*1 running оff at the Gay her he had shot “because and told he had shot Jenkins told her Jenkins’ niece also mouth.” light most leg. reviewing Gay that a ra- guilt, of we conclude determination favorable the crime guilty of have found Jenkins trier of fаct could tional 2781, 61 LE2d Jackson v. S. 307 443 U. charged. concur. Justices 6, 1995. Strickland, E. Donald Bowers, Attorney Michael J. Priddy, Attorney,
Britt R. General, Attorney General, Boleyn, Senior Assistant Susan V. Brooks, Attorney Assistant Marla-Deen LEE THE STATE. S94A1771.
Benham, Presiding Justice. aрpellant’s murder appeal follows conviction of from wounds: one chest gunshot wherein the victim died two one the victim’s ear range eight inches and behind from a six range inches. The fatal wounds from a one to one-and-one-half by a pistol.1 were made .38 had, on several oc-
1. Evidence at trial established that casions, regarding al- the victim and the an confronted having appellant’s was with former wife. leged affair that the victim destroyed marriage and was that the affair had victim to attempt convince the reconciliation. Texas, wife, stop seeing appellant’s appellant, former a resident victim, bringing pistol. him .38 Atlanta flew to 6-11, 26, initially May April was tried on The on The defendant crime occurred May 11, The on 1991 and trial court sentenced returned verdict day. imprisonment the same Lee to life on appellant’s judgment reversed under this court September began Appellant’s on and remanded for a new trial. second trial the case September 20,1993. appellant guilty finding The verdict returned a day. 24, 1993, imprisonment mo to life on the same His court sentenced 1994, 8, was denied on and amended June tion for new filed on October 24, appeal 9, Appellant’s appeal The dock filed on June was June notice was 12,1994, August for decision on briefs on October eted in this court was submitted town, however, victim back was out subsequently Texas and at a returned to Atlanta later date. time,
When arrived at the victim’s residence the second again brought The victim at home and allowed lant inside where the two men sat at thе kitchen and be- down table gan According appellant, victim converse. refused to end the *2 Appellant placed affair and taunted about his manhood. the table, gun stating the he to victim that did not want to see the victim die since the victim’s wife and child would suffer. grabbed gun
testified that he fired twice when the victim at his and lunged pair pair at him with a of scissors. Police officers found a right expert scissors hand. A at forensic trial that the victim shot in рosition. shooting while a seated the victim, appellant attempted fingerprints door, to erase from the placed powdery and a white substance around the victim’s mouth and killing around a soft drink can in order the appear drug- to make related. He then back to pawned and Texas the
2. We conclude that a
ap-
rational
trier of fact could have found
pellant guilty
beyond
the crime of
a reasonable
Jackson
v.
doubt.
“It is not cause for a trial an entire new Code section . . given though is . may inapplicable a be State, Keller (1) under the facts in evidence. 245 522 Ga. [Cits.]” (2) (305 accord Estes v. (1980); SE2d 251 347 778) (1983). in Viewing 2 provides OCGA 16-3-21 § that: (a) persоn justified threatening using against A is in or force another when and to the reasonably extent necessary that he believes that such threat or force is to himself or defend person against force; however, person a third such other’s use of imminent unlawful a is justified using likely bodily only in great force which is or to cause death if intended or harm reasonably necessary prevent great bodily injury believes that such force is death or person prevent felony. himself or a third or to a the commission of forcible (b) person justified using specified A is not in force under the in circumstances subsec- (a) tion of this Code if section he: (1) provokes Initially the use of forcе himself with the force intent use such as assailant; bodily an excuse to inflict harm (2) attempting commit, committing, fleeing attempted Is or after commission or felony; commission aof or aggressor engaged by agreement Was the or was combat a unless he withdraws effectively person from the encounter and to such do communicates other his intent to so and other, notwithstanding, continues threatens to continue the force. use unlawful Jolley v. error, statute justification
the entire
516) (1985),
even been beneficial
have
Ga. 624
gun
a
purchased
indicated that
since the evidence
Keller, See
the victim.
and flew to Atlanta
Texas
(b)
contends that the
Appеllant ap-
jury
to find
which allowed
a verdict form for
include
This enu-
if
acted
self-defense.
pellant
guilty
it found
charging the
to the trial court
lacks merit. Prior
meration of error
thereby
approved the form of the
apрellant’s counsel
(3) (422
Earnest v.
any possible error.
waiving
Thompson
188) (1992).
App.
