Williams v. State

• Decision Date: 10 March 1997
• Docket Number: No. S96A1980,S96A1980
• Citation: 482 S.E.2d 288,267 Ga. 771
• Parties: , 97 FCDR 815 WILLIAMS v. The STATE.
• Court: Georgia Supreme Court

Page 288

482 S.E.2d 288

267 Ga. 771, 97 FCDR 815

WILLIAMS v. The STATE.

No. S96A1980.

Supreme Court of Georgia.

March 10, 1997.

Reconsideration Denied April 3, 1997.

Douglas R.X. Padgett, Atlanta, for Ronald Vashon Williams.

Michael J. Bowers, Atty. Gen., Christopher S. Brasher, Asst. Atty. Gen., Lewis R. Slaton, Dist. Atty., John Clayton Culp, Asst. Dist. Atty., Department of Law, Atlanta, for State.

THOMPSON, Justice.

Ronald Vashon Williams was convicted by a jury of felony murder in connection with the shooting death of Rufus Gordon Smith. ¹ Following the denial of his motion for new trial, Williams appeals from the judgment of conviction and sentence entered thereon, primarily taking issue with the jury instructions and asserting that he was denied effective assistance of trial counsel. Finding no reversible error, we affirm.

At approximately 3:00 a.m., Williams and co-defendant Dante Weems left their residence at Crescent Hills Apartments armed with a .32 caliber chrome pistol with a black handle, belonging to Weems. At 5:45 a.m., a resident of the apartments observed a group of young men running across the street from the apartments where they appeared to be engaged in a fight. Although it was dark and the witness could not identify their faces, she later described the hair style of one of the perpetrators to her 18-year-old son, who told her that the description fit Weems. At about the same time, another neighborhood resident observed a group of four young men across the street from the Crescent Hills Apartments, beating the victim with their feet and fists and knocking him to the ground as he called for help. That witness saw one of the assailants draw a "shiny" gun, and then heard a shot fired. After observing the four men run into the Crescent Hills Apartments complex, the witness flagged down a police patrol car. Williams and Weems were seen sitting outside the apartment complex across from the crime scene during the police investigation. The victim was an elderly, homeless man who was taking shelter in a shed behind the dry cleaning establishment where he was killed. He died as a result of a single gunshot fired into his neck at a range of about two feet, while he was face down on the ground.

Later in the day of the shooting, Williams disclosed to a friend, "I think we killed this man." Weems bragged to two acquaintances that he shot the victim and that Williams participated by knocking the victim to the ground and going through his pockets.

When police received information that Weems attempted to sell a .32 caliber pistol believed to be the murder weapon, and that Weems, Williams, and other identified suspects were staying in an apartment at the Crescent Hills complex, a search warrant was executed at that location. Pursuant to the warrant, the officers found and seized a .32 caliber pistol used in the crime and another 9 millimeter pistol. Williams, Weems, and three other individuals in the apartment were taken into custody.

After being advised of his Miranda rights, Williams executed a waiver of counsel form and made a statement to police, admitting: (1) his presence at the scene; (2) his companions "rushed" the victim and began beating him; (3) he (Williams) "was trying to get a lick or two in"; (4) he and the others had gone through the victim's pockets looking for money but found none; and (5) one of the others shot the victim, whereupon they all ran back across the street to the apartments. Williams described the weapon as chrome with black tape wrapped around the handle. He was arrested and tried jointly with Weems and another of their companions.

1. The evidence was sufficient under the standard of Jackson v. Virginia, 443 U.S. 307, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979), to find Williams guilty of felony murder with the underlying felony of aggravated assault with intent to rob.

2. Williams asserts several challenges to the jury instructions.

(a) In a lengthy charge distinguishing between malice and felony murder, the court instructed: "The primary difference between the offense of malice murder and felony murder is that felony murder does not require malice or the intent to kill." This was followed by an erroneous statement of law that, "felony murder does not, however, require that the defendant possess the requisite criminal intent to commit the underlying felony." See Holliman v. State, 257 Ga. 209, 210(1), 356 S.E.2d 886 (1987) (felony murder does require that defendant possess requisite intent to commit the underlying felony). "However, an erroneous charge does not warrant a reversal unless it was harmful and, in determining harm, the entirety of the jury instructions must be considered." Foote v. State, 265 Ga. 58, 59(2), 455 S.E.2d 579 (1995). And " '[a] mere verbal inaccuracy in a charge, which results from a palpable "slip of the tongue," and clearly could not have misled or confused the jury' is not reversible error." Gober v. State, 247 Ga. 652, 655(3), 278 S.E.2d 386 (1981), quoting Siegel v. State, 206 Ga. 252, 254(2), 56 S.E.2d 512 (1949).

