Stobbart v. State

• Decision Date: 10 July 2000
• Docket Number: No. S00A0510.,S00A0510.
• Citation: 533 S.E.2d 379,272 Ga. 608
• Parties: STOBBART v. The STATE.
• Court: Georgia Supreme Court

533 S.E.2d 379

272 Ga. 608

STOBBART v. The STATE.

No. S00A0510.

Supreme Court of Georgia.

July 10, 2000.

Jerome C. KcKee, Decatur, for appellant.

J. Tom Morgan III, District Attorney, Barbara B. Conroy, Maria Murcier-Ashley, Assistant District Attorneys, Thurbert E. Baker, Attorney General, Paula K. Smith, Senior Assistant Attorney General, Adam M. Hames, Assistant Attorney General, for appellee.

HINES, Justice.

Christopher Stobbart appeals his convictions for malice murder, aggravated assault, and possession of a firearm during the commission of a crime. For the reasons that follow, we affirm in part and reverse in part. ¹

Construed to support the verdicts, the evidence showed that the shooting victim, Carmen James DeFranks, owned a towing company for which Stobbart worked. On the night of the shooting, Stobbart and DeFranks argued in the parking lot of a tavern. DeFranks blamed Stobbart for assisting Dobrick, a co-worker and roommate of Stobbart's, in avoiding work that evening, by allowing Dobrick to accompany Stobbart to the tavern. Dobrick stated that he was quitting DeFranks's company; Stobbart had given his own notice earlier. The exchange between Stobbart and De Franks grew heated and Stobbart testified that DeFranks took a pistol from his automobile and placed it in his pants at the small of his back, saying to Stobbart: "I don't know why you're f___ing me; you f___ with the bull, you get the horns." Stobbart knew that DeFranks usually had a pistol either on his person or in his automobile.

Later, Stobbart and a female friend, Martin, went to Stobbart's apartment and found DeFranks with Stobbart's other roommate, Marchitelli, who also worked for DeFranks. Stobbart and DeFranks resumed their argument, during which both Stobbart and Martin attempted to leave. DeFranks stood in the door and told them they could not. Stobbart asked DeFranks to let Martin leave because she was not a part of the argument but DeFranks refused. At one point, Stobbart went out on his balcony and saw a friend, Paden, and told him that DeFranks had a pistol. Paden asked Stobbart what he wanted him to do, but Stobbart said he did not know. DeFranks called Stobbart back into the apartment, told Stobbart to put down the cellular telephone he was carrying, and the argument resumed. DeFranks told Stobbart that he would "get what's coming to [him]" and that DeFranks would "take care of [him]." Stobbart testified that during the argument, DeFranks placed his hand on his pistol and Stobbart could see the butt of the weapon.

Stobbart went into his bedroom and retrieved his own pistol. He emerged and shot DeFranks. He shot DeFranks several times, turned to Marchitelli who was seated on the sofa, pointed the pistol at him and asked if he had a problem. Marchitelli said no and Stobbart told him to leave, which he did, as did Martin. Stobbart went into his bedroom for more ammunition, and, as DeFranks lay on the floor, shot him several more times. Stobbart then called 911 and told the operator that he had shot and killed someone because the shooting victim would not let him leave his apartment.

1. The evidence authorized the jury to conclude that Stobbart was guilty of the crimes of which he was convicted. Jackson v. Virginia, 443 U.S. 307, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979); Burnett v. State, 270 Ga. 885, 886, 515 S.E.2d 150 (1999).

2. Stobbart gave notice of intent to present evidence of prior violent acts perpetrated by DeFranks. See Uniform Superior Court Rule 31.6. The State moved in limine for an order prohibiting Stobbart from introducing any mention of prior violent acts by DeFranks, or any mention of a reputation for violence on the part of DeFranks, including any assertion that DeFranks was a member of organized crime, and the trial court granted the motion until such time as a prima facie case of justification had been made. See Knight v. State, 271 Ga. 557, 560-561(4), 521 S.E.2d 819 (1999). After Stobbart's direct testimony to the jury, and again after his cross-examination, the court ruled that a prima facie case of justification had not been made. Stobbart contends it was error for the trial court to exclude evidence of DeFranks's violent acts, to exclude evidence of his reputation for violence, and to require that Stobbart's statement to the police not be read to the jury until portions dealing with an incident in which DeFranks and Marchitelli beat a tow truck driver, and an assertion by DeFranks that he was in the Mafia, were redacted.

To make a prima facie showing of justification so as to allow evidence of violent acts by the victim against third parties, "the defendant must show that the victim was the aggressor, the victim assaulted the defendant, and the defendant was honestly trying to defend himself." Knight, supra, quoting Laster v. State, 268 Ga. 172, 174(2), 486 S.E.2d 153 (1997). The same showing must be made to introduce evidence of the victim's reputation for violence. See Smith v. State, 267 Ga. 372, 374(3), 477 S.E.2d 827 (1996).

There was evidence showing each of the elements of the prima facie case. It could be concluded that by barring the door, DeFranks was the aggressor. In fact, it could be inferred he was committing the crime of false imprisonment. See OCGA § 16-5-41(a); Herrin v. State, 229 Ga.App. 260, 263(3), 493 S.E.2d 634 (1997). His acts of threatening Stobbart while placing his hand behind his back and on his pistol could be deemed to be an assault. See OCGA § 16-5-20(a)(2); Hall v. State, 189 Ga.App. 107, 108(1), 375 S.E.2d 50 (1988). Finally, on cross-examination, Stobbart testified that when he fired, DeFranks had his hand behind his back. This is evidence from which it could be concluded that Stobbart was honestly trying to defend himself when he shot DeFranks. Justification was Stobbart's sole defense and that defense was largely dependent on what Stobbart knew about DeFranks. Thus, the excluded evidence was highly relevant to his defense, and it cannot be said that the error in refusing the admission of this evidence was harmless. See Barber v. State, 268 Ga. 156, 158(2), 486 S.E.2d 353 (1997).

Accordingly, the conviction for malice murder cannot stand, nor can the conviction for possession of a firearm during the commission of a crime, as the crime specified in the indictment was malice murder.

3. Stobbart was charged with aggravated assault for pointing the pistol at Marchitelli. He argues that the trial court should have instructed the jury on the lesser offenses of simple assault, reckless conduct, and pointing a firearm at another.

Stobbart testified that he pointed the pistol at Marchitelli because he feared that Marchitelli might be armed and he wanted...