S20A0158. COLLINS v. THE STATE.
S20A0158
Supreme Court of Georgia
DECIDED APRIL 20, 2020.
308 Ga. 515
NAHMIAS, Presiding Justice.
NAHMIAS, Presiding Justice.
Aрpellant Tommy Collins was convicted of felony murder in connection with the stabbing death of 14-year-old Rueben Hand. Appellant‘s only argument on appeal is that the trial court plainly erred when it gave the jury the State‘s requested instruction on “revenge
1.
Viewed in the light most favorable to the verdicts, the evidence presented at trial showed the following. On the night of December 31, 2010 — New Year‘s Eve — teenage friends Hand, Diamante Drake, and Edmon Odem went to Underground Atlanta near the Five Points MARTA station to watch the Peach Drop at midnight. Appellant and his fiancée also were there to see the Peach Drop.
At about 11:37 p.m., Appellant got into a fight with a group of individuals outside the MARTA station. Appellant beliеved that during the fight, someone in the group stole his cell phone, $150 in cash, and his bracelet, and he thought that Hand, Drake, and Odem were part of the group.2 Responding police officers broke up the fight and questioned Hand, Drake, and Odem before letting them leave to see the Peach Drop. Appellant‘s fiancée went home at this point.
After the Peach Drop, Hand, Drake, and Odem walked back toward the MARTA station to go home. On the way, they ran into Appellant, who accused them of taking his cell phone. Appellant and Hand argued briefly, and Appellant threatened that he could have the three teenagers killed. The three of them then walked away from Appellant, who — as shown on surveillance video — followed them into the MARTA station and down an escalator to the train platform around 12:14 a.m. When they reached the platform, Drake and Odem no longer saw Appellant, but shortly thereafter, he came around a corner, ran toward Hand, Drake, and Odem, and started swinging a knife at them. Drake dodged thе knife and pushed Odem out of the way; Hand was facing away from Appellant and did not see him approach, and Appellant stabbed Hand in the neck. Hand then ran toward nearby police officers, but he collapsed and died at the scene. Appellant fled the scene, got on a train, and left. Drake and Odem later identified Appellant in photo lineups as the man who stabbed Hand.
Around 1:00 a.m., Appellant‘s friend Ryan Carree went to check on Appellant at his apartment because Carreе could not reach him by phone; Appellant was at his apartment when Carree arrived. Appellant told Carree that he had been “jumped” and the assailants stole his cell phone. Appellant also told Carree that he “retaliated agаinst the boy who stole his cell phone” by stabbing the boy.
On January 3, Appellant was arrested and then interviewed by police officers; he did not provide any information to the officers about Hand‘s stabbing at that time. On January 14, after Appellant contacted the officers, he was interviewed a second time; this interview was video-recorded, and the recording was played for the jury at trial. Appellant told the officers the following. After the initial fight near the MARTA station, Appellant went to a friend‘s house to borrow $10 to gеt home. When he returned to the area near the station, the men with whom he had fought came up to him and tried to take his watch. After about five minutes of talking to the men,
At trial, the medical examiner who performed Hand‘s autopsy testified that Hand died from a sharp force injury to the right side of his neck that nearly transected his jugular vein and a major artery. The injuries were consistent with someonе stabbing Hand from behind.
Appellant testified at trial, claiming that he stabbed someone during the initial fight near the MARTA station but he was not the person who stabbed Hand later inside the station. Appellant said that at the time he admitted to the police that he stabbed Hand, he did not realize that Hand‘s stabbing was a separate incident from the initial fight; that he had not gone looking for anyone after the fight; and that he had not stabbed anyone inside the MARTA station.
Appellant does not dispute the legal sufficiency of the evidence supporting his convictions. Nevertheless, as is this Court‘s practice in murder cases, we have reviewed the record and conclude that, when viewed in the light most favorable to the verdicts, the evidence presented at trial and summarized above was sufficient to authorize a rational jury to find Appellant guilty beyond a reasonable doubt of felony murder. See Jackson v. Virginia, 443 U. S. 307, 319 (99 SCt 2781, 61 LE2d 560) (1979). See also Vega v. State, 285 Ga. 32, 33 (673 SE2d 223) (2009) (“It was for the jury to determine the credibility of the witnesses and to resolve any conflicts or inconsistencies in the evidence.” (citation omitted)).
2.
Appellant contends that the trial court plainly erred by giving the jury the State‘s requested instruction on “revenge for a prior wrong,” which essentially tracked the pattern jury instruction on that issue. See Georgia Suggested Pattern Jury Instructions, Vol. II: Criminal Cases, § 3.16.30 (“Revenge for Prior Wrong“). Seе also Hornbuckle v. State, 300 Ga. 750, 753-754 (797 SE2d 113) (2017) (explaining that this “pattern instruction is an accurate statement of the law“). During the charge conference, the trial court agreed to give the instruction, explaining that it appeared “to be within the scope of the evidence as a part of the charges on murder.” Appellant‘s counsel objected on the ground that Appellant was not requesting instructions on self-defense or voluntary manslaughter.
