Laney v. StateLaney v. State
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- Before:
- Pope
Donna K. Laney brings this appeal from her conviction and sentence of misdemeanor involuntary manslaughter,
1. Appellant’s first enumeration of error asserts that a rational trier of fact could not have found her guilty beyond a reasonable doubt and that the trial court erred in denying her motion for directed verdict of acquittal. The record evidence showed that at approximately 1:30 a.m. on April 22, 1986 appellant was working alone at a convenience store in Carroll County when two young men en
The events leading up to the victim’s death showed that the victim and his brother (the other young man who entered the convenience store) were riding with three other young men from Carrollton to Douglasville. It was suggested that the group steal some beer, although one of the group was old enough to purchase it and had the money to do so, because they assumed beer sales ceased at midnight. The victim and his brother decided to enter the store and take the beer, and they were then let out on a dirt road a short distance from the store. After they had entered the store and removed the beer from the cooler, the victim and his brother headed directly for the door without looking at or speaking to appellant. While at the cooler, the victim said to his brother in a soft voice, “[L]et’s get something for our thirst.” The victim opened the cooler door and said, “I’ll get this and you get that.” The cooler was more than 34 feet from the counter where appellant stood, and a GBI agent estimated that the young men never got closer than ten feet from the counter. When the remainder of the group returned to the store a few minutes later to pick up the victim and his brother, they discovered the victim’s body blocking open the door of the store. The victim’s brother had exited the store and was in hysterics. Appellant then came out of the store with the gun and warned them not to allow the victim’s brother to flee the scene.
Appellant testified that she recognized the victim’s brother as one of two young men who had a few days earlier entered another convenience store where she worked and had grabbed some beer and run out of the store without paying. A fellow employee had pursued them out the door and shot over their heads. She testified that on the day in question the young men entered the store but did not look at her; they went straight to the beer cooler. She stated: “I knew they were going to come in there and steal beer because they were . . . walking up and they were breathing real hard when they walked into the store. And I knew what was going to happen but I didn’t know what to do and then when I overheard them talking then that’s when I picked up the gun. ... I heard one say she’s by herself, let’s go ahead and rob her. ... I didn’t know if they had any weapons because I didn’t hear or see no weapons. ... I picked the gun up and I
The thrust of appellant’s motion for directed verdict was her assertion that the homicide was justified in order to protect the property in her charge.
Clearly, a robbery may be resisted by armed force resulting in the killing of the perpetrator provided the circumstances were sufficient to excite the fears of a reasonable man that such an offense was about to be committed. E.g.,
Daniel v. State,
187 Ga. 411 (2) (1 SE2d 6) (1939), overruled on other grounds,
McMichael v. State,
252 Ga. 305, 309 n. 7 (313 SE2d 693) (1984). See generally
Brown v. State,
139 Ga. App. 466 (3) (228 SE2d 602) (1976). However, a directed verdict of acquittal is appropriate only where the evidence
demands
a verdict of not guilty.
It has always been recognized that the force used may be justified in preventing the commission of a felony when it will not justify the prevention of a mere misdemeanor. Henderson v. State, 136 Ga. App. 490, 493 (221 SE2d 633) (1975); Norrell v. State, 116 Ga. App. 479, 485 (157 SE2d 784) (1967). See also Johnson v. Jackson, 140 Ga. App. 252, 256 (230 SE2d 756) (1976), holding that it is unlawful to use deadly force to arrest, or to prevent the escape of, one who has committed a misdemeanor even though no other means are available. In a case such as the one at bar the motive of the slayer is for determination by the jury, and if it is claimed the homicide was committed under the fears of a reasonable man, it is for the jury to decide whether or not the circumstances were sufficient to justify the existence of such fears. Fudge v. State, 190 Ga. 340 (4) (9 SE2d 259) (1940); Sawyer v. State, 161 Ga. App. 479 (1) (288 SE2d 108) (1982), and cits.; Johnson v. Jackson, 140 Ga. App. at 257, supra. Likewise, the question of whether appellant used excessive force under the circumstances in this case was properly a matter within the province of the jury. See Hodge v. State, 153 Ga. App. 553 (265 SE2d 878) (1980). The weight and credibility of the evidence was for the jury, and it is apparent that the jury resolved the foregoing issues against appellant. We find that any rational trier of fact could have found appellant guilty as charged beyond a reasonable doubt. See Brown v. State, 150 Ga. App. 831 (1) (258 SE2d 641) (1979); Wood v. State, 146 Ga. App. 141 (245 SE2d 490) (1978); see also Mullins v. State, 157 Ga. App. 204 (1) (276 SE2d 877) (1981).
2. Appellant’s remaining enumeration assigns error to the trial court’s failure “to define the offense of robbery for the jury.” To paraphrase the holding in Wiseman v. State, 249 Ga. 559 (5) (292 SE2d 670) (1982), appellant in the case at bar relied on a defense of justifiable homicide. She contended that she was acting in self-defense or in the alternative that she was using the force necessary to prevent a forcible felony. These are justifications for homicide. See Division 1, supra. In order to intelligently consider the defense of justification, the jury must be informed as to what constitutes the forcible felony relied upon. “Therefore, when the prevention of a forcible felony is
First, “though present law exempts the defendant in a criminal case from the strict requirements imposed on litigants in civil cases to preserve an issue on the giving or the failure to give instructions to the jury ([
As to the second hurdle, a negative response to the trial court’s inquiry as to any exceptions to the charge generally results in a procedural default and a waiver of the right to challenge any portion of the trial court’s charge on appeal. E.g.,
Zant v. Akins,
250 Ga. 5 (2) (295 SE2d 313) (1982);
Rann v. State,
183 Ga. App. 234 (3) (358 SE2d 644) (1987). However, we find the error here so “blatantly apparent” and “highly prejudicial” as to deprive appellant of her right to a fair trial and thus require reversal of her conviction and a new trial. See
Barnett v. State,
178 Ga. App. 685 (1) (344 SE2d 665) (1986); cf.
Maynard v. State,
171 Ga. App. 605 (2) (320 SE2d 806) (1984). But see
Irvin v. Oliver,
223 Ga. 193 (2) (154 SE2d 217) (1967) (
Judgment reversed.
Birdsong, C. J., and Deen, P. J., concur.