White v. State

Decision Date07 November 2011
Docket NumberNo. A11A1300.,A11A1300.
Citation312 Ga.App. 421,11 FCDR 3578,718 S.E.2d 335
PartiesWHITE v. The STATE.
CourtGeorgia Court of Appeals

OPINION TEXT STARTS HERE

Thomas S. Sunderland, for appellant.

Tracy Graham–Lawson, Dist. Atty., Travis Jon Meyer, Asst. Dist. Atty., for appellee.

MILLER, Presiding Judge.

Following a jury trial, Kelvin White, Jr., was convicted of voluntary manslaughter (OCGA § 16–5–2(a)), two counts of aggravated assault (OCGA § 16–5–21(a)(2)), two counts of possession of a firearm during the commission of a crime (OCGA § 16–11–106(b)(1)), one count of carrying a concealed weapon (OCGA § 16–11–126(b)), and one count of possession of a firearm by a convicted felon (OCGA § 16–11–131(b)). White moved for a new trial, but the trial court denied his motion. On appeal, White contends that (1) the evidence was insufficient to sustain his conviction; (2) the trial court gave an improper charge on the issue of knowledge; and (3) his trial counsel was ineffective in several respects. We discern no error and affirm.

On appeal from a criminal conviction, we view the evidence in the light most favorable to the verdict, and the defendant no longer enjoys a presumption of innocence. We do not weigh the evidence or resolve issues of witness credibility, but merely determine whether the evidence was sufficient to find the defendant guilty beyond a reasonable doubt.

(Citations and punctuation omitted.) Fogerty v. State, 304 Ga.App. 546(1), 696 S.E.2d 496 (2010).

So viewed, the trial evidence shows that, on April 30, 2008, White and his girlfriend visited the Clayton County residence belonging to the girlfriend's mother. When White and his girlfriend arrived at the residence, they were greeted by one of the victims, Terrell Favors.

While White's girlfriend went to a different part of the house to talk to her mother, White asked Terrell to talk with him outside. Upon going outside, White and Terrell engaged in a heated argument concerning the relationship between White and his girlfriend.

During the argument, Terrell's brother, Tybias Favors, arrived at the house with his girlfriend. According to Terrell, Tybias observed the argument, but did not get involved. Terrell's argument with White became more “heated” with the two men standing “face-to-face.” Terrell went inside the house to tell White's girlfriend about the argument and to get her to intervene and “straighten [it] out.”

When Terrell returned outside, he and White continued the argument and were preparing for a physical altercation. White then pulled out a gun and shot Terrell and Tybias. When Tybias dropped to the ground, White put a gun to his head and threatened to kill him. White subsequently fled, and Tybias ultimately died from the gunshot wound.

In his defense, White claimed that Terrell instigated the argument and threatened to kill him. During the argument, Terrell allegedly said that he had “something for [White] and ran inside the residence. According to White, when he and Terrell were arguing, Tybias was “creeping behind him” and yelling at him. White testified that when Terrell went inside the residence, he asked Tybias to move his car so that White could leave, but Tybias refused.

White also testified that he tried to convince Terrell not to fight, but that Terrell and Tybias “rushed” him. White stated that Terrell appeared to reach under his shirt to grab a pistol. White testified that he feared for his life because he believed that Terrell had a weapon based upon seeing a “print” or bulge under Terrell's shirt and Terrell's statement that he “had something for him.” White conceded that he did not actually see Terrell or Tybias with a firearm, but claimed that, as he was leaving, he saw Terrell give Tybias's girlfriend a black object that she placed into a car. Law enforcement officers conducted a search of the residence, but no firearms were found at the scene.

White was subsequently arrested, charged, and convicted of the criminal offenses related to the incident.

1. White contends that the evidence was insufficient to sustain his conviction. We disagree. Based on the evidence set forth above, the jury was authorized to find White guilty of each of the offenses. See OCGA §§ 16–5–2(a); 16–5–21(a)(2); 16–11–106(b)(1); 16–11–126(b); 16–11–131(b).

(a) White nevertheless argues that the State's evidence failed to prove venue. His argument is without merit.

“Generally, a criminal action must be tried in the county in which the crime was committed, and the State may establish venue by whatever means of proof are available to it, including direct and circumstantial evidence.” (Citations and footnote omitted.) Scott v. State, 302 Ga.App. 111, 112(1)(a), 690 S.E.2d 242 (2010). Here, the witness testimony showed that Tybias was shot at a residence located in Clayton County. White's claim that the State failed to show that certain cities were included in Clayton County is inapposite. To establish venue, the State needed only to show that the events occurred within the county, which it did.

