Sharpe v. State

Decision Date29 May 2012
Docket NumberNo. S12A0677.,S12A0677.
Citation12 FCDR 1785,291 Ga. 148,728 S.E.2d 217
PartiesSHARPE v. The STATE.
CourtGeorgia Supreme Court


Peter D. Johnson, Augusta, for appellant.

Paula Khristian Smith, Sr. Asst. Atty. Gen., Samuel S. Olens, Atty. Gen., Clint Christopher Malcolm, Asst. Atty. Gen., Department of Law, Rebecca Ashley Wright, Dist. Atty., for appellee.

THOMPSON, Justice.

Appellant Theodore Fred Sharpe was convicted of malice murder in connection with the deaths of Herman “Rusty” Cadle and Stillson “Larry” Lawrence and was sentenced to two consecutive life terms.1 Appellant's amended motion for new trial was denied, and he now appeals that decision. On appeal, appellant challenges the sufficiency of the evidence and alleges trial court error in allowing an expert witness to express an opinion regarding an ultimate issue in the case, in excluding exculpatory evidence, in improperly charging the jury on the offense of arson, and in failing to give a complete charge on the form of the verdict. For the reasons which follow, we affirm.

1. Viewed in a light most favorable to the verdict, the evidence shows that Cadle and Lawrence died in a fire that swept through their residence while they slept on the night of June 9, 2008. Appellant, who lived with the victims, and Celisa Hamilton were seen arguing at the residence immediately before the fire. A witness heard Hamilton yell that she was going to kill somebody and saw appellant exit through the front door with a flashlight and walk over to an area on the side of the residence where law enforcement later discovered multiple gas cans. Appellant reentered the residence with something in his hand and then stood in the front doorway with Hamilton. The witness observed them “throw something” followed by the eruption of flames in the front portion of the house at which time appellant and Hamilton fled. Appellant later returned to the scene of the fire as firefighters were trying to revive one of the victims and commented that he was glad one of the victims was dead. A crime scene investigator and an arson investigation expert both concluded that an accelerant had been used and the arson expert determined that the fire was intentionally set.

Appellant contends that the actual cause of the arson was never determined and all of the evidence against him was circumstantial. Contrary to appellant's assertions, however, there was substantial evidence linking him to the murders and we conclude the evidence was sufficient to enable a rational trier of fact to find him guilty beyond a reasonable doubt. Jackson v. Virginia, 443 U.S. 307, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979).

2. Next, appellant argues that the trial court erred in allowing the medical examiner to characterize the manner of death for the two victims as homicides.2 He contends that this testimony constituted both an expression of opinion as to an ultimate issue in the case and an improper bolstering of the arson investigator's opinion. We disagree.

Generally, witnesses are prohibited from expressing opinions on an ultimate issue where jurors can come to their own conclusion from factors within their understanding. Maxwell v. State, 262 Ga. 73, 76, 414 S.E.2d 470 (1992), overruled on other grounds, Wall v. State, 269 Ga. 506, 500 S.E.2d 904 (1998). However, [i]n criminal cases, the opinions of experts on any question of science, skill, trade, or like questions shall always be admissible; and such opinions may be given on the facts as proved by other witnesses.” OCGA § 24–9–67. Here, the medical examiner based his opinions on his specific expertise and training as a pathologist and on evidence presented to him by law enforcement regarding the fire. Testifying that it was part of his job to determine both the cause and manner of death, the witness clarified that his classification of the manner of death as a homicide was limited to the medical aspect for the autopsy report and was not a legal charge. As the medical examiner's testimony regarding the manner of death did not improperly invade the province of the jury on the ultimate issue of whether the deaths were intentional killings or accidents, the trial court did not err in allowing him to explain his classification. See Willis v. State, 274 Ga. 699, 558 S.E.2d 393 (2002). Nor do we agree with appellant's unsupported assertion that simply by using the arson investigator's testimony as a basis for his conclusion, the medical examiner improperly “bolstered” the investigator's opinion.

