Woods v. State
| Decision Date | 09 February 1998 |
| Docket Number | No. S97A1502,S97A1502 |
| Parties | , 98 FCDR 475 WOODS v. The STATE. |
| Court | Georgia Supreme Court |
Davis Cohen, Savannah, for Donald Wayne Woods.
Christine Sieger Barker, Asst. Dist. Atty., Savannah, Deborah Lynn Gale, Asst. Atty. Gen., Paula K. Smith, Senior Asst. Atty. Gen., Department of Law, Atlanta, for the State.
Timothy "Joe" McNeal was killed by a gunshot wound to his head, and Walter Golphin suffered four gunshot wounds to the right side of his head, his right shoulder, and his right arm when the two men were shot as they sat in their car on a Chatham County residential street. Appellant was convicted of felony murder, aggravated assault, aggravated battery, armed robbery, possession of a firearm in the commission of a felony, and possession of a firearm by a convicted felon in connection with the shootings. 1
1. Two men were seen fleeing the shooting site in a white pickup truck immediately after the shots were fired. Police investigators found a white truck with bloodstains which matched the blood of McNeal, and traced its ownership to appellant's co-indictee, Frank Hodges. A friend of Hodges testified that Hodges and appellant had come to her home around 10 p.m. the night of the shooting, and Hodges had called McNeal seeking to purchase $300 worth of crack cocaine, an unusually large amount for Hodges to seek from McNeal. The witness stated that appellant was carrying a large silver gun in the waistband of his pants when the two men left together. Within an hour of their departure, Hodges called the witness, who joined Hodges at his home and smoked crack cocaine provided by Hodges. The witness testified that Hodges told her that he had obtained the crack cocaine from McNeal. Hodges, who was tried separately prior to appellant's trial, did not testify at appellant's trial, but appellant testified that he believed Hodges had obtained cocaine the night of the shooting because Hodges had cocaine in his hand when the duo returned to Hodges' house after the shooting.
The surviving shooting victim, Walter Golphin, testified that he was an auto mechanic who had been asked by McNeal to ride with him in McNeal's car to ascertain the source of a rattling noise in the car. While Golphin was driving McNeal's car, McNeal's beeper went off and McNeal explained he had to go to a certain place to pick up money from a man in a white truck. Golphin drove McNeal to the designated site, where a white pickup truck flashed its lights as McNeal's car approached. Golphin drove past the parked truck, turned around, and pulled alongside the other vehicle. Hodges left the driver's seat of the pickup truck, walked to the passenger side of McNeal's car, and talked with McNeal. Hodges then called to Woods who left the pickup truck, conferred briefly with Hodges, and went to the passenger side of the car with Hodges. From this vantage point, Woods said, "I guess this is it," and fired multiple shots into McNeal's car, killing McNeal and injuring Golphin. Police reported that McNeal was found with $400 in one pocket, and $148 in another pocket. Golphin testified that his wounds had rendered his right arm useless immediately after the shooting and that his hand remained numb, making it impossible for him to write or continue his work as an auto mechanic.
In his defense, Woods testified that he fired his weapon after Golphin pointed a gun at him and said, Investigators found a gun under the driver's seat of McNeal's car, but Golphin denied handling the weapon or making the threatening statement, and no fingerprints were found on the weapon.
The evidence was sufficient to authorize a rational trier of fact to conclude that appellant was guilty beyond a reasonable doubt of felony murder, aggravated assault, aggravated battery, and the weapon possession charges. Jackson v. Virginia, 443 U.S. 307, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979).
2. At issue in appellant's first enumerated error is whether he was entitled to a directed verdict of acquittal on the charge that he took possession of the crack cocaine from McNeal by use of an offensive weapon. An appellate court reviewing a trial court's denial of a motion for directed verdict of acquittal applies the "sufficiency of the evidence" test of Jackson v. Virginia, supra, 443 U.S. 307, 99 S.Ct. 2781, 61 L.Ed.2d 560. Humphrey v. State, 252 Ga. 525(1), 314 S.E.2d 436 (1984). See also Perry v. State, 222 Ga.App. 445, 446, 474 S.E.2d 199 (1996).
Contrary to appellant's assertion, contraband can be the object of armed robbery. Holcomb v. State, 268 Ga. 100(5), 485 S.E.2d 192 (1997). The issue before us is whether there was sufficient evidence from which the jury could determine that the cocaine Hodges possessed after the shooting came from McNeal, and was obtained from McNeal by use of an offensive weapon. Appellant's testimony that Hodges had cocaine upon their return to Hodges' home after the shooting is sufficient to support the conclusion that Hodges had obtained the cocaine from McNeal, so we turn our attention to appellant's contention that there is not sufficient evidence that the cocaine was obtained by use of the offensive weapon since the transfer of possession of the cocaine took place before appellant's weapon came into play. See Hicks v. State, 232 Ga. 393, 403, 207 S.E.2d 30 (1974). See also Miles v. State, 261 Ga. 232(1b), 403 S.E.2d 794 (1991) (where evidence failed to establish whether defendant took the victim's property and then killed the victim, or killed the victim and then took the victim's property, the defendant's armed robbery conviction must be reversed).
Appellant's contention misses the mark because it is based on the assumption that Hodges' custody of the cocaine constituted legal possession. However, Hodges was given custody of the cocaine by McNeal upon the condition that its equivalent in value be returned immediately to McNeal. Consequently, Hodges' custody of the contraband did not ripen into legal possession until the condition of payment was fulfilled, and McNeal retained constructive possession and title to the property until payment was received. Grant v. State, 125 Ga. 259(1), 54 S.E. 191 (1906). Appellant's act of mortally wounding McNeal before payment was made was the force that caused McNeal to part with the possession of his property. Cantrell v. State, 184 Ga.App. 384(1), 361 S.E.2d 689 (1987); Rivers v. State, 46 Ga.App. 778(4), 169 S.E. 260 (1933). Use of an offensive weapon to inflict that injury made appellant's crime armed robbery (OCGA § 16-8-41(a)), and the trial court did not err when it denied the motion for directed verdict of acquittal.
3. During cross-examination of Golphin, appellant's counsel attempted to refresh Golphin's recollection by using a report prepared by an officer who had interviewed Golphin. Counsel wished to refresh Golphin's recollection in order to impeach a portion of Golphin's trial testimony which was contrary to the officer's summary of his conversation with Golphin. Appellant contends the trial court deprived him of an effective cross-examination of Golphin when the trial court refused to permit appellant to use the officer's report to refresh Golphin's recollection.
OCGA § 24-9-69 permits a witness to "refresh and assist his memory by the use of any written instrument or memorandum ... [,]" and does not require the written document so used to have been prepared by the witness, so long as the witness testifies from personal recollection. Ussery v. State, 195 Ga.App. 394(3), 393 S.E.2d 522 (1990). Accordingly, it was error for the trial court to refuse to allow the witness to...
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