*1 Benjamin Welch, III, Brittain, & Studdard W Studdard appellees. for
S98A0849. BOWDEN v. THE STATE.
Hines, A jury Jerry Larry found murder, of malice murder, counts of felony and two possession by counts a convicted felon in connection with the fatal shooting Willie James convictions, Walker.1 Bowden challenging the suf- ficiency the denial of his pretrial motion to bifurcate of jury and the lack on justification defense of and the admission of evidence merit, convictions. The are without and we affirm. evidence construed favor of the on verdicts showed that 22,1996, the afternoon April Willie Walker at James was Bowden’s Lassiter, home Towanda visiting Bowden’s tenant.
wife allowed a Lassiter to rent room on the condition that Lassiter have men or anyone over visit the house while Bowden was there. Bowden arrived home while Lassiter and Walker were having sex door, Lassiter’s banged bedroom. Bowden on Lassiter’s demanding they bedroom; out of open come Bowden tried to the locked door. Lassiter and Walker quickly dressed and Lassiter let Bowden in. Bowden a had .357 at Magnum revolver his hand aimed it Walker. tried by Lassiter to deter Bowden hand raising her and she began to struggle. Lassiter told Walker to leave and room, Walker ran out of the down steps and into the kitchen. Bowden ordered Lassiter let go of his hand and Lassiter complied, thinking that Bowden was going hit her Bowden ran gun. down the steps after Walker with following closely Lassiter behind. 22, Term, April 1996, During August Clayton The crimes on occurred 1996. a County grand jury murder; indicted Bowden for malice while in commission aggravated assault; by murder while in the a a con (a revolver) felon; possession felon; victed of a firearm Taurus convicted (a revolver) special of a firearm Charter Arms .38 a convicted felon. A 30, July 1997, imprison found Bowden of all counts on and he was sentenced to life (b) possibility parole pursuant ment without the § OCGA 17-10-7 for (a years concurrent five incarceration a firearm Charter Arms revolver) special The court found that charge merged malice murder counts stood both by operation pursuant of law to OCGA 16-1-7. motion new trial Bowden’s was filed 29, 1997, 13, August amended on November and denied on November 1997. appeal appeal notice was filed on December and the was docketed in this Court argued orally on March The case was unsuccessfully to unlock the in the kitchen
Walker was immediately Walker who Bowden ran toward dead-bolted door. began to hit Walker. his head. Bowden down and covered crouched stop, pleading had not that Walker screamed for Lassiter away anything. con- a few seconds. Lassiter Bowden backed done tinued put his hands *2 leave Walker alone. Walker to ask Bowden to keys, pleaded car face, held onto his front of his let him Bowden paced go. ground forth, and con- teeth, back and his gun point then shot Walker with the the at Walker. Bowden tinued to fatally wounding Magnum, told him the throat. Bowden got m_f_is dead.” Bowden that Lassiter to call 911 “because operator telephone that he shot Walker. Bow- and told the 911 on the den my up “[Walker] explained here in house with some that was rooming caught house, he I him the that was here and woman [sic] hit, him, then it the the door .... shot at tired to run out my my trying go out, out back He was to out back bullet hit him. door.” police the revolver from Bowden’s recovered weapons had a .38 snub-nosed revolver. Both
residence as well as years, Bowden had shown them to in the Bowden home for been Lassiter. refusing
1. Bowden contends that the charges malice murder and murder while trial of the of bifurcate aggravated the the assault from thereby felon, of a firearm which involve improperly placing However, character into issue. his denying where, case, ás in this the counts did not err charging charge bifurcation the offense are material to the more serious (2) (454 State, of murder. Jones v. SE2d (d) (322 228) (1984). (3) (1995); State, Head v. 253 Ga. 432 SE2d likewise fails in the contention that the trial court 2. Bowden give jury limiting error when it did not committed reversible prior regarding the admission into evidence automobile) underlying (larceny an convictions objected request nor made a for limit- Bowden neither ing placed the time the convictions were in evidence. instructions at (2) (429 512) (1993). State, 263 136 SE2d What Williams v. Ga. jury, explained more, in the court the felonious is nature of ments of the crime of larceny defining of an in the context of the ele- automobile
being a convicted felon in of a fire- jury plain Thus, it was was to consider the felonies arm. determining guilt purpose counts. urges fail that it was reversible error for the court to 3. Bowden jury justification, charge which he claims was his sole request, that, even in the absence of a written defense. It is certain
21 court must on a if jury instruct defendant’s sole defense v. instruction. Tarvestad there is some evidence to such an support (409 513) (1991). State, 261 Ga. 606 SE2d But that not the was here. There to support case was evidence jury justifi- 16-3-20. See Williams under v. cation OCGA Ga. ) (482 (2) (c 288) (1997). The evidence, uncontroverted includ- statements, Bowden’s own ing Bowden shot victim he premises; regardless to leave the youth, victim’s size or the body presence system, there was no hint of drugs a confrontation with Bowden or Bowden was fearful for his own or that safety of others the house.
