Gresham v. State
289 Ga. 103
| Ga. | 2011Background
- appellant Antonio Gresham killed his wife, Carol Gresham, after an argument in Clayton County; the crime occurred in Clayton County and trial was held there.
- jury convicted Gresham of malice murder, felony murder, two counts of aggravated assault, and weapon possession during a crime; sentencing followed.
- Gresham challenged venue proof, arguing Clayton County was not shown to be in Georgia.
- trial court refused to give a voluntary manslaughter instruction based on his testimony of provocation; court held words alone insufficient provocation.
- the court vacated the felony-murder conviction designated as the underlying felony and remanded to address merger with malice murder; overall judgment affirmed in part and vacated in part.
- NAHMIAS, J., concurred specially on the plain error review issue and joined the rest of the opinion.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Venue proof for Clayton County | Gresham argues venue was not proven | State proves crime occurred in Clayton County and court; Georgia county is Clayton | Venue proven; crime occurred in Clayton County, Georgia |
| Voluntary manslaughter instruction | Evidence supported a manslaughter charge | Words alone insufficient provocation | Court did not err in not giving the charge |
| Merger of aggravated assault with malice murder | Aggravated assault should merge with malice murder | No merger issues since sentences reflect malice murder | Agg. assault conviction set aside due to merger; malice murder stands |
| Plain error review on jury charges | Appellate review should apply plain error | No plain error found | Majority declines plain error review for this issue |
| Ineffective assistance of counsel | Counsel failed to challenge counts and investigate | Counsel experienced; no prejudice shown | No merit; not shown that outcomes would differ |
Key Cases Cited
- Mitchum v. State, 11 Ga. 615 (1852) (proof of the county where crime occurred suffices for venue)
- Jackson v. Virginia, 443 U.S. 307 (1979) (sufficiency standard for guilty verdicts)
- Malcolm v. State, 263 Ga. 369 (1993) (felony merger rule for overlapping elements)
- Montes v. State, 262 Ga. 473 (1992) (merger and overlap principles)
- Paul v. State, 274 Ga. 601 (2001) (provocation requirement for voluntary manslaughter)
- Collier v. State, 288 Ga. 756 (2011) (plain error review and jury-charge issues; concurrence discusses standard)
- Lacey v. State, 288 Ga. 341 (2010) (plain error review considerations on appeal)