Roscoe v. the State.

• Decision Date: 07 March 2011
• Docket Number: No. S11A0415.,S11A0415.
• Citation: 288 Ga. 775,707 S.E.2d 90
• Parties: ROSCOEv.The STATE.
• Court: Georgia Supreme Court

288 Ga. 775

707 S.E.2d 90

11 FCDR 548

ROSCOE

v.The STATE.

No. S11A0415.

Supreme Court of Georgia.

March 7, 2011.

Peter D. Johnson, Augusta, for appellant.Ashley Wright, District Attorney, Charles R. Sheppard, Assistant District Attorney, Thurbert E. Baker, Attorney General, Mary Beth Westmoreland, Deputy Attorney General, Paula K. Smith, Senior Assistant Attorney General, Sheila E. Gallow, Assistant Attorney General, for appellee.THOMPSON, Justice.

A jury found Maurice Roscoe guilty of malice murder, possession of a firearm during the commission of a crime, and possession of a firearm by a convicted felon in connection with the fatal shooting of Pierce McCladdie, Jr. ¹ Roscoe appeals from the trial court's denial of his motion for new trial, arguing that the trial court erred in its charge to the jury and allowing the State to prove the offense of possession of a firearm by a convicted felon in a manner not charged in the indictment. We affirm.

1. Viewed in the light most favorable to the verdict, the record shows that on the night of the crimes Roscoe accused the victim's brother, Lance Lampkin, of having an affair with Roscoe's girlfriend. The two men exchanged words and the victim, his girlfriend, and Lampkin drove away. Roscoe followed and, after pulling up next to Lampkin's car at a traffic light, fired several shots at the car. The victim died from a single gunshot to the head from a nine-millimeter gun. Roscoe was discovered by police at a local hotel, where they recovered a nine-millimeter gun from under the mattress in the room where he was staying. A nine-millimeter cartridge casing was discovered in the car Roscoe was driving on the day of the crimes. We find this evidence sufficient to enable a rational trier of fact to find Roscoe 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. Citing Edge v. State, 261 Ga. 865, (414 S.E.2d 463) (1992), Roscoe contends the trial court erred by failing to instruct jurors that they must first determine whether mitigating evidence of passion or provocation would cause the offense of murder to be reduced to voluntary manslaughter. Roscoe, however, was convicted of malice murder and “there can be no harmful Edge violation when the jury convicts on a malice murder charge.” Taylor v. State, 271 Ga. 497(2), 521 S.E.2d 814 (1999).

3. Roscoe argues that the trial court erred by allowing the State to prove the offense of possession of a firearm by a convicted felon in a manner not charged in the indictment. The indictment in this case charged Roscoe with possession of a firearm by a convicted felon in that he did possess a firearm after having been convicted in September 1997 in the Superior Court of Jenkins County of the offense of theft by taking, a felony. At trial, however, the State submitted a certified copy of Roscoe's 2001 Richmond County conviction for felony possession of cocaine because it discovered the Jenkins County offense may not have constituted a conviction as Roscoe received first offender treatment.

Even assuming that evidence of a different conviction was a variance from the allegations in the possession counts in the indictment, we conclude it did not constitute a fatal variance requiring reversal. See Miller v. State, 283 Ga. 412, 416, 658 S.E.2d 765 (2008) (“[I]t is irrelevant to a charge under OCGA § 16–11–131(b) what felony formed the basis of the prior...