Sawyer v. State
| Decision Date | 03 February 1982 |
| Docket Number | No. 63165,63165 |
| Citation | 161 Ga.App. 479,288 S.E.2d 108 |
| Parties | SAWYER v. STATE. |
| Court | Georgia Court of Appeals |
The defendant, Michael Sawyer, was indicted and tried for the murder of Robert Wells--who was also known as "Rebo". He brings this appeal from his conviction for the offense of voluntary manslaughter.
Sawyer was the elected coach of the Lynwood Strokers softball team. On the afternoon of July 26, 1980, Rebo arrived at the game site prior to a scheduled game. Sawyer refused to let Rebo play because he had been drinking and had an injured foot. Rebo "got mad," cursed, and left. After the game was over the team returned to the Lynwood Park community to a store at the intersection of Windsor Parkway and Osborne Road. Rebo said something to the defendant about whether he thought it "was damn funny" and started a fight with defendant. The state's autopsy report showed deceased was 6 feet 5 inches tall and weighed 230 pounds. The defendant, according to his counsel, was 5 feet 10 inches tall and weighed about 135 to 145. A friend of the defendant attempted to pull Rebo off of the defendant. Rebo's brother Jojo, about the same size as his brother, told the people to leave them alone--"let them fight," "I'll shoot you for trying to stop them." However, Jojo and the defendant's friend stopped the fight after the defendant stated "he didn't want to fight..." One witness testified as Jojo left he said "he would go get a gun" and "he would kill everybody leaning up against the wall, that whole corner of the parking lot." Another witness stated "he said 'If you want my--if you want me and my brother, one will be on the roof and one will be in the house with a .357 Magnum.' " A different witness remembered the sequence of events as Jojo saying "he was gonna to go get his .357 and his brother and come down and shoot everybody on the corner on the wall."
A short period of time after Rebo and Jojo left the community store they returned in Jojo's van with their cousin Larry Wells. The defendant had gone home and picked up his gun and returned to the corner grocery store and was leaning up against the wall. Jojo went into the store but Rebo left the van and headed directly for the defendant. One witness testified that Rebo "said he was going to kill him [the defendant]." Another witness described the incident: The deceased was shot four times. One witness heard only three shots:
The state's two witnesses, Jojo and Larry Wells, stated that Rebo was only walking in front of the defendant when he suddenly, without warning, opened fire and shot the deceased four times.
A defense witness testified: "Rebo, he just staggered up on him [the defendant], see, and that's when I got behind that, the boy's truck, see." He was asked; The defendant appeals his conviction. Held :
1. Defendant contends the trial court erred in excluding "on motion of the State, evidence of prior acts of violence perpetrated by deceased toward appellant." We agree and reverse. After the state closed, but prior to the defense presenting any evidence, the state announced it had a motion because it anticipated "the defendant will seek to introduce evidence...of the deceased's reputation for violence and also I anticipate that they intend to introduce evidence of specific acts of violence as against this defendant..." The motion was discussed in light of the evidence already introduced by the state. The defendant's brother and cousin had testified that the defendant shot the deceased as he walked by him--without provocation. The state also introduced the oral, written, and electronically taped statements of the defendant made to the police immediately after the incident in which he stated: (1) the deceased was the assailant, (2) he had been assailed by the deceased, and (3) was acting in self-defense. He told the police that he was afraid of the deceased and his brother Jojo had told them he was going to get his .357 Magnum and "shoot out [of] the van" he was driving. "I was scared...I was trying to protect myself...he was coming at me and I was just trying to get him off me...I know the type of guy he is...I didn't want him to get on me...He drawed a gun on me on a couple of occasions, you know. And have [sic] called me out two or three times to fight, you know...His brother, [Jojo] I tell [sic] him--I say, 'Please tell Rebo to leave me alone.'
To establish a foundation for admission of a deceased's reputation for violence, Campbell v. State, 222 Ga. 570, 573, 151 S.E.2d 132 describes the test as showing "prima facie" (1) the deceased was the assailant, (2) the accused had been assailed, and (3) the defendant was honestly seeking to defend himself. Accord: Black v. State, 230 Ga. 614, 615, 198 S.E.2d 314; Curtis v. State, 241 Ga. 125, 126, 243 S.E.2d 859. Following a discussion defendant's counsel asked the court: Thereafter, the defense introduced additional evidence that the deceased was the aggressor and the defendant had been assaulted and the prosecutor conceded
The reference by the district attorney to the court admonishing the defendant's counsel earlier as not being effective referred to counsel attempting to lay the foundation for admissibility of general reputation of the deceased, and counsel asked the court if he could now "go into general reputation" and was cited for contempt. After putting on another witness counsel asked him why he ran and hid "without saying anything about the reputation of" the deceased--and was again cited for contempt. After his third citation for contempt he asked the court: "Have I laid a prima facie--THE COURT: You are attempting to provoke the Court and you're doing a pretty good job of it, sir." At this juncture, counsel asked if he could "at least have a proffer of proof for the record..." The court did not respond but directed the counsel for the state: "You go ahead, sir."
It should have been evident to defense counsel--after three citations for contempt in attempting to lay a foundation for admission of the general reputation for violence of the deceased, and two negative rulings from the trial court on admission of specific acts of violence by...
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