Steele v. State

• Decision Date: 10 February 1995
• Docket Number: Nos. A94A2298,s. A94A2298
• Parties: STEELE v. The STATE. BURKE v. The STATE. MATTHEWS v. The STATE. STANFORD v. The STATE. through A94A2301.
• Court: Georgia Court of Appeals

Page 590

454 S.E.2d 590

216 Ga.App. 276

STEELE v. The STATE.

BURKE v. The STATE.

MATTHEWS v. The STATE.

STANFORD v. The STATE.

Nos. A94A2298 through A94A2301.

Court of Appeals of Georgia.

Feb. 10, 1995.

Merrill, Stone & Parks, George R. Parks, Jr., Swainsboro, for appellant in No. A94A2298.

Reeves & Palmer, Kathy S. Palmer, Swainsboro, for appellant in No. A94A2299.

Lovett Bennett, Jr., Statesboro, for appellant in No. A94A2300.

Thomas J. O'Donnell, Sandersville, for appellant in No. A94A2301.

Richard A. Malone, Dist. Atty., Swainsboro, for appellee.

SMITH, Judge.

Johnny Lee Steele, Worth Talmadge Matthews, Robert Lee Burke, and Michael Bernard Stanford were indicted for the murder of Mary Carswell and convicted by a jury of voluntary manslaughter. OCGA § 16-5-2. Motions for new trial were made and denied as to all four defendants and they appeal.

1. Matthews enumerates as error the trial court's failure to direct a verdict of acquittal in his favor. Construed to support the jury's verdict, the evidence showed that an argument over a pool game in a nightclub escalated into a gun battle in the club's parking lot. A stray bullet travelled through the wall of the club and severed an artery in the victim's leg, causing her death from loss of blood. Matthews did not fire his pistol, but Stanford asked for and obtained Matthews' pistol to fire at Steele. A ballistics expert testified that a bullet from Steele's pistol killed the victim.

Matthews sought a directed verdict on the basis that he did not "directly cause" the victim's death, citing Hill v. State, 250 Ga. 277, 279-280(1)(b), 295 S.E.2d 518 (1982). As noted in Scott v. State, 252 Ga. 251, 313 S.E.2d 87 (1984), Hill is easily distinguished, because in that case an innocent bystander was killed by police returning the defendant's fire, and the homicide was not committed by the defendant or " 'by someone acting in concert with him.' [Cit.]" 252 Ga. at 251-252, 313 S.E.2d 87. The Hill court also acknowledged the potential responsibility of a "party to the crime" under OCGA § 16-2-20 (formerly Ga.Code Ann. § 26-801), but held that Code section did not apply to the facts before it. 250 Ga. at 280, n. 3, 295 S.E.2d 518. In contrast to the situation in Hill, Matthews was acting in concert with the other participants in the gunfight by providing a pistol to Stanford. While mere presence at the scene of a crime alone does not support a conviction, "presence, companionship, and conduct before and after the offense are circumstances from which one's participation in the criminal intent may be inferred." (Citation and punctuation omitted.) Kimbro v. State, 152 Ga.App. 893, 894, 264 S.E.2d 327 (1980). Participation in mutual combat by providing a weapon to one of the other parties is sufficient to support a conviction for voluntary manslaughter as a party to the crime under OCGA § 16-2-20(b)(3). See Coker v. State, 209 Ga.App. 142, 433 S.E.2d 637 (1993); Shehee v. State, 167 Ga.App. 542, 307 S.E.2d 54 (1983).

Matthews contends he is entitled to a directed verdict because Stanford's testimony regarding his participation in the gunfight was uncorroborated. "In Georgia, a defendant may not be convicted on an accomplice's uncorroborated testimony. The required corroboration must be independent of the accomplice's testimony and it must connect the defendant to the crime or lead to the inference that he is guilty.... However, OCGA § 24-4-8 provides that corroborating circumstances may dispense with the necessity for the testimony of a second witness. Slight corroborative evidence from an extraneous source is all that is required to support the verdict, and it may be by circumstantial evidence. It is for the jury to decide whether the evidence offered as corroboration is sufficient to support a conviction, and if the verdict is founded on slight evidence of corroboration connecting the defendant with the crime, it can not be said as a matter of law, that the verdict is contrary to the evidence." (Citations and punctuation omitted.) Fain v. State, 211 Ga.App. 399, 400-401, 439 S.E.2d 64 (1993).

In Matthews' statement to the police he admitted he took his pistol from his pocket and said "I have a gun" when Stanford asked if anyone had one. He also told Stanford the pistol would not work while the safety was on after Stanford unsuccessfully attempted to fire it. While Matthews now argues that Stanford snatched the pistol away from him and his comments were merely in the nature of a protest, this issue was for the jury to decide. There was evidence, including corroboration, from which a reasonable trier of fact could conclude that Matthews' participation in the gunfight was sufficient to support a conviction for voluntary manslaughter beyond a reasonable doubt. Jackson v. Virginia, 443 U.S. 307, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979). But see Foster v. State, 264 Ga. 369, n. 2, 444 S.E.2d 296 (1994), questioning "whether a charge on voluntary manslaughter is even authorized under the circumstances presented here," in the absence of provocation by the victim. However, in deciding Foster, the Supreme Court assumed the charge was correct, and relegated its query on the authorization of the charge to a footnote. Under these circumstances, we decline to follow the dicta in Foster with respect to the sufficiency of the evidence. See Coker v. State, 209 Ga.App. 142, 143, 433 S.E.2d 637 (1993).

2. All four defendants enumerate as error the refusal of the trial court to grant a new trial based upon the conduct of a juror during deliberations. The jurors requested a recharge on the definitions of felony murder and voluntary manslaughter shortly before ending deliberations for the evening. During the overnight recess, one juror copied a portion of the 1971 World Book Encyclopedia containing definitions of manslaughter, voluntary manslaughter, involuntary manslaughter, and a statement of the "usual penalty in the U.S." for these offenses, which differs from the penalty in Georgia. The juror read from her notes to the other members of the jury, and other jurors testified they relied on that information in reaching their verdict. At least one juror testified she specifically relied upon the information regarding sentencing.

"There is a presumption of prejudice to the defendant when an irregularity in the conduct of a juror is shown and the burden is on the prosecution to prove beyond a reasonable doubt that no harm has occurred. [Cit.]" Lamons v. State, 255 Ga. 511, 512, 340 S.E.2d 183 (1986). "There is no question that the juror's study of 'law' other than that charged by the trial court was misconduct and though it was honest in its intent, it was nevertheless intentional.... The question to be determined here is whether such study or gathering of extrajudicial law was 'so prejudicial that the verdict must be deemed "inherently lacking in due process." ' [Cit.] Under the particular facts of this misconduct, in light of the trial evidence, we are compelled to hold that it was." Moore v. State, 172 Ga.App. 844, 845-846, 324 S.E.2d 760 (1984).

As in Moore, the jurors were thoroughly examined as to the circumstances of the verdict and the juror's study of other law and communication of that law to the other jurors. From their testimony, "[w]e can only conclude that the entire jury was subjected to the charge of extrajudicial 'law.' " 172 Ga.App. at 846, 324 S.E.2d 760. Compare Tate v. State, 198 Ga.App. 276(1), 401 S.E.2d 549 (1991) and Jordan v. State, 207 Ga.App. 710, 429 S.E.2d 97 (1993), in which the information was not communicated to other jurors. The extrajudicial law offered to the jury in this case was prejudicial, particularly as it pertained to sentencing. This is true not only because the information was not in accord with Georgia law (see OCGA § 16-5-2) but because sentencing is a matter...