Cole v. StateCole v. State
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- Before:
- Hill
Lead Opinion
In this felony murder case, Gilbert Cole, Jr., a Bibb County sheriff’s deputy, was convicted of killing his 29-year-old stepson. He was sentenced to life in prison and appeals.1
After the defendant, who had worked in drug enforcement, and his stepson, Carlos Antonio Linder, had been drinking together all day, an argument commenced which involved, according to the defen
1. In order to bolster his defense that he was trying to help the victim by dissuading him from further use of drugs, the defendant enumerates as error the trial court’s refusal to admit into evidence five specific incidents involving the victim’s prior drug .use.2 He argues that specific evidence of the victim’s prior drug usage was relevant and admissible in order for the jury to understand the amount of passion experienced by the defendant, who had often lectured on the abuse of drugs to school children, by the victim’s insistence on going to a party at which he intended to use drugs. Without being able to show his deep feelings resulting from these specific incidents, he contends he was deprived of evidence necessary to support a conviction for voluntary manslaughter rather than murder.3
While on the stand the defendant testified as to his concern about the victim wanting to use drugs that night and that this concern, along with the victim’s prior history of drug use, had precipitated their fight.
Voluntary manslaughter is defined in
For the same reasons, the trial court did not err in denying the defendant’s motion to subpoena the victim’s service records in order to prove that the victim used illicit drugs while in the Army. Insofar as the defendant sought the records to show the victim’s tendency to violent and aggressive behavior in order to bolster his self-defense theory, we also find no error. No other evidence of such character was presented by the defense, and, unless these records reflected prior difficulties with the defendant himself (of which the defendant would have had knowledge), they would not have been admissible. House v. State, 252 Ga. 409, 413 (314 SE2d 195) (1984).
2. The defendant next complains that the application of the felony murder rule where the underlying felony is aggravated assault violates his constitutional rights in that it deprives the jury of finding a defendant guilty of voluntary manslaughter. Defendant urges that, assuming for purpose of argument that he did not act in self-defense, the uncontradicted facts show that he assaulted the victim with a deadly weapon; i.e., that he committed aggravated assault, a felony,
We note at the outset that voluntary manslaughter is a crime, not a defense. The General Assembly prescribes the conduct which constitutes a crime and felony murder is a crime.
We therefore reaffirm our holdings in Baker v. State, 236 Ga. 754 (1) (225 SE2d 269) (1976), and its progeny. Nothing said herein is intended to modify our holding in Malone v. State, 238 Ga. 251, 252 (232 SE2d 907) (1977).
3. The defendant contends the trial court improperly admitted an incriminating statement made to a police officer after he had been given his Miranda [v. Arizona, 384 U. S. 436 (86 SC 1602, 16 LE2d 694) (1966)] warnings and after he had invoked his right to remain silent. He urges that he was “functionally interrogated” and felt compelled to explain his actions when the arresting officer told him the officer would call the chief of police to report the defendant’s arrest,
4. The defendant’s next enumeration complaining about the improper admission of a photograph of the victim after autopsy presents no grounds for a new trial because the part of the photograph depicting the autopsy incision was cut off, leaving only the head and shoulder and showing that the victim had a black eye, which the state sought to show as part of its case, and a small amount of blood, which resulted from the gunshot wound itself. Brown v. State, 250 Ga. 862 (5) (302 SE2d 347) (1983).
5. In view of the defendant’s statements, before and after the shooting, there was no error in failing to direct a verdict of acquittal of malice murder. Graham v. State, 250 Ga. 473, 475 (298 SE2d 499) (1983).
Judgment affirmed.
All the Justices concur, except Clarke and Gregory, JJ., who dissent.Notes
The victim was shot on December 3, 1983, and defendant was convicted on February 23, 1984. His motion for new trial was filed on March 22; the trial transcript was filed on June 15; and the motion was overruled on August 10, 1984. Notice of appeal was filed in the trial court on September 6; the record was docketed in this court on December 17,1984, and the case was argued on February 2, 1985.
The five incidents he sought to reveal were (1) that the victim was high on cocaine when he had had a diving accident and broke his neck; (2) that marijuana had been found in the victim’s grandmother’s car after the victim had used it; (3) that the defendant had once smelled smoke in the victim’s room; (4) that the victim said he had been disciplined while in the Army after marijuana was found in his locker; and (5) that the victim once said he was high and contemplating suicide. None of the other family members who were witnesses said anything about a drug problem, though they were cross-examined about it.
The trial court did charge the jury on voluntary manslaughter, and in view of the argument and fight such charge was proper.
When the arresting officer informed the defendant of the procedural reporting which would ordinarily take place, the defendant responded with the statement which prompted this objection: “I beat the kid and I wasn’t going to take an . . . whipping. I’m not taking an . . . whipping from nobody. I practically raised the kid. I just hope he didn’t die.”
Dissenting Opinion
dissenting.
I dissent as to Division 1 of the majority opinion.
I have no hesitancy to hold that one who kills another to prevent him from using drugs is not justified. That is comparable to the holding in Burger v. State, 238 Ga. 171 (231 SE2d 769) (1977), where it was decided that the act of a husband in killing his wife and her paramour discovered in a compromising setting was not justified. But I am not willing to go further and hold as a matter of law that a stepson, with a history of drug use, who threatens his stepfather with again using drugs never constitutes that provocation which may reduce murder to voluntary manslaughter.
I am authorized to state that Justice Clarke joins in this dissent.