Terry v. State

• Decision Date: 10 September 2012
• Docket Number: No. S12A0788.,S12A0788.
• Citation: 12 FCDR 2775,731 S.E.2d 669,291 Ga. 508
• Parties: TERRY v. The STATE.
• Court: Georgia Supreme Court

291 Ga. 508

731 S.E.2d 669

12 FCDR 2775

TERRY

v.The STATE.

No. S12A0788.

Supreme Court of Georgia.

Sept. 10, 2012.

James C. Bonner, Jr., Georgia Public Defender Standards Council, Jimmonique R. S. Rodgers, GPDSC Appellate Division, Atlanta, Georgia, for Appellant.

Paul L. Howard, Jr., Dist. Atty., Paige Reese Whitaker, Deputy Dist. Atty., Office of the District Attorney, Atlanta, Georgia, for Appellee.

BENHAM, Justice.

Appellant Fredrick Terry was found guilty of and sentenced for the felony murder of James Hansell and for the possession of a firearm during the commission of a felony.¹ In his appeal from the judgment of conviction, appellant contends the trial court erred in its instructions to the jury.

The State presented evidence that James Hansell died on March 14, 2008, as a result of multiple gunshot wounds he had sustained to his head and torso five days earlier. The county's associate medical examiner testified that several of the shots entered the victim's back, and the shot that struck the victim's head was a “back-to-front” wound. The victim was shot in the early afternoon on March 9 on the grounds of the Fulton County apartment complex at which both he and appellant lived. Two other residents who knew both the victim and appellant identified appellant as the man they heard arguing with the victim outside appellant's apartment and as the man they saw enter appellant's apartment, emerge from the apartment carrying a gun, follow the victim who was walking away, and shoot the victim repeatedly. Both witnesses testified they did not see the victim with a weapon. A woman who lived in appellant's apartment testified that appellant retrieved a gun from the apartment just before the victim was shot. A firearms expert testified that bullets recovered from the victim's body and from the area where the victim fell after being shot were all fired from the same weapon and, based on gunpowder residue on the victim's clothing, that the shots were fired when the gun was between 36 and 42 inches from the victim. Appellant testified that he had been angry with the victim two days before the shooting because the victim sold him a DVD player that did not work and angrily refused to refund the purchase price; that appellant told the victim immediately before the shooting that he need not return the money and wished blessings on the victim; that the victim threatened appellant, shoved him, and followed him into his apartment; that appellant retrieved his gun, pointed it at the victim, and that the gun started firing repeatedly as the two men “tussled.”

1. The evidence summarized above was sufficient to authorize a rational trier of fact to find appellant guilty beyond a reasonable doubt of possession of a firearm during the commission of a crime and felony murder, with aggravated assault as the underlying felony. Jackson v. Virginia, 443 U.S. 307, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979).

2. Appellant takes issue with the content of the jury instructions given by the trial court. Because trial counsel did not object to the jury instructions at trial, appellate review of the contentions is precluded unless the contested portion of the jury charge “constitutes plain error which affects substantial rights of the parties.” OCGA § 17–8–58(b). We review for plain error an alleged jury-instruction error if the error is properly enumerated and argued on appeal. State v. Kelly, 290 Ga. 29(1), 718 S.E.2d 232 (2011). Reversal of a conviction is authorized if all four prongs of the standard adopted in Kelly are met: the instruction was erroneous, the error was obvious, the instruction likely affected the outcome of the proceedings, and the error seriously affects the fairness, integrity or public reputation of judicial proceedings. White v. State, 291 Ga. 7(2), 727 S.E.2d 109 (2012). On “plain error” review, the presence of actual legal error is not enough, as the jury instruction in question must have an obvious defect rather than a merely arguable defect. Wilson v. State, 291 Ga. 458, 729 S.E.2d 364 (2012).

a. Appellant contends the trial court's presentation of the concepts of justification that serves as a defense to criminal charges, and passion resulting from provocation that could reduce murder to voluntary manslaughter, was done in such a manner that a reasonable juror would not understand the distinction between the two principles. The jury instructions given by the trial court were those found in the suggested pattern jury instructions published by the Council of Superior Courts of Georgia. Appellant suggests that the instructions “blurred the line” between the two concepts and misled the jury in its evaluation of voluntary manslaughter. Appellant maintains the “overly casual” use of the terms “justify” and “justification” in the instructions could have caused the jury to have understood wrongly that limitations on and conditions precedent to the application of the law of justification were also applicable to voluntary manslaughter. In DeLeon v. State, 289 Ga. 782(3), 716 S.E.2d 173 (2011), this Court reviewed the content of the jury charges of justification, provocation, and voluntary manslaughter in a case where all the concepts were supported by some evidence, and we concluded they were not confusing. “Given that our case law runs contrary to appellant's position, it cannot be seriously contended that the trial court committed ‘clear or obvious' error” that is necessary for “plain error.” State v. Kelly, supra, 290 Ga. 29(2b), 718 S.E.2d 232.

b. Citing Russell v. State, 265 Ga. 203(3), 455 S.E.2d 34 (1995), appellant asserts plain error in the trial court's failure to advise the jury that it could not find appellant guilty of felony murder if it found provocation and passion with respect to the act which caused the killing. The instruction appellant asserts should have been given was suggested by this Court in Edge v. State, 261 Ga. 865, 867(n.3), 414 S.E.2d 463 (1992), and its omission was found to be reversible error in Russell.

The intent of Edge is to prevent a trial court from authorizing a jury to find a defendant guilty of felony murder without considering evidence of provocation or passion which might authorize a verdict of voluntary manslaughter. Miner v. State, 268 Ga. 67, 68, 485 S.E.2d 456 (1997). In Russell, this Court found reversible error to exist because the jury was not informed that it could not find ...