(b) White also contends that his voluntary manslaughter conviction was against the weight and sufficiency of the evidence. In particular, he contends that his conviction was precluded since the evidence showed that he acted in self-defense. We disagree.

OCGA § 5–5–21 specifically empowers trial courts with the authority to weigh the evidence. It provides that a trial judge, in the exercise of a sound discretion, may grant a new trial in cases where the verdict may be decidedly and strongly against the weight of the evidence even though there may appear to be some slight evidence in favor of the finding. On a motion for new trial alleging this ground, the court sits as a “thirteenth juror.” The motion is addressed to the discretion of the court, which should be exercised with caution, and the power to grant a new trial on this ground should be invoked only in exceptional cases in which the evidence preponderates heavily against the verdict.

(Citations and punctuation omitted.) Rutland v. State, 296 Ga.App. 471, 476(3), 675 S.E.2d 506 (2009).

The trial court considered White's arguments in the context of OCGA § 5–5–21, but ultimately decided this claim against him. We discern no error.

“When a defendant presents sufficient evidence raising a claim of self-defense, the State must disprove that defense beyond a reasonable doubt.” (Citations omitted.) Richards v. State, 288 Ga.App. 814, 655 S.E.2d 690 (2007).

Under OCGA § 16–5–2(a),

[a] person commits the offense of voluntary manslaughter when he causes the death of another human being under circumstances which would otherwise be murder and if he acts solely as the result of a sudden, violent, and irresistible passion resulting from serious provocation sufficient to excite such passion in a reasonable person[.]

“Evidence of voluntary manslaughter may be found in a situation which arouses the sudden passion in the person killing so that, rather than defending himself, he wilfully kills the attacker, albeit without malice aforethought, when it was not necessary for him to do so in order to protect himself.” (Citations and punctuation omitted.) Crane v. State, 300 Ga.App. 450, 452(1), 685 S.E.2d 314 (2009). Furthermore, “heated arguments, physical beatings and fear of some danger present sufficient provocation for a voluntary manslaughter conviction.” (Citations and punctuation omitted.) Id.

Here, the evidence establishing that White, Terrell, and Tybias had engaged in a heated argument, which escalated to preparations for a mutual, physical altercation, was sufficient to sustain the voluntary manslaughter conviction. In particular, the evidence shows that White and Terrell were “face-to-face” and ready to fight. Given this heated exchange and White's belief that he was in serious danger based on Terrell's statement that he “had something for [White] and Tybias's lurking presence, there was sufficient provocation to excite the passion necessary for voluntary manslaughter. Crane, supra, 300 Ga.App. at 452, 685 S.E.2d 314.

Notwithstanding White's argument to the contrary, his self-defense claim did not preclude his conviction. Even if White was authorized to use some force to defend himself, he could not use excessive force. OCGA § 16–3–21(a) provides:

A person is justified in threatening or using force against another when and to the extent that he or she reasonably believes that such threat or force is necessary to defend himself or herself or a third person against such other's imminent use of unlawful force; however, except as provided in Code Section 16–3–23, a person is justified in using force which is intended or likely to cause death or great bodily harm only if he or she reasonably believes that such force is necessary to prevent death or great bodily injury to himself or herself or a third person or to prevent the commission of a forcible felony.

The jury was authorized to reject White's claim of self-defense and conclude that he “was so influenced and excited that he reacted passionately rather than simply to defend himself” when he shot an unarmed Tybias. (Punctuation and footnote omitted.) Williams v. State, 245 Ga.App. 670, 671(1), 538 S.E.2d 544 (2000); see also Roper v. State, 281 Ga. 878, 880(1), 644 S.E.2d 120 (2007) (witness credibility is for the jury to decide, as is the question of justification; therefore the jury is free to reject a claim that defendant acted in self-defense); Thomas v. State, 296 Ga.App. 231, 233(1), 674 S.E.2d 96 (2009) (evidence showing that the victim was unarmed at the time of the incident authorized the jury to conclude beyond a reasonable doubt that defendant was not justified in using deadly force).

Since there was sufficient evidence of provocation at the time of White's shooting of an unarmed individual, the court did not err in refusing to grant White's motion for a new trial on this basis. Rutland, supra, 296 Ga.App. at 476(3), 675 S.E.2d 506.

2. White further argues that the trial...

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