211 Ga.
670) (1994).
deliberations,
on mur
(c)
recharge
asked for a
During its
that the trial
voluntary manslaughter.
asserts
der and
on self-defense
it failed to include
erred whеn
breadth,
need,
is without merit as
recharge.
contention
“[t]he
sound dis
jury instructions are left to the
and formation of additional
(5) (a)
court,” Peebles v.
trial
cretion
639) (1990),
requested
recharge
nor ob
neither
See Williams
give
recharge.
failure to
such a
jected to the trial court’s
*3
grant
the trial court’s refusal to
Appellant
enumerates as error
upon appellant’s failure to call
the State commented
a mistrial after
testimоny
speculated as to what her
his former
as a witness and
that he and his former wife
might
Appellant
have been.
contends
they re-
husband and wife because
should be considered common law
that under James
divorce,
living together
sumed
after the
(1967),
compellable
she was not
ground, preserved this issue for he has not trial, the failure of appellant asserted that the State’s comment on At testify implied had a bur- appellant’s former wife to defense However, bringing den of forward evidence. planning
and his
to reconcile and that
former wife were
per-
recоnciliation. Because it is
affair with her was
fails to
argue
missible to
unfavorable inferences when a defendant
testimony
persons
with rele-
produce a witness after his
indicates
Dorsey v.
exist,
timony its closing argument.3 objection Because no was made at Williams, supra, nor does suggest how might prejudiced by have been see Roberts v. misstatement, we find no error. asserts that trial court’s manslaughter was improper because it included references to malice when acquitted of malice murder at his first trial. specifically contends that court’s allowed the to con- vict him for malice murder even though he was not on trial for that offense.
In instructing the trial court read verbatim the indict- ment charging appellant felony murder. The charged trial court on the law assault, aggravated murder and omitting any reference to the offense statutory elements of malice murder. The trial court charged on voluntary manslaughter, giving the pattern jury instruction. Suggested Instructions, Jury II, Pattern Vol. Cases, Criminal p. 73. The gave court also pattern jury on intent kill. Suggested Jury Instructions, II, Pattern Vol. Crimi- Cases, p. nal recognize
We presents case an unusual situation involv- ing possible verdicts of murder or voluntary manslaughter and excluding any possible verdict of malice murder. This situation was brought acquittal about of malice Lee v. during the first trial. 249) (1992). Although the trial court any should have eliminated ref- erence to its charge the refer- here, ences made viewing the do not constitute First, reversible error. prejudiced by the references *4 because he could not have been Further, convicted of malice murder. contrary appellant’s contentions, the court did not charge on mal- murder, ice merely but referenced malice in the course of charging on voluntary manslaughter distinguish it from an intentional killing. 3 Appellant lоoking residence, stopped that while for the victim’s to ask for window, passenger directions. As he rolled down the man money entered his car and took his wallet, wallet. When told the man that he needed the contained in the closing argument, man threw a bill to him but retained the wallet. In the State remarked that appellant’s wallet, the man retaining took but returned $20. the wallet after circumstances, pattern charge giving
Under not error. manslaughter was reversible brief, appellant asserts that supplemental appellate In a conduct. Since on reckless error, not this in his enumerations of will
lant not raise issue did Rider consider it J., concur, exceрt Hunt, the Justices C. specially. who concurs Justice, concurring. Chief Hunt, case, simply judgment only
I respectfully concur holds it is disagree I with that of Division 6 which because reversible) refer to in a (though error not malice voluntary manslaughter, is not an alternative may properly voluntary man- disagree I because one define verdict. showing by by it malice murder and that vol- slaughter contrasting murder, manslaughter, untary unlike malice involves absence of An instruction that contains a definition of malice. carefully any reasonably presented trial court to confusing should not be intelligent not be and should error. Singer, Hicks, A. Janice Richard Charron, Attorney, Amy McChesney,
Thomas J. H. Cox, Attorneys, Bowers, J. At- Frank R. Assistant District Michael torney
S94A1950. JANELLE v. JANELLE.
Sears, Justice. action, divorce the trial instructed the corporation husband’s the husband’s undivided one-half interest properties subject equi- marital home were non-marital appeals subsequent judgment The wife table division. entered on and we reverse. corporation undisputed separate property 1. It is was the that the contends, parties before married. The wife the husband how- еver, corporation appreciated in value since the marriage, that the has appreciation subject is a marital asset to division. property can general, particular kind of ever be “[w]hether question judge for a property” as marital is a of law to de- classified