The charge as a whole correctly instructed the jury that "intent is an essential element of any criminal case and must be proved by the state beyond a reasonable doubt"; that criminal intent means "to intend to commit the act which is prohibited by statute"; and that the defendant cannot be found guilty "unless you find beyond a reasonable doubt that every element of the offense [as] defined by these instructions was committed." As to the offense of aggravated assault as the underlying felony for felony murder, the court defined an assault, and then charged: "A person commits the offense of aggravated assault when that person assaults another with the intent to rob or with a deadly weapon." In instructing on the intent necessary to commit the underlying felony of aggravated assault, the court correctly charged that it is "necessary that the evidence show beyond a reasonable doubt an intention to commit injury on another person coupled with the apparent ability to commit that injury...." In addition, the court properly instructed the jury on the state's burden of proof, and extensively informed the jury that in order to return a verdict of guilty of any charged offense each element of the crime must be proven beyond a reasonable doubt.

In the present case, the erroneous instruction was corrected on several occasions as evidenced by the remainder of the charge. Compare Chamberlain v. State, 216 Ga.App. 207(2), 453 S.E.2d 793 (1995) (where the erroneous charge on reasonable doubt had "a different purpose from the parts of the charge on reasonable doubt that were correctly given...."). We are satisfied that the charge as a whole adequately and fairly conveyed the requirement that intent was necessary to commit the underlying felony. Accordingly, we hold that the erroneous statement of law was simply a misstatement or "slip of the tongue," which does not demand reversal. Whitt v. State, 257 Ga. 8(3), 354 S.E.2d 116 (1987); Holliman, supra at (1), 356 S.E.2d 886; Gober, supra at (3), 278 S.E.2d 386.

(b) After instructing the jury on the options of malice murder or felony murder with either aggravated assault or robbery by force as an underlying felony, the trial judge went on to charge the lesser offenses of simple battery and simple assault. Williams asserts that the court erred in failing to instruct the jury that these lesser offenses are misdemeanors, which cannot form the basis for a felony murder conviction. The judge clearly instructed the jury which felony offenses could support a felony murder conviction. This was reiterated in a re-charge in response to the jury's inquiry concerning "what other guilty charges are there?" The court again charged all the available alternatives, including the lesser offenses of assault and battery. There was no error in failing to specify that these were misdemeanor grade offenses. Taken as a whole, the charge substantially presented the options in a way not likely to confuse the jury.

(c) Williams asserts that the court erred in failing to instruct the jury on defense of others as justification for Williams' striking the victim, despite the absence of a written request. While the trial court must charge the jury on a defendant's sole defense, even in the absence of a written request, if there is some evidence to support the charge, Tarvestad v. State, 261 Ga. 605, 409 S.E.2d 513 (1991), we find absolutely no evidence in the present case to authorize a charge on the defense of others under OCGA § 16-3-21(a), or the law of justification under OCGA § 16-3-20.

(d) The court did not err in failing to instruct on voluntary manslaughter, in the absence of a request. Gadson v. State, 264 Ga. 280(2), 444 S.E.2d 305 (1994); Comer v. State, 247 Ga. 167, 275 S.E.2d 309 (1981).

(e) The court properly and adequately charged the law pertaining to consideration of statements made by Williams or a co-defendant, in conformity with the Council of Superior Court Judges of Georgia, Suggested Pattern Jury Instructions, Vol II, Criminal Cases, pp. 29-33 (2d ed. 1991). See Sands v. State, 262 Ga. 367(1), 418 S.E.2d 55 (1992).

3. Williams asserts that the court erred in failing to grant a new trial based on ineffective assistance of counsel.

Claims of ineffective assistance of counsel under the Sixth Amendment are evaluated under the two-pronged test set out in Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984): The defendant must show that counsel's performance was deficient and that the deficient performance prejudiced him, depriving him of a fair trial. Smith v. Francis, 253 Ga. 782, 783, 325 S.E.2d 362 (1985).

Williams asserts that trial counsel was ineffective because he failed to object to the admissibility of his custodial statement and failed to challenge the reliability of the affidavit underlying the search warrant. This claim is belied by the record, which...