A jury convicted Tyrell Campbell of malice murder and other felonies in connection with the shooting death of Gary Paul Francis.
1. The evidence presented at trial shows that the 24-year-old Campbell lived briefly with Francis and his girlfriend, Ykeme Smith, while attending college in October 2005. Smith asked Campbell to move out of their house after he dumped cigar ashes on food in a take-out container and failed to clean up after his dog. On November 3, 2005, Francis and Smith confronted Campbell in the early evening while he was visiting at a neighbor’s house and accused him of stealing Francis’s clothes. One of them had a pipe bender used in plumbing, and they were “cussing,” pushing, and shoving Campbell. When the fight ended, Francis and Smith walked back to their house where Francis placed the pipe in their bedroom and put on a shirt. Campbell drove a friend home and came back to the neighbor’s house approximately 20 minutes later. He was standing on the porch with George Parks when Francis and Smith walked past. They were calling and threatening Campbell from the sidewalk, and Smith still
2. Campbell contends that the trial court erred in refusing to instruct the jury on voluntary manslaughter as a lesser included offense of malice murder. In its order denying Campbell’s motion for a new trial, the trial court found that Campbell was not entitled to the instruction on voluntary manslaughter because he relied on an alibi defense and the evidence did not support the giving of the charge.
A person commits voluntary manslaughter when he causes the death of another person under circumstances that would otherwise be murder and “acts solely as the result of a sudden, violent, and irresistible passion resulting from serious provocation sufficient to excite such passion in a reasonable person.” OCGA § 16-5-2 (a). The fact that a defendant relies on an alibi defense does not automatically prohibit a charge on voluntary manslaughter. Cf. Washington v. State,
In this case, the evidence presented at trial did not warrant a jury instruction on voluntary manslaughter. The initial confrontation at the neighbor’s house ended when Francis and Smith returned to their house and Campbell left in his car to take a friend home. Shortly after returning, Campbell was standing on the neighbor’s porch when Francis and Smith threatened him from the sidewalk. They continued walking down the street to the store, and Campbell again left in his car, driving in the opposite direction from them. As Francis and Smith walked around the corner, Campbell drove up slowly beside them, and they argued. He either drove past them and then backed up or drove off and came back around the corner before pulling up beside them a second time. Francis approached the car alone and was talking with Campbell when Campbell pulled out a gun and shot Francis. Contrary to Campbell’s description of events, there is no evidence that Francis was armed with the pipe when he approached Campbell’s car or exchanged words with him immediately prior to the shooting. Because there was no serious provocation that would elicit a violent and irresistible passion in a reasonable person, the trial court properly denied the request for a jury instruction on the lesser included offense of voluntary manslaughter. See Armstrong v. State,
3. Campbell also contends that the trial court committed reversible error in instructing the jury to consider any statement by Campbell with “great care and caution.” He argues that the jury charge applies solely to admissions or confessions made to police and not to Campbell’s exculpatory pre-trial statement to police. See Pincherli v. State,
Campbell’s alibi defense was based on his pre-trial custodial statement and the testimony of an alibi witness. In his videotaped statement that was played at trial, Campbell denied shooting Francis, owning a gun, or having access to one, instead claiming that he was with another person that night. At trial, a fellow student testified
You should consider with great care and caution the evidence of any statement made by the Defendant. [The j]ury may believe any statement in whole or in part, believe in that which you find to be true, rejecting that which you find to be untrue. Upon you alone rests the duty to apply the general rules for testing the believability of witnesses and decide what weight should be given to all or any part of such evidence.
In two cases decided after Campbell’s trial, the Court of Appeals cautioned against giving the “great care and caution” charge when the defendant’s statement was exculpatory and recommended that the suggested pattern jury instruction “be modified to refer to incriminatory statements only, i.e., admissions and confessions.” See McKenzie,
Nonetheless, even assuming the giving of the “great care and caution” instruction was error, we conclude that it is highly probable that the charge did not contribute to the jury’s verdict. “It is a fundamental rule . . . that jury instructions must be read and considered as a whole in determining whether the charge contained error.” (Citations and punctuation omitted.) Vergara v. State,
4. Finally, Campbell contends that his constitutional right to be present at his trial was violated. This right “ ‘exists where there is a reasonably substantial relation to the fullness of opportunity to defend against the charge and to the extent that a fair and just hearing would be thwarted by the defendant’s absence.’ ” (Citations omitted.) Parks v. State,
In this case, the pre-trial discussion of legal motions was not a critical stage of trial requiring Campbell’s presence to ensure a fair hearing. Prior to the selection of the jury, the trial court addressed the State’s motion in limine to exclude cross-examination of a witness about an issue of which Campbell’s attorney was unaware, denied in part the State’s motion in limine to exclude Campbell’s attorney from mentioning that he was a former law enforcement officer, and began considering the defendant’s motion to suppress his videotaped statement, which was subsequently played at trial. Since there was not a reasonably substantial relationship between Campbell’s presence during the discussion of these legal matters and his opportunity to defend against the charges, we conclude that his right to be present during critical stages of his criminal trial was not violated. See Parks,
Judgment affirmed.
Notes
The shooting occurred on November 3,2005, and Campbell was indicted in Fulton County on June 23, 2006. On March 2, 2007, the jury found him guilty of murder, felony murder, aggravated assault with a deadly weapon, possession of a firearm during the commission of a felony, and false statements. The trial court sentenced him to life imprisonment on the malice murder charge and consecutive five-year terms on both the firearm possession and false statements charges. The remaining charges merged or were vacated by operation of law. Campbell filed a motion for new trial on March 16, 2007 and an amended motion for new trial on July 15,2011, which was denied on April 26,2012. Campbell filed a notice of appeal on April 27, 2012. The case was docketed in this Court for the September 2012 term and orally argued on November 6, 2012.