and Helena Carter were talking in the living room of the Ranger home. Helena Carter was 15 years old and six to seven months pregnant. Although she had previously lived with the Rangers, she was not living there at this time. Prior to this day, the defendant apparently believed the child to be his.
About an hour after he arrived home, while watching television in the bedroom with his daughter Elaine, the defendant's father heard a shot. Upon running into the living room and seeing that Helena Carter had been shot in the head, Elaine asked the defendant if he shot her. He said no. The defendant, who was holding a gun, became hysterical and his father dragged him away and made him put the gun down. His father testified that when he entered the living room, his son said that he didn't know she was shot and that he "done messed up now." He also testified that his son had said that he "didn't mean to do it."
The defendant's sister Elaine testified that the victim and the defendant had been talking in the living room some 2-3 hours before the shooting and that the defendant had gotten the gun earlier in the afternoon. She also testified that she had spoken to her brother on the phone earlier that day and he had found some letters connecting the victim with someone called Mitchell. She was emphatic in her testimony that her brother had not said anything about hurting Helena, but in her statement given to the police on the evening of the shooting she quoted her brother as having said that he didn't want to hurt Helena but if she lied to him he was going to hurt her.
Several people arrived at the house immediately after the shooting. Someone called the police, and the first officer arrived about 7:20 p. m. He called homicide and called for an ambulance. When it arrived, Helena Carter was taken to Grady Hospital. A homicide detective found one spent shell and five live shells in the gun.
When Helena Carter arrived at Grady she was treated by a neurosurgeon who testified that she was in a Grade 5 (terminal) coma. The neurosurgeon determined that Helena Carter was not likely to live more than a few hours. The cause of her subsequent death was a bullet through her brain, fired from a distance of 2 or 3 inches. Because an obstetrician detected a fetal heart beat, the baby was delivered by Caeserean section at about 8:30 p. m. Helena Carter died at 9 or 9:10 p. m. When the baby was born, he had spontaneous respiration, a heart rate, and was moving his extremities. However he was in respiratory distress (breathing with great difficulty), had poor color and tone and abnormal reflex irritability. The baby responded well when given oxygen, but the doctors soon determined that he suffered from hyaline membrane disease (immature lung development). The baby's respiratory distress increased overnight and he died after 8 a. m. the next morning. In the doctor's opinion, the baby was in his 25th to 27th week of gestation.
Firearms expert Kelly Fite testified that he examined the revolver which fired the fatal bullet and that it had to be cocked before the trigger, which required 3 1/2 pounds of force, would fire the weapon. On cross examination he testified that if the revolver did not have an empty chamber under the hammer and if it was dropped and fell on the hammer, it could discharge accidentally. The defense did not call any witnesses.
1. Code Ann. § 26-1101(b) provides that "A person also commits the crime of murder when in the commission of a felony he causes the death of another human being, irrespective of malice." The defendant points out that Georgia does not have a feticide statute and he contends that his conviction for the felony murder of the infant cannot stand because at the time of the criminal act by the defendant the child was unborn and therefore not a "human being" within the meaning of Code Ann. § 26-1101(b). See Committee Notes to Tentative Draft of the Proposed Criminal Code of Georgia, Code Ch. 26-12, Abortion, p. 68 (1966).
The repeal of our feticide statute (Code § 26-1102, Ga.L.1968, p. 1432; repealed Ga.L.1973, pp. 635, 638) is not material here. The feticide statute would have applied to the death of the fetus. 1 Where the injured victim is born alive, the homicide statute applies. "Where a child born alive afterward dies by reason of bruises inflicted on it, before birth, by the beating of its mother, the offense is murder." 1 Warren on Homicide § 71 at p. 308 (1914); see 1 Wharton's Criminal Law, § 573 (1932); see also 40 Am.Jur.2d Homicide § 9; Homicide-Unborn Child, 40 A.L.R.3d 444.
Hall v. State, 243 Ga. 207, 209, 253 S.E.2d 160 (1979). Contrary to the defendant's assertions, we find that these elements were satisfied in this case. The state introduced evidence that the child was born alive, had spontaneous respiration as well as a heart rate, and could move his extremities; that he survived some 12 hours after his delivery; and that his death was caused by hyaline membrane disease, caused by his premature delivery, which itself was caused by the shooting of his mother. This is sufficient to authorize a conviction for the felony murder of the infant. Hall v. State, supra. 1 Warren on Homicide § 71, supra; 1 Wharton's Criminal Law, § 573, supra; 40 Am.Jur.2d Homicide § 9, supra; Homicide-Unborn Child, 40 A.L.R.3d 444, supra.
2. The defendant complains that the trial court erred in allowing the prosecutor over objection to impeach two of the state's witnesses, the defendant's father and sister, by use of their prior inconsistent statements. Both had given signed statements to the police on the night of the crime. The defendant contends that these statements were used by the prosecutor to impeach his own witnesses and to infer by innuendo that they were lying. We find that the defendant's father's testimony did not contradict his statement.
The defendant's sister's testimony is, however, another matter. In her statement, given shortly before 9 p. m. on December 8, 1980, she said, in part:
When she testified, the defendant's sister denied having told the police that the defendant had said in their phone conversation that if the victim lied to him he would hurt her, and maintained that he had not said that. She also testified that when she said, "Victor you done shot that gun" he responded, "I ain't shoot her, I ain't shoot her." She later testified: "He said 'I didn't shoot her, I didn't shoot her and he said she grabbed the gun later on, said she grabbed the gun, I didn't mean to shoot her, I didn't mean to shoot her.' " After looking at her statement, she said that he had never said "I done killed her" and she didn't know how it got into the statement.
The defendant objected to the prosecutor's comparison of her testimony with her statement, arguing that the prosecutor was not entitled to impeach his own witness unless he could show surprise. Code § 38-1801 provides in pertinent part: "A party may not impeach a witness voluntarily called by him, except where he can show to the court that he has been entrapped by said witness by a previous contradictory statement...."
In the recent case of Gibbons v. State, 248 Ga. 858, 286 S.E.2d 717 (1982), we held that "a prior inconsistent statement of a witness who takes the stand and is subject to cross examination is admissible as substantive evidence, and is not limited in value only to impeachment purposes." That part of Code § 38-1801 quoted above is applicable to impeachment of witnesses by prior contradictory statements. Having held in Gibbons that a prior contradictory statement of a witness is admissible as substantive evidence, the quoted portion of Code § 38-1801 is inapplicable to a witness who takes the stand and is subject to cross examination. Such witness must be given an opportunity to explain or deny the prior...
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