After closing arguments, the court gave the final charge to the jury, including the following instruction:
Ladiеs and gentlemen, I charge you that one who is not the aggressor is not required to retreat before being justified in using such force as is necessary for personal defense or in using force that is likely to cause death or great bodily harm if one reasonably bеlieves such force is necessary to prevent death or great bodily injury to oneself or to a third person or to prevent the commission of a [forcible] felony. However, while a person has a right to defend himself, a person is not justified in deliberately assaulting another person solely in revenge for a past or previous wrong, regardless of how serious the past or previous wrong might have been, when the episode involving the previous wrong has ended. Such person is not justified in acting out of revenge by dеliberately seeking out and assaulting the alleged wrongdoer.
If you find from the evidence in this case that the defendant used force against the alleged victim named in this indictment in order to prevent an impending wrong that the defendant reasonably believed was about to be committed by such other person and that the defendant reasonably believed that such force was necessary in order to prevent such impending wrong,
death or great bodily injury to the defendant, or to prevent the commission of a [forcible] felony, then that use of force would be justified, and it would be your duty to acquit the defendant. On the other hand, if you believe beyond a reasonable doubt from the evidence in this case that the defendant used force against the alleged victim named in the indictmеnt in the way and manner alleged in the indictment, for the sole purpose of avenging a past or previous wrong, regardless of how serious such previous wrong may have been, and not for the purpose of preventing an impending wrong, death or great bodily injury to the defendant or to prevent the commission of a [forcible] felony, then you would be authorized to convict the defendant.
At the conclusion of the jury charge, the trial court asked, “Are there any objections or exceptions to the charge . . . on behalf of the defense?” Appellant‘s counsel replied, “No, your honor.” Because an objection made at the charge conference does not by itself preserve an objection to an instruction as subsequently given, we review Appellant‘s claim only for plain error. See White v. State, 291 Ga. 7, 8 (727 SE2d 109) (2012). See also
“[T]o authorize a requested jury instruction, there need only be slight evidence to support the theory of the charge,” and the necessary evidence may be presented by the State, the defendant, or both. McClure v. State, 306 Ga. 856, 863 (834 SE2d 96) (2019) (сitation omitted). The evidence presented in this case authorized the “revenge for a prior wrong” instruction: Appellant told the police during his second interview that he was defending himself when he stabbed Hand once after Hand supposedly said, “Let‘s get this dudе,” and reached into his pocket; Hand‘s friends identified Appellant as Hand‘s assailant; before the stabbing, Appellant accused Hand, Drake, and Odem of taking his cell phone after a fight in which he thought the teenagers were involved; Appellant then follоwed the three of them down to the train platform before attacking them; and Appellant admitted to his friend that he “retaliated against the boy who stole his cell phone” by stabbing the boy. “Because some evidence support[ed] the theory that [Apрellant] may have [stabbed Hand] out of revenge for the prior incident between” them, there was “no error from the giving of this charge.” Smith v. State, 301 Ga. 79, 83 (799 SE2d 762) (2017). See also Hornbuckle, 300 Ga. at 753-754 (holding that the revenge instruction was properly given because “some evidence was presented that [the defendant] аcted out of anger or vengefulness at past wrongs rather than from a reasonable apprehension of harm from the victim“).
Appellant argues that the challenged instruction undermined his misidentification defense, which he asserts was his only defense at trial. But as just discussed, there was evidence of revenge to support the charge. Moreover, misidentification was not Appellant‘s sole defense, as his counsel argued in closing that the State had to prove not only the identity of the perpetrator but аlso his intent, saying, “If you decide that [Appellant] was there on the evidence and he lashed out . . . , you have to decide that beyond a reasonable doubt at that moment, he had the specific intent to take the life of Mr. Hand.” And the trial court gave the jury instruсtions on the State‘s burden of proving Appellant‘s intent as well as the defense of identity.
Finally, Appellant claims that the challenged instruction constituted an improper judicial comment on his guilt. See
Judgment affirmed. All the Justices concur.
DECIDED APRIL 20, 2020.
Murder. Fulton Superior Court. Before Judge Russell.
Long D. Vo, for appellant.
Paul L. Howard, Jr., District Attorney, Lyndsey H. Rudder, Stephany J. Luttrell, Assistant District Attorneys; Christopher M. Carr, Attorney General, Patricia B. Attaway Burton, Deputy Attorney General, Paula K. Smith, Senior Assistant Attorney General, Michael A. Oldham, Assistant Attorney General, for appellee.