Williams v. State, 37950
| Decision Date | 10 February 1982 |
| Docket Number | No. 37950,37950 |
| Citation | 287 S.E.2d 31,249 Ga. 6 |
| Parties | Alvin WILLIAMS v. STATE of Georgia. |
| Court | Georgia Supreme Court |
E. Cameron Hickman, Joseph E. Vallotton, Langdale, Vallotton & Hickman, Valdosta, for Alvin Williams.
H. Lamar Cole, Dist. Atty., Valdosta, Michael J. Bowers, Atty. Gen., for the State.
Appellant, Alvin Williams, was convicted of murder and received a life sentence. He appeals, raising eight enumerations of error. We affirm.
The evidence most favorable to the state can be summarized as follows: Appellant and a friend, Dafford Madison, were shooting dice outside the Fifth Inn Lounge in Lowndes County with the victim, Lewis Carter, Jr. Appellant and Carter got into an argument over money and Carter walked off. Madison told appellant that Carter was "going to get something" and gave appellant a pistol, which appellant placed in his back pocket. Appellant hurried after Carter, who stopped and turned around. Appellant reached in his back pocket for the gun. It went off while still in his pocket. Appellant got the gun out of his back pocket, pointed it at Carter's head and fired. Carter fell to the ground and lay there, not moving. Appellant stepped toward Carter and shot him twice more in the head. Appellant fled and was arrested two months later in Virginia.
1. In his first enumeration of error, appellant contends the trial court erred in not allowing him to ask certain questions of prospective jurors during voir dire. We find no error.
Three questions are involved here. The state objected to the form of the first one. The trial court sustained the objection but allowed appellant to ask substantially the same question in a slightly different form. The court did not abuse its discretion in so doing. Waters v. State, 248 Ga. 355(3), 283 S.E.2d 238 (1981).
The second question was, "Do you think that places such as the Fifth Inn should be closed up and abolished?" The state objected to this question's relevancy. "The language of Code Ann. § 59-705 is broad, but the trial judge still retains the discretion to limit the examination to questions dealing directly with the specific case and to prohibit general questions such as the one asked here." Hill v. State, 221 Ga. 65, 69(8), 142 S.E.2d 909 (1965).
The third question was, "If you were not personally agreeable with certain laws, would you attach any less importance to that law than you would to laws that you agree with?" The trial court did not err in refusing to allow this question. While a party is entitled to ask whether or not a juror would be able to follow the court's instructions, the court need not allow questions which ask jurors to weigh the relative merits of various laws. Lundy v. State, 130 Ga.App. 171(2a), 202 S.E.2d 536 (1973).
2. Appellant contends the trial court erred in refusing to allow him to ask a state's witness, Herbert Perry, about the victim's tendency to get a pistol during crap games.
Proof of a victim's violent character becomes admissible "when it is shown prima facie that the deceased was the assailant, that the accused had been assailed, and that the accused was honestly seeking to defend himself." Black v. State, 230 Ga. 614(3), 198 S.E.2d 314 (1973). Such general character for violence cannot be established by proof of prior specific acts of violence, 1 but a defendant should be allowed to offer evidence that the victim had a reputation for a particular type of violence, for the reasons set out in Henderson v. State, 234 Ga. 827, 218 S.E.2d 612 (1975). Appellant contends that a tendency to get a pistol during crap games is a particular type of violence contemplated by Henderson. We need not answer that contention.
The trial court's ruling of which appellant complains occurred during the presentation of the state's case in chief, before appellant had testified and before a prima facie case of self-defense had been made. After appellant testified, he was allowed to recall Perry and ask him about the victim's reputation for getting a gun. Since the trial court did not, in fact, refuse to allow appellant to ask his question relating to the deceased's reputation, this enumeration of error is meritless.
3. Appellant contends the trial court erred in refusing to allow him to impeach the same witness, Herbert Perry, by use of a prior contradictory statement. See Code Ann. § 38-1803.
When the trial court initially refused to allow appellant to ask Perry about the victim's reputation for getting a gun, appellant attempted to show that Perry had testified during the committal hearing that he had heard the victim "would go and get his weapon." Since this testimony did not contradict anything to which Perry had previously testified and since any testimony as to the victim's reputation was at that time premature, the court did not err in refusing to allow the question. We note that when Perry was recalled after appellant testified, Perry was again questioned about his committal hearing testimony and the question and answer were allowed. This enumeration of error is patently meritless.
4. In his fourth enumeration of error, appellant contends the trial court erred in refusing to give his requested charges on both felony and misdemeanor grade involuntary manslaughter. Appellant testified he was trying to shoot over the victim's head to scare him but the gun must have come too low and hit him. Appellant claimed he was in a daze and did not remember shooting the victim two more times. This testimony, he claims, injected both theories of involuntary manslaughter and therefore the court should have charged them. We disagree.
Code Ann. § 26-1103(a) provides: "A person commits involuntary manslaughter in the commission of an unlawful act when he causes the death of another human being without any intention to do so, by the commission of an unlawful act other than a felony." Appellant admitted deliberately firing his gun in the direction of the victim to scare him. Using a deadly weapon to commit an act which places another in reasonable apprehension of immediately receiving a violent injury amounts to an aggravated assault, absent justification. Code Ann. §§ 26-1301, 26-1302, 26-901. The act testified to by appellant was either justified as an act of self-defense or constituted a felony. 2 In either event, death was not caused by an unlawful act other than a felony and the trial court correctly refused to charge the theory of involuntary manslaughter contained in Code Ann. § 26-1103(a).
Code Ann. § 26-1103(b) provides: "A person commits involuntary manslaughter in the commission of a lawful act in an unlawful manner when he causes the death of another human being, without any intention to do so, by the commission of a lawful act in an unlawful manner likely to cause death or great bodily harm." Appellant contends this section is applicable because the jury could have found that he was acting in self-defense (the lawful act) but used excessive force (the unlawful manner).
There is no evidence in this case that the gun accidentally discharged. Thus, the applicability of Code Ann. § 26-1103(b) is controlled by Crawford v. State, 245 Ga. 89, 263 S.E.2d 131 (1980), where this court held: "A person who causes the death of another human being by the use of a gun allegedly in self-defense will not be heard to assert that although he or she used excessive force, death was not intended and the act was lawful." Id. at 94, 263 S.E.2d 131. The trial court did not err in refusing to charge the law as to misdemeanor grade involuntary manslaughter.
5. Upon request by the jury, the court recharged on murder and voluntary manslaughter. Appellant claims the jury also asked to be recharged on the principles of self-defense and justification and the trial court erred in failing to do so.
The relevant portions of the transcript show the following: After deliberating for awhile, the jury returned to ask the court to explain to them again what the possible verdicts were. The court told them they could find three possible verdicts: murder, voluntary manslaughter, or not...
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