Sapp v. State, S11A0964.

• Decision Date: 08 December 2011
• Docket Number: No. S11A0964.,S11A0964.
• Citation: 11 FCDR 3681,719 S.E.2d 434,290 Ga. 247
• Parties: SAPP v. The STATE.
• Court: Georgia Supreme Court

11 FCDR 3681

290 Ga. 247

719 S.E.2d 434

SAPP

v.The STATE.

No. S11A0964.

Supreme Court of Georgia.

Nov. 21, 2011.Reconsideration Denied Dec. 8, 2011.

Jerry M. Daniel, Waynesboro, for appellant.

Charles R. Sheppard, Asst. Dist. Atty., Paula Khristian Smith, Department of Law, Sr. Asst. Atty. Gen., Ashley Wright, Dist. Atty., Samuel S. Olens, Atty. Gen., Sara Kur Sahni, Asst. Atty. Gen., Department of Law, for appellee.

HINES, Justice.

Raymond Trey Sapp appeals his convictions for the felony murder of Simpson Tyrone Cates, criminal attempt to possess cocaine, and possession of a firearm during the commission of a crime.¹ For the reasons that follow, we affirm in part and vacate in part.

Construed to support the verdicts, the evidence showed that Cates's cousin Carlos Pressley was a seller of illegal drugs. A relative of Sapp's, his co-indictee Christopher Derek Chance, was a regular customer of Pressley's. At 6:00 p.m. Friday, November 28, 2008, Sapp and Chance met Cates and Pressley on a rural road to purchase drugs; at this location, Pressley typically sold drugs from a parked car, having the purchaser's vehicle approach so as to have the driver's windows adjacent to each other, and exchanging money and drugs through the open windows of the two vehicles. However, because Cates's car was used for this exchange and the windows in it did not work properly,² Pressley exited the car to make the exchange. After the exchange, the parties departed the area.

Early the next morning, Pressley received a telephone call from Chance, who wished to buy $150 worth of cocaine. Pressley, by telephone, arranged for Cates to make the sale at the same location where the parties had met a few hours earlier. Cates arrived in his car, and Chance and Sapp later arrived in Chance's pickup truck. At trial, Sapp testified consistent with a statement he gave to law enforcement personnel the day after the shooting, that: he was in the passenger seat of Chance's pickup truck; Chance was in the driver's seat; Chance parked the truck so as to be able to reach through the driver's side window of his truck and the driver's side window of Cates's car; Chance received the drugs from Cates; Chance dropped the drugs in the truck, reached down as though to retrieve them, but picked up a shotgun; Chance shot Cates through the open windows of the two vehicles; and that this was a surprise to Sapp. When Cates's car was found, the engine was running, the car doors and windows were closed, and Cates's body was behind the steering wheel, with the torso leaning down to the right. Physical evidence showed that: Cates had been shot at close range in the left side of the head; there were blood stains on the interior of the driver's side window of Cates's car; blood spatter patterns on the driver's side door of Cates's car indicated it was open when Cates was shot; DNA from a blood stain on the lower left side of a shirt of Chance's matched that of Cates.

1. The evidence was sufficient to enable a rational trier of fact to find Sapp guilty beyond a reasonable doubt of all the crimes of which he was convicted.³ Jackson v. Virginia, 443 U.S. 307, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979). However, after the jury found Sapp guilty of felony murder while in the commission of the felony of criminal attempt to possess cocaine, and also of the felony of criminal attempt to possess cocaine, he was sentenced on each charge. But, he could not be sentenced on both felony murder and the underlying felony when found guilty of both. OCGA § 16–1–7; Bolston v. State, 282 Ga. 400, 401(2), 651 S.E.2d 19 (2007); Thomas v. State, 256 Ga. 176, 177(3), 345 S.E.2d 350 (1986). We therefore must vacate the separate judgment of conviction and sentence for criminal attempt to possess cocaine. Nix v. State, 280 Ga. 141, 142(2), 625 S.E.2d 746 (2006).

2. Sapp contends that the trial court erred in failing to instruct the jury on the law regarding proximate cause and its relationship to felony murder. Under OCGA § 17–8–58(a),⁴ Sapp was required to “inform the court of the specific objection and the grounds for such objection before the jury retire[d] to deliberate.” At the close of the jury instructions, Sapp did not do so, merely stating that he renewed his objections made during the jury charge conference. But, no transcript of the jury charge conference is in the record, and the parties state that it was not recorded. Thus, this Court will ordinarily presume that the trial court acted correctly. Parks v. State, 248 Ga.App. 405, 406(2), 544 S.E.2d 536 (2001); Adams v. State, 234 Ga.App. 696, 697(2), 507 S.E.2d 538 (1998).

Despite his failure to demonstrate that he raised an objection to the jury not receiving an instruction regarding proximate cause and its relationship to felony murder, Sapp argues to this Court that the omission of a specific instruction on this subject constitutes plain error. Plain error must be addressed on appeal in this circumstance. See State v. Kelly, 290 Ga. 29, 31(1), 718 S.E.2d 232 (2011). In Kelly, supra, this Court set forth the test for determining whether there is plain error injury instructions.

First, there must be an error or defect—some sort of “[d]eviation from a legal rule”—that has not been intentionally relinquished or abandoned, i.e., affirmatively waived, by the appellant. Second, the legal error must be clear or obvious, rather than subject to reasonable dispute. Third, the error must have affected the appellant's substantial rights, which in the ordinary case means he must demonstrate that it “affected the outcome of the [trial] court proceedings.” Fourth and finally, if the above three prongs are satisfied, the [appellate court] has the discretion to remedy the error—discretion which ought to be exercised only if the error “ ‘seriously affect[s] the fairness, integrity or public reputation of judicial proceedings.’ ”

Id. at 33(2)(a), 718 S.E.2d at 235–36.

The record does not demonstrate whether Sapp affirmatively waived the alleged error.⁵ And, he did not file a written request to charge on proximate cause,⁶ nor does he now state what specific language should have been charged to the jury that would have been adjusted to the evidence. See Roper v. State, 281 Ga. 878, 880(2), 644 S.E.2d 120 (2007). But, assuming that the circumstances of this case indicated that the jury should have been instructed on a definition of proximate cause, the omission of the definition cannot be considered an error “clear or obvious, rather than subject to reasonable dispute.” Kelly, supra.

As to causation, the jury was instructed that to find Sapp guilty of felony murder while in the commission of felony criminal attempt to possess cocaine, it must “find beyond a reasonable doubt that the felony was dangerous per se or ... by the attendant circumstances in this case created a foreseeable risk of death....” And, the jury was instructed that, for felony murder to...