Rogers v. the State., S11A0767.

• Decision Date: 12 September 2011
• Docket Number: No. S11A0767.,S11A0767.
• Citation: 289 Ga. 675,11 FCDR 2864,715 S.E.2d 68
• Parties: ROGERSv.The STATE.
• Court: Georgia Supreme Court

289 Ga. 675

715 S.E.2d 68

11 FCDR 2864

ROGERS

v.The STATE.

No. S11A0767.

Supreme Court of Georgia.

Sept. 12, 2011.

Timothy Lee Eidson, Cordele, for appellant.Denise D. Fachini, District Attorney, Paula Khristian Smith, Senior Assistant Attorney General, Samuel S. Olens, Attorney General, Jason Charles Fisher, Assistant Attorney General, Mary Beth Westmoreland, for appellee.CARLEY, Presiding Justice.

After a jury trial, Appellant Caesar Octavious Rogers was found guilty of malice murder, burglary, possession of a firearm during commission of a felony, and possession of a firearm by a convicted felon. The trial court entered judgments of conviction and sentenced Appellant to life imprisonment for malice murder, a concurrent 20–year term for burglary, a five-year consecutive term for possession of a firearm during the commission of a felony, and a concurrent five-year term for possession of a firearm by a convicted felon. Appellant appeals after the denial of a motion for new trial.^*

1. Construed most strongly in support of the verdicts, the evidence shows that on October 13, 2008, Appellant Caesar Octavious Rogers and others were watching a group of men play checkers. The victim, Clayton Bernard Carter, was also present and approached Appellant with the purpose of buying drugs. Appellant refused to make the sale because the victim had an unpaid debt for past drug purchases. A heated argument ensued between Appellant and the victim that lasted several minutes. The verbal altercation ended with the victim leaving the location to retrieve a .38 caliber revolver from his residence. The victim returned to the location with the revolver and fired it one or two times into the air. Appellant called someone on his cell phone and said to “bring that,” and a witness who overheard the telephone call believed that Appellant meant to bring a gun.

Shortly after the above described altercation, the victim returned home and Appellant was observed approaching the victim's residence with his hands concealed in his jacket. Appellant walked down the side of the victim's residence, peeked around, and then doubled back. Minutes later the victim's neighbor heard a gunshot coming from the vicinity of the victim's residence. Another neighbor witnessed Appellant run down an alley behind the residence and get into the back seat of a waiting car that drove away from the scene.

Mary Alice Rawls lived with the victim at the time of the shooting and returned home from work that day to find him shot dead and lying on the bedroom floor. She called 911. The victim was fatally shot in the neck. The bullet which killed him was recovered and was determined to be a .40 caliber projectile, a type of bullet that could not have been discharged from the revolver that the victim was seen carrying earlier in the day.

The evidence was sufficient for a rational trier of fact to find Appellant 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. The trial court rejected a timely written request by Appellant to charge the jury on unlawful act involuntary manslaughter as a lesser included offense of the crime of murder. Appellant contends on appeal that rejection of his requested instruction was reversible error.

A person commits the offense of involuntary manslaughter in the commission of an unlawful act when he causes the death of another human being without any intention to do so by the commission of an unlawful act other than a felony.

OCGA § 16–5–3(a). According to an in-custody statement made by Appellant to police, he went to the victim's residence with the purpose of instigating a fist fight. He stated that he went around to the back of the residence, saw the victim through the bedroom window, and yelled for the victim to come out to fight. When the victim refused to come out of the house, according to Appellant, he grabbed a bucket to stand on and began punching the victim through the window. At this time, according to Appellant, the victim grabbed a gun, and, after a struggle for the gun, it accidentally fired, resulting in the bullet wound to the victim's neck that killed him.

In short, according to Appellant's statement, he went to the victim's residence with the intention of causing physical harm to the victim or placing the victim in reasonable apprehension of violent injury, which would constitute the offenses of simple battery or simple assault, both of which are classified as misdemeanors and thus each would qualify as “an unlawful act other than a felony” for purposes of involuntary manslaughter. OCGA §§ 16–5–3(a), 16–5–20(a), 16–5–23(a)(2). Appellant never admitted that he brought a gun, or any other kind of deadly weapon, which would raise the offenses to felony status. Compare Finley v. State, 286 Ga. 47, 49–50(4)(b), 685 S.E.2d 258 (2009) (defendant was a convicted felon and admitted to possessing a gun, which constitutes a felony); Smith v. State, 264 Ga. 857, 858(2), 452 S.E.2d 494 (1995) (defendant testified that “he brought the gun into the room [with the victim] with the specific intent of inducing fear of violent injury”). In fact, he asserted that the victim brandished the gun. Finally, he claimed that he went to the victim's residence for the sole purpose of instigating a fist fight, and that the victim was killed unintentionally by an accidental discharge of the victim's gun. Therefore, from Appellant's statement, the jury could have concluded that Appellant was guilty of involuntary manslaughter as opposed to intentional murder.

“(A) written request to charge a lesser included offense must always be given if there is any evidence that the defendant is guilty of the lesser included offense.” [Cit.] ... Although certainly subject to attack as weak, incomplete or self-serving, [Appellant's] statement to the [police] constitutes at least “any evidence that the defendant is guilty of the lesser included offense” which mandates giving the requested written charge, as such evidence would entitle a jury to believe his version.

Edwards v. State, 264 Ga. 131, 132, 442 S.E.2d 444 (1994). Moreover, there was some evidence consistent with Appellant's statement, including that a bucket was found under the bedroom window that was turned over as if someone used it to stand on, the bedroom window of the house was open and the screen had been damaged, and Appellant's cell phone was found on the ground under the window. Of course, there was also ample evidence that would cast doubt on Appellant's version of events. However, it is “ ‘for the jury to determine the credibility of the witnesses and to resolve any conflicts or inconsistencies in the evidence. (Cits.)’

[Cit.]” Vega v. State, 285 Ga. 32(1), 673 S.E.2d...