Weems v. State

Decision Date02 June 1997
Docket NumberNo. S97A0860,S97A0860
Citation268 Ga. 142,485 S.E.2d 767
Parties, 97 FCDR 1920 WEEMS v. The STATE.
CourtGeorgia Supreme Court

Mark V. Clark, Atlanta, for Glen Weems.

Carl P. Greenberg, Asst. Dist. Atty., Fulton County Dist. Atty's. Office, Atlanta, Patricia Beth Attaway, Asst. Atty. Gen., Dept. of Law, Atlanta, Paula K. Smith, Senior Asst. Atty. Gen., Atlanta, for State.

CARLEY, Justice.

As he drove by in his van, Glen Weems fired shots at a group of people who were standing in front of a residence. The shots killed a 7-year old and wounded a 2-year old, a 10-year old and a 17-year old. A jury found Weems guilty of felony murder and three counts of aggravated assault. In Weems v. State, 262 Ga. 101, 416 S.E.2d 84 (1992), we affirmed the judgments of conviction and sentences entered on the guilty verdicts, but remanded to the trial court for a hearing on Weems' Batson claim. Finding that claim to be meritorious, the trial court granted a new trial. At the retrial, a jury again found Weems guilty of felony murder and three counts of aggravated assault. For the felony murder, the trial court sentenced Weems to life and, for the aggravated assaults, it sentenced him to 15-year terms. After the denial of his motion for new trial, Weems appeals and raises some 72 enumerations of error. 1

1. According to Weems, he was beaten by drug dealers, but escaped and fired the shots only in self-defense after the drug dealers renewed their attack on him. According to the State's evidence, however, Weems was involved in a prior dispute over drugs and subsequently sought revenge by committing the drive-by shootings. The evidence produced by the State was sufficient to authorize a rational trier of fact to find proof of Weems' guilt of the felony murder and aggravated assaults beyond a reasonable doubt. Jackson v. Virginia, 443 U.S. 307, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979); Weems v. State, supra at 101(1), 416 S.E.2d 84.

Weems urges that he nevertheless is entitled to a new trial because of newly discovered evidence. It appears that, after the retrial, Officer Edgar Allen, who participated in the arrest of Weems and testified for the State, was convicted of accepting bribes from drug dealers. This subsequent conviction of Officer Allen is not newly discovered evidence which has any direct bearing on whether Weems' fired in self-defense rather than revenge. Instead, it is a subsequent occurrence which relates solely to the general credibility of Officer Allen's prior testimony. A new trial is not authorized where the only effect of the alleged newly discovered evidence would be to impeach the credibility of a witness. Stroud v. State, 247 Ga. 395, 276 S.E.2d 597 (1981). This is true even though the witness whose credibility would be impeached gave the only testimony on some vital point in the case. Johnson v. State, 196 Ga. 806(1), 27 S.E.2d 749 (1943).

2. Weems urges that prosecutorial misconduct at his first trial bars his retrial on double jeopardy grounds. "[P]rosecutorial misconduct which deprives the defendant of due process of law causes the conviction to be set aside but does not preclude further proceedings against the defendant." Fugitt v. State, 253 Ga. 311, 316, 319 S.E.2d 829 (1984). There is a "narrow exception" where the prosecutorial misconduct was intended to goad the defendant into moving for a mistrial. Fugitt v. State, supra at 315, 319 S.E.2d 829. However, Weems' first trial did not end with the grant of a defense motion for mistrial based upon prosecutorial misconduct. The first trial ended in convictions which were set aside only on the basis of the trial court's determination that it had erred in failing to sustain Weems' Batson motion. "The general rule is that retrial of the defendant is not barred where reversal of the conviction results from trial error rather than evidentiary insufficiency. [Cits.]" Williams v. State, 258 Ga. 305, 311(1), 369 S.E.2d 232 (1988). Because Weems' original convictions were reversed on the basis of trial error, his retrial does not constitute double jeopardy. See generally Daniels v. State, 165 Ga.App. 397, 397-398(1,2), 299 S.E.2d 746 (1983).

