GRESHAM v. THE STATE
S11A0382
Supreme Court of Georgia
DECIDED APRIL 18, 2011
709 SE2d 780
THOMPSON, Justice
Rachel D. Holmes, for appellant. Howard Z. Simms, District Attorney, Nancy S. Malcor, Wayne G. Tillis, Dorothy V. Hull, Assistant District Attorneys, Thurbert E. Baker, Attorney General, Paula K. Smith, Senior Assistant Attorney General, for appellee.
Appellant Antonio Bernard Gresham was convicted of malice murder and possession of a weapon during the commission of a crime, in connection with the shooting death of his wife, Carol Gresham.1 He appeals, asserting, inter alia, the State failed to prove venue in Clayton County, Georgia.
1. Appellant and his wife‘s cousin, Broderick Turner, spent the night drinking heavily. They returned to appellant‘s house in the early morning hours so appellant could get money to repay Turner for some of the evening‘s expenses. Before entering his house, appellant retrieved his gun, a Taurus .45 caliber pistol, from Turner‘s car. Turner followed appellant into the house and heard appellant demand money from his wife, who was lying in bed, unarmed and under the covers. Seconds later, appellant shot his wife in the head two times in rapid succession. She died immediately. The evidence is sufficient to enable any rational trier of fact to find appellant guilty beyond a reasonable doubt of malice murder and possession of a weapon during the commission of a crime. Jackson v. Virginia, 443 U. S. 307 (99 SC 2781, 61 LE2d 560) (1979).
2. Appellant asserts the State failed to prove venue beyond a reasonable doubt because, although the State demonstrated that the crime occurred in Clayton County, no evidence was introduced
The Court sat, and the trial was had in the County of [Clayton], and the proof was that the crime was committed . . . in the County of [Clayton]. That the Court was sitting in the County of [Clayton] and State of Georgia was a fact known to the Court from its own records and the public law. When therefore it was proven that the crime was committed in the County of [Clayton], it was proven that it was committed in the County in which the Court entertained jurisdiction over it. Non constat that there is in Georgia any other County called [Clayton]. There is no use in discussing a question like this. If such an exception were sustainable, it could be done alone by taking leave of common sense, and by yielding the solid virtue of judicial investigation to a distinction too subtle to command the least respect.
Mitchum v. State, 11 Ga. 615, 619 (1852). See also
3. Appellant contends the trial court erred in refusing to charge the jury on voluntary manslaughter. In this regard, appellant points to his own testimony wherein he averred: “We were having an argument about money and I was getting agitated and angry. [The victim] could see that and she stated remember what happened to your ass the last time and I will do it again2 and I snapped.” This evidence was insufficient to show that appellant acted “solely as the result of a sudden, violent, and irresistible passion resulting from serious provocation sufficient to excite such passion in a reasonable person.”
4. Appellant‘s claim that the trial court‘s charge led the jury to convict because it “unfairly tilted towards guilt” was not raised below and will not be heard on appeal. Collier v. State, 288 Ga. 756 (707 SE2d 102) (2011); Lacey v. State, 288 Ga. 341 (2) (703 SE2d 617) (2010). Moreover, assuming a plain error analysis would be appropriate in this case, we find no plain error pursuant to
6. Appellant was convicted of malice murder, felony murder, two counts of aggravated assault, and possession of a weapon during the commission of a crime. The trial court sentenced appellant to life in prison for malice murder, twenty years consecutive on one6 of the two aggravated assault counts, and five years consecutive on the weapons possession count. Appellant contends the trial court erred in sentencing appellant on the aggravated assault count. We agree.
When valid guilty verdicts are returned on both alternative counts of malice and felony murder, the alternative felony murder count is vacated by operation of
OCGA § 16-1-7 . Thus, there is no felony murder count into which the underlying felony can merge, since the felony murder conviction has been statutorily vacated. Accordingly, it should be immaterial whether that statutory effect is initially recognized by the trial court‘s imposition of a sentence only as to the alternative malice murder count or whether the trial court‘s error in failing to recognize that statutory effect is ultimately corrected by this court‘s vacating of the sentence on the alternative felony murder count. . . . In either event, the end result is that the defendant has onlybeen “sentenced for malice murder, not felony murder. . . .” [Cit.] Accordingly . . . we proceed to determine whether the underlying felon[y] in the instant case merged, as a matter of fact, into appellant‘s valid malice murder conviction.
Malcolm v. State, 263 Ga. 369, 374 (434 SE2d 479) (1993).
The evidence demonstrated that the aggravated assault upon the victim and the murder of the victim occurred simultaneously. Thus, the evidence used to prove the aggravated assault offense was established by the same but not all of the facts required to prove malice murder, and the conviction and sentence for the aggravated assault count must be set aside. Malcolm, supra (citing Montes v. State, 262 Ga. 473, 474 (1) (421 SE2d 710) (1992)).
Judgment affirmed in part and vacated in part. All the Justices concur, except Nahmias, J., who concurs specially.
NAHMIAS, Justice, concurring specially.
For the reasons given in my special concurrence in Collier v. State, 288 Ga. 756 (707 SE2d 102) (2011), I believe that