Smith v. State
| Decision Date | 30 January 1995 |
| Docket Number | No. S94A1166,S94A1166 |
| Citation | 264 Ga. 857,452 S.E.2d 494 |
| Parties | SMITH v. The STATE. |
| Court | Georgia Supreme Court |
Alan C. Manheim, Lewis P. Perling, Alan C. Manheim, P.C., Marietta, for Smith.
Thomas J. Charron, Dist. Atty., D. Victor Reynolds, Asst. Dist. Atty., Marietta, Michael J. Bowers, Atty. Gen., Atlanta, for State.
Debra Halpern Bernes, Nancy I. Jordan, Asst. Dist. Attys., Marietta.
Susan V. Boleyn, Sr. Asst. Atty. Gen., Paige M. Reese, Staff Atty., Dept. of Law, Atlanta.
Charles Dennis Smith was found guilty of the felony murder of James Lamar Elliott. He appeals from the denial of his motion for a new trial. 1
Appellant was working for Elliott at a house construction site when the two men got into an argument after Elliott criticized work appellant had done. Co-workers testified that when appellant got in Elliott's face, Elliott pushed appellant back, stated he did not want to fight, and told appellant to go home. Appellant responded by saying he was going to get his gun. Co-workers saw appellant leave the house, go to his truck, retrieve his gun, and run back to the house. A co-worker saw appellant enter the room with a .25 caliber pistol pointed upwards. Elliott, who had been warned by the co-worker, lunged at appellant and the two men struggled over the weapon. Appellant shot Elliott in the leg from a distance of over five feet and then in the face from less than five feet. Elliott died two days later as a result of the head wound.
Appellant testified that the work argument escalated into a fight and that Elliott, because of his greater size and strength, beat appellant. Appellant stated that his purpose in getting the gun was to allow him to talk with Elliott without being attacked. He testified that the gun was pointing down when he entered the room, that Elliott immediately attacked him, and that he had no control over the gun during the fight, testifying that he did not remove the safety on the weapon, never had his hand on the trigger, and could not remember pulling the hammer.
1. We find the evidence sufficient to support appellant's conviction. Jackson v. Virginia, 443 U.S. 307, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979).
2. We find no error in the trial court's refusal to give appellant's requested charge on involuntary manslaughter. As to OCGA § 16-5-3(a), there was no evidence to support the requested charge based on the unlawful act of reckless conduct, in that appellant's own testimony established he brought the gun into the room with the specific intent of inducing fear of violent injury in Elliott in order to prevent him from attacking appellant, accord Riley v. State, 181 Ga.App. 667(3), 353 S.E.2d 598 (1987), rather than out of criminal negligence. Compare Bowers v. State, 177 Ga.App. 36, 338 S.E.2d 457 (1985). The trial court's refusal to give the requested charge based on the unlawful act of pointing a gun at another was also proper given the uncontroverted evidence that Elliott responded to the gun by immediately lunging at appellant and struggling with him over the weapon, thereby establishing that Elliott was placed in reasonable apprehension of immediate violent injury. Rhodes v. State, 257 Ga. 368(5), (6), 359 S.E.2d 670 (1987). We find no merit in appellant's argument that the evidence supported a charge pursuant to OCGA § 16-5-3(b), lawful act--unlawful manner involuntary manslaughter. Cook v. State, 249 Ga. 709(4), 292 S.E.2d 844 (1982).
3. Appellant contends the trial court erred by admitting statements he made to police before he was read his Miranda rights. It is well established that a trial court's findings as to factual determinations and credibility relating to the admissibility of a statement will be upheld on appeal unless clearly erroneous. Brown v. State, 262 Ga. 833(6), 426 S.E.2d 559 (1993). After the Jackson v. Denno hearing, the trial court found that appellant, in a phone call made to the police shortly after midnight of the day of the shooting, voluntarily discussed turning himself in with Detective Dawes. In the course of the call, Dawes inquired about the gun used in the crime and was told by appellant that he would bring it with him. Twenty minutes later, when appellant arrived at the police station and was placed in an interview room by Dawes, the officer asked if appellant brought the gun with him. The trial court found that this question about the gun was a follow-up to the phone conversation and was asked out of concern for the safety of the officers at the police station. Appellant informed Dawes that the gun was outside. In the time while another officer went to retrieve the gun and Dawes began preparing booking forms and Miranda rights forms (intending to await the arrival of another investigating officer before reading appellant his rights), the trial court found that appellant, voluntarily and spontaneously and not in response to any questioning, began making comments about the gun (its caliber, the number of shots fired, etc.) and then gave his version of the events, including a statement that he did not mean to shoot to kill Elliott but intended only to scare him. During this statement, the other investigating officer arrived and noticed a smell of alcohol about appellant. When appellant paused, the officer asked appellant if he had been drinking. When appellant stated he had imbibed 12 beers in the past hour, the officers stopped all conversation and appellant was taken to a detention center. The trial court, crediting the officers' testimony that they had noted no verbal or physical indications of intoxication, found that notwithstanding appellant's beer consumption, his statement was voluntary and not elicited by any questions posed by the officers. Likewise, the trial court found that when Dawes met with appellant approximately eleven hours later and appellant, in response to Dawes' initial inquiry about how he was feeling, stated not only that he was feeling better but also proceeded without any further comment from Dawes to give a statement in which he basically reiterated his earlier comments, that this statement was voluntary and not made in response to any custodial interrogation. When appellant stopped...
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