3. Several enumerations of error relate to the trial court's refusal to admit expert testimony as to Weems' "catastrophic reaction" to the beating he suffered prior to the shootings. Other than his legal insanity, Weem's mental state at the time of the shootings was irrelevant to his guilt or innocence. Selman v. State, 267 Ga. 198, 200(3), 475 S.E.2d 892 (1996); Tucker v. State, 233 Ga. 107, 209 S.E.2d 646 (1974); Green v. State, 197 Ga.App. 16(1), 397 S.E.2d 590 (1990). There is nothing to suggest that Weems' purported "catastrophic reaction" to the previous beating was probative of his legal insanity at the time of the subsequent shootings. Weems admitted that he intentionally fired shots, but contended that he did so only in self- defense. The excluded expert testimony as to Weems' "catastrophic reaction" to the previous beating was not admissible to illustrate the subsequent justification for Weems' intentional act of driving by and firing into a crowd which included innocent children. Selman v. State, supra at 200(3), 475 S.E.2d 892; McDaniel v. State, 257 Ga. 345, 347(4), 359 S.E.2d 642 (1987); McDonald v. State, 170 Ga.App. 884, 885(2), 318 S.E.2d 749 (1984). Compare Smith v. State, 247 Ga. 612, 277 S.E.2d 678 (1981) (justification predicated upon repeated acts of prior aggression committed against the defendant by the actual victim). Whether, under the circumstances then existing, it was reasonable for Weems to believe that firing his gun was necessary to prevent his death or great bodily injury was not beyond the ken of the average juror. Based upon the circumstances of the drug dealers' alleged renewal of their attack, rather than expert testimony regarding Weems' "catastrophic reaction" to the prior beating, the jury was authorized to determine whether the act of firing into the crowd of people met the "reasonable person" standard. See generally Daniels v. State, 248 Ga. 591, 593(1), 285 S.E.2d 516 (1981).

4. Weems urges that it was error to preclude him from testifying as to his own "catastrophic reaction" to the beating. As discussed in Division 3, Weems' "catastrophic reaction" to the prior beating was irrelevant to his justification defense. Any evidence in that regard would be no less irrelevant simply because it came from Weems, rather than an expert witness. What was relevant was the circumstances of the alleged renewed attack upon Weems which he contended was the justification for the shots he intentionally fired. See Daniels v. State, supra at 592, 285 S.E.2d 516. Weems was not precluded from testifying as to those relevant circumstances.

5. Weems urges that the trial court erred by refusing to take judicial notice of the fact that, on the day in November of 1989 when the shootings occurred, the weather was unusually warm. Courts will generally take judicial notice of a fact of common knowledge that all men of average intelligence are presumed to know and that is certain and indisputable. In the Interest of S.M., 169 Ga.App. 364, 366(1), 312 S.E.2d 829 (1983). Because of the fluctuating nature of the weather, however, the weather on any particular day in the past is not the type of fact normally subject to judicial notice. See generally Read v. Benedict, 200 Ga.App. 4, 8(3), 406 S.E.2d 488 (1991). Assuming that the weather conditions on the date of the shootings had any relevancy to Weems' guilt or innocence, he should have produced evidence in that regard, rather than requesting that the trial court take judicial notice thereof.

6. Over the objection that he was "too young," one of the aggravated assault victims was called as a witness for the State. This witness, who was 2-years old at the time of the crime and 6-years old at the time of retrial, testified that he would "go to jail" and "get in trouble" if he told a lie. Accordingly, there was no abuse of discretion in the trial court's determination that the victim was competent to testify. Gallagher v. State, 196 Ga.App. 153, 395 S.E.2d 358 (1990). Moreover, the entirety of the witness' testimony on direct consisted of his statement that he remembered being...

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