Calmer v. State
309 Ga. 368
Ga.2020Background
- On Sept. 13, 2014, deputies Michael Norris and Jeffrey Wilson responded in uniform to a 911 call from Tommie McRae reporting that Christopher Calmer had a gun and threatened suicide and wanted police to come so he could be killed.
- The deputies approached the Calmer residence; Norris pushed the front door open while Wilson looked through a window and called out "Chris." Calmer immediately stood and fired, killing Norris and wounding Wilson.
- Calmer had earlier told family he wanted police to be called so he could shoot at them; he also displayed a gun and pills and expressed suicidal intent.
- A Monroe County grand jury indicted Calmer on malice murder, two felony-murder counts, aggravated assault on a peace officer, and related firearm offenses; he was convicted by a jury and sentenced to life without parole for malice murder and additional consecutive terms totaling 80 years.
- At trial Calmer requested jury charges on justification defenses (defense of habitation, resisting an illegal arrest, self-defense/no duty to retreat) and on lesser included offenses (voluntary and involuntary manslaughter); he also sought pretrial immunity under OCGA § 16-3-24.2. The trial court denied those requests and the immunity motion; the Supreme Court of Georgia affirmed.
Issues
| Issue | Calmer's Argument | State's Argument | Held |
|---|---|---|---|
| Failure to give charge on defense of habitation | Deputies entered home; Calmer reasonably believed deadly force justified to prevent unlawful/forcible entry | Deputies were invited/consented to enter by Calmer's mother and were responding to a welfare/suicide call; no evidence of unlawful forcible entry | No error: no slight evidence deputies entered unlawfully, so charge not warranted |
| Failure to give charge on right to resist illegal arrest | Deputies were effectively making an arrest; Calmer had right to resist unlawful arrest | No evidence deputies attempted an arrest; they were first responders on a suicide call | No error: no evidence of attempted or unlawful arrest |
| Failure to give self-defense and no-duty-to-retreat charges | Testimony that officers loudly opened the door and burst in could support belief of imminent deadly harm | Officers were uniformed, announced presence by name, and family had summoned them; other evidence shows Calmer sought police confrontation | Any instructional error harmless: evidence strongly indicates Calmer intended to shoot police and continued firing after killing Norris |
| Failure to charge voluntary and involuntary manslaughter | Alleged provocation from two armed men bursting in warrants voluntary manslaughter charge; alternatively involuntary manslaughter | Evidence shows an intentional shooting, not passionate provocation or lawful act done unlawfully | No error: no slight evidence of passion/provocation for voluntary manslaughter; involuntary manslaughter inapplicable to intentional shooting |
| Denial of pretrial immunity under OCGA § 16-3-24.2 | Calmer was justified in using deadly force in self-defense/defense of habitation and thus entitled to immunity | Evidence at hearing showed deputies were responding to a suicide call, not unlawfully entering or trying to arrest; Calmer was not in reasonable fear | Affirmed: trial court reasonably found Calmer failed to prove entitlement to immunity by preponderance of evidence |
Key Cases Cited
- Jackson v. Virginia, 443 U.S. 307 (standard for sufficiency of the evidence)
- Collins v. State, 308 Ga. 515 (slight evidence suffices to authorize a requested jury instruction)
- Fair v. State, 288 Ga. 244 (deadly-force defense of habitation requires unlawful, forcible entry)
- Clark v. State, 307 Ga. 537 (objective-reasonableness requirement for defense-of-habitation provisions)
- Adams v. State, 288 Ga. 695 (defendant bears burden to produce evidence of affirmative defenses unless state’s evidence raises them)
- Bryson v. Jackson, 299 Ga. 751 (mandatory giving of lesser-included charge when any evidence supports it)
- Bunn v. State, 284 Ga. 410 (burden for pretrial immunity under OCGA § 16-3-24.2 is preponderance of the evidence)
- Johnson v. State, 304 Ga. 610 (review standard for denial of pretrial immunity; view evidence in light most favorable to trial court)
- Arnold v. State, 302 Ga. 129 (immunity analysis—whether defendant reasonably feared for safety and whether officers acted unlawfully)
- Malcolm v. State, 263 Ga. 369 (merger principles for felonies into murder convictions)