Finally, we conclude that even had the trial court erred in permitting this testimony, such error was harmless where the plain and overwhelming inference to be drawn from the evidence presented at trial was that the fire was intentionally set and there was no evidence presented to the contrary. See Suits v. State, 270 Ga. 362, 365–366, 507 S.E.2d 751 (1998).

3. Appellant additionally complains that the trial court erroneously excluded exculpatory evidence when it refused to admit a recording of a 911 call appellant made to report the fire. However, appellant chose not to testify at trial and was not subject to cross-examination, thus the trial court did not err in holding that the 911 call was a self-serving declaration and inadmissible hearsay. Parker v. State, 276 Ga. 598, 581 S.E.2d 7 (2003). While a defendant is allowed to declare his innocence in open court, he is not allowed to avoid this opportunity by “pre-trial declarations of innocence.” Id. Although appellant argues that the 911 call could have been admitted under the res gestae exception to hearsay pursuant to OCGA § 24–3–3, a determination of admissibility under this exception is left to the trial court's sound discretion. See Bonilla v. State, 289 Ga. 862, 863, 717 S.E.2d 166 (2011). We find no abuse of discretion and hold that this enumeration lacks merit.

4. Appellant also argues that the trial court improperly charged the jury on the offense of arson in the first degree by charging provisions of the arson statute not alleged in the indictment. He asserts that although his indictment only charged him with a violation of OCGA § 16–7–60(a)(1), the trial court's jury instructions erroneously included charges for both OCGA § 16–7–60(a)(1) and (a)(5).3 Further, appellant claims there is at least a modicum of evidence that the jury convicted him of a crime not in the indictment. See Hunley v. State, 227 Ga.App. 234, 235, 488 S.E.2d 716 (1997); but see Stanford v. State, 236 Ga.App. 597, 512 S.E.2d 708 (1999). We disagree.

“Where the indictment charges a defendant committed an offense by one method, it is reversible error for the court to instruct the jury that the offense could be committed by other statutory methods with no limiting instruction. [Cit.] The defect is cured, however, where ... the court provides the jury with the indictment and instructs jurors that the burden of proof rests upon the State to prove every...

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15 cases
  • Butler v. State
    • United States
    • Georgia Supreme Court
    • February 4, 2013
    ...on an ultimate issue where jurors can come to their own conclusion from factors within their understanding.” Sharpe v. State, 291 Ga. 148, 149–150(2), 728 S.E.2d 217 (2012) (citation omitted). In this case, however, the identity of the person who caused the death of Jamira and that her deat......
  • Smith v. State
    • United States
    • Georgia Court of Appeals
    • July 16, 2015
    ...could be committed by other statutory methods with no limiting instruction.” (Citation and punctuation omitted.) Sharpe v. State, 291 Ga. 148, 151(4), 728 S.E.2d 217 (2012). Such defects are cured, however, if the trial court “provides the jury with the indictment and instructs jurors that ......
  • Chavez v. State, A14A0966.
    • United States
    • Georgia Court of Appeals
    • October 3, 2014
    ...of the crime charged beyond a reasonable doubt,” and that the burden of proof never shifts to the defendant. See Sharpe v. State, 291 Ga. 148, 151(4), 728 S.E.2d 217 (2012) ; Wright v. State, 327 Ga.App. 451, 452, 757 S.E.2d 890 (2014) ; Henderson, 320 Ga.App. at 562(8), 740 S.E.2d 280 ; Ti......
  • Jones v. State
    • United States
    • Georgia Supreme Court
    • April 16, 2018
    ...of such evidence only for an abuse of discretion. See Pierce v. State , 302 Ga. 389, 391, 807 S.E.2d 425 (2017) ; Sharpe v. State , 291 Ga. 148, 150, 728 S.E.2d 217 (2012). Generally, whether a statement is part of the res gestae depends on a number of factors, including "the timing of the ......
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