4. Lastly, sufficiency evidence, asserting witness, Lassiter, that the testimony key the State’s and impeached by But, biased other evidence at trial. it was jury’s witnesses, role to credibility assess resolve con determination flicts and arrive at a facts. v. State, Hodnett 269 Ga. The evi dence sufficient find guilty beyond a rea sonable doubt malice murder and the related crimes for he was convicted. Jackson v. Virginia, 443 U. S. 307 SC *3 LE2d
Judgments All the Justices concur. affirmed. Justice, Chief concurring.
Benham, fully While concur all that is said in majority opinion, I write because I believe it is to the separately important edification of the bench and to note judgment bar court’s is incom- As noted in footnote 1 plete. majority opinion, merged possession charge which the predicate felony for one of the felony counts into the malice murder convic- Thus, tion. Bowden was sentenced for one only 479) In Malcolm v. charges. (1993), felony this Court held that a conviction for a a fel- upon which ony murder conviction is based not mur- merge felony does der conviction when the is conviction Malcolm, account of Instead, conviction malice murder. held in we the proper consideration under those circumstances is whether underlying included felony is as a matter of fact malice murder. The trial court undertook that but was apparently analysis, incorrect its conclusion that merged into charge. evidence adduced at showed possession, arrest, Bowden was still in at the time of his fire- Malcolm, Thus, arm used the murder. fire- as the case arm count for which Bowden was not sentenced was a matter of fact the malice murder for both counts sentenced should have been Car- Hunstein Justice state that Justice I am authorized to ley join in this concurrence. September Decided denied October
Reconsideration appellant. TV, Arnold Emmett J. Hornsby, Attorney, Keller, Verda David B. District Robert E. Attorneys, Baker, Thurbert E.
Andrews-Stroud, District Assistant Attorney Attorney General, General, K. Senior Assistant Paula Attorney appellee. Phillips, General, Jayson Assistant v. ANDERSON. S98A0902. WHARTON Carley, grand jury September indicted Richard Anderson In attorney burglary. Thereafter, the district for three counts negotiated plea bargain, permitted which Ander- defense counsel son to avoid the theft burglary prosecution Under terms of for the plead guilty agreement, to three counts of Anderson would by receiving property burglaries, in stolen in the that had been imposition would recommend return State formally totaling years. Although Anderson was never sentences by taking accusation indicted for the theft court, filed, the trial after him with those offenses was ever pleas conducting hearing, accepted imposed a 15- year pleading for all three offenses. fact that Anderson sentence receiving property to theft acknowledged documented on the face signatures In and his counsel. Anderson petition corpus pro relief. The filed a se for habeas habeas son *4 accepting ruling granted writ, that the trial court erred in by receiving guilty pleas because the crime of theft son’s charged expressly in not a the indictment lesser burglary. also concluded that the offense court habeas court imposing than misdemeanor sentence for each more prop- showing of the there was no value count because erty The Warden of the exceeded $500. grant corpus. from the of habeas writ burgla- alleged that Anderson committed the indictment dwellings by entering to commit a theft intent ries