LUCAS v. THE STATE
S95A0211
Supreme Court of Georgia
June 12, 1995
June 30, 1995
265 Ga. 514 | 458 SE2d 103
SEARS, Justice.
4. The majority deemed “without merit” the county‘s assertion that the trial court erred when it refused to order the joinder, as necessary parties to the action, of the employees of the clerk‘s office. See
In sum, I bеlieve the employees of the Office of the Clerk of Superior Court should have been joined as parties in this action; that only those employees who hold positions described in Ga. L. 1969, p. 3051, § 9 and Ga. L. 1987, p. 5388, § 1 are exempt from coverage of the Gwinnett County Merit System Act, and that the clerk of superior court is not entitled to reimbursement for the reasonable attorney fees he expended initiating and pursuing this declaratory judgment action. As а result, I respectfully dissent.
DECIDED MAY 30, 1995 — RECONSIDERATION DENIED JUNE 30, 1995.
Caryl B. Sumner, John E. Underwood, William J. Linkous III, Boyce, Ekonomou & Atkinson, Richard A. Carothers, Lee W. Fitzpatrick, for appellants.
Rowe & Lawler, Thomas C. Lawler III, H. Patterson Garner, for appellees.
SEARS, Justice.
The appellаnt, Michael Lucas, was convicted of the felony murder and aggravated assault of his brother-in-law Willie Holyfield and of the aggravated assault of his nephews Larry Maddox and Dante McDaniel.1 The trial court merged the conviction for the aggravated
1. The evidence would have authorized a rational trier of fact to find that on the night of the shooting, Lucas called the home of his two nephews (who lived with Lucas‘s sister and Holyfield) because he thought one of them had stolen part of his income tax refund; that he tоld one of them that if he did not get his “shit” back, “somebody [was] going to be dodging bullets“; that after speaking with his nephew, he loaded one shell into a shotgun and took it with him to his nephews’ house; that he pointed the shotgun at one nephew in thе living room and demanded the return of his money; that he then walked to the bedroom of the other nephew, saying that he was going to put a “cap in somebody‘s ass“; that he then waved the gun at the nephew in the bedroom and demаnded his money; that Holyfield then walked toward the bedroom and asked what was going on; that Lucas turned toward Holyfield, and stated “Mother fucker, you‘ll get some of this, too“; and that Lucas then shot and killed Holyfield. Although Lucas testified at trial that the shooting was accidental, we conclude the evidence is sufficient to support the convictions.2 Moreover, contrary to Lucas‘s argument, the merger doctrine does not preclude Lucas‘s conviction for felony murder.3
2. In nine enumerations of error, Lucas contends that the trial court erred in giving and in failing to give various jury charges. We rule, however, that Lucas is procedurally barred from raising all but one of these enumeratiоns.
Following the jury charge, the trial court asked for exceptions to the charge. Defense counsel complained that the trial court failed to instruct the jury that if the shooting was accidental, the verdict should be not guilty. Dеfense counsel then said, “I‘ll cite the law on that if we have to in the motion for new trial or the appeal process if that‘s necessary, and I‘d like to reserve the right to do that.” (Emphasis supplied.) The trial court noted the objection, and defense counsel made no further objection or reservation to the charge.
In denying Lucas‘s motion for new trial, the trial court ruled that
As for accident, Lucas contends that by failing to include a verdict option of not guilty based upon a finding of аccident when summarizing the verdict options available to the jury, the trial court effectively removed that option from the jury‘s consideration. We disagree. Earlier in its charge, the trial court accurately instructed the jury оn accident, informing the jury that it could not find anyone guilty of a crime based on conduct that was accidental and that if it found the death in this case resulted from an accident, it had to acquit Lucas. In its summation, although the trial cоurt did not mention accident, it instructed the jury that if it found Lucas was not guilty, then it had to acquit him. Contrary to Lucas‘s contention, these instructions adequately presented Lucas‘s claim of accident to the jury.6
3. Lucas contends on aрpeal that his trial counsel provided ineffective assistance by failing to request that the trial court charge the jury that it could consider the misdemeanor of reckless conduct as the unlawful act for purposes of involuntary manslaughter under
The relevant questiоns are whether trial counsel‘s performance
Judgment affirmеd. All the Justices concur, except Thompson, J., who dissents.
THOMPSON, Justice, dissenting.
In the absence of a proper objection, we will review an erroneous instruction “where there has been a substantial error in the charge which was harmful as a matter of law....”
Lucas testified in his own defense that he went to the home of his sister in an effort to get his nephews to return some money which he believed they had taken. He brought with him a shotgun which belonged to another family member and which he had never before used. He deniеd an intent to assault or to shoot anyone, but believed the gun would show that he “meant business” and that he would get his money back. The house was dark except for a light in the kitchen. He approached Dante‘s bedroom and demanded the return of his money. Defendant then heard a voice from behind him in the darkened hallway. He testified that as he attempted to turn around, the gun slipped from his hand, and accidentally discharged. Lucas offered the testimоny of a ballistics expert which was consistent with this version of the events.
The trial court instructed the jury that “you should consider with great care and caution the evidence of any statement made by the defendant.” The foregoing instruсtion is included in a pattern jury charge relating to the law of confessions, based upon
Prior to charging the jury concerning the defendant‘s statement, the court gave a general charge on credibility of witnesses, concluding with the jury‘s obligation to reconcile conflicts in testimony by crediting the testimony of those witnesses “best entitled to belief.” By subsequently admonishing the jury to consider the defendant‘s testimony with “great care and caution,” the court placed the defendant‘s testimony in a category requiring greater scrutiny. Thus, the charge prejudiced the accused by cautioning the jury that his testimony is entitled to less weight than that of other witnesses. Where the verdict hinged on the credibility of witnesses, I find that the erroneous charge was harmful as a matter of law, thus mandating reversal оf the convictions.
DECIDED JUNE 12, 1995 — RECONSIDERATION DENIED JUNE 30, 1995.
Ronald J. Scholar, for appellant.
Lewis R. Slaton, District Attorney, Herman L. Sloan, Rebecca A. Keel, Assistant District Attorneys, Michael J. Bowers, Attorney General, Susan V. Boleyn, Senior Assistant Attorney General, Marla-Deen Brooks, Assistant Attorney General, for appellee.