Lead Opinion
Jоhn T. Martin, Jr. appeals his convictions for felony murder, aggravated assault, and possession of a firearm by a convicted felon in connection with the fatal shooting of Willie Mae Brown.
The evidence viewed in favor of the verdiсts showed that in the early morning hours of October 6, 1993, Willie Mae Brown and her neighbor and friend, Donetta Shorty, were sitting and drinking on the porch of Brown’s mother’s residence. Martin approached the women and indicated that he wanted to entеr the residence to visit Joe Whitehead, who was staying there. Brown told Martin that it was too late to go upstairs, but Martin disregarded this and walked up the stairs to enter the home. Brown followed, Martin hit her in
When Martin was arrested a few hours after the shooting, the police found a .38 caliber revolver tucked inside the waistband of his pаnts. The fatal bullet was positively identified as having been fired from the recovered revolver.
At trial, Martin related a version of events much different from that told by the eyewitnesses. Martin claimed that the revolver had been pawned to him by Whitеhead and Shorty, that he and Brown got into an argument about the gun, which Brown claimed as her own, and that he refused to return the gun until he got back the money he had loaned for it. He went downstairs and pulled out the weapon after Whitehead asked him for it. Brown stood on the balcony and cursed at Martin and Martin saw a “flash” in Brown’s hand, which he believed to be a gun. As Martin started to turn away, Shorty grabbed Martin’s hand in an attempt to get the revolver, and Martin “brought [Shorty] around” and raised his hand in the air tо thwart Shorty. Martin testified, “I throwed my hand up, the gun went off.”
When asked how Brown’s alleged conduct made him feel, Martin stated that he did not “pay [Brown] too much attention.” Martin further explained that he had thrown his hand up to wrest the gun from Shorty because hе “wasn’t going to let her get that gun.” Martin unequivocally denied ever pointing the revolver at Brown, that he intended to shoot or harm her, or that he knew she had been shot. He told the jury, “I had no reason to shoot Willie Mae.”
1. The evidence was sufficient for a rational trier of fact to find Martin guilty beyond a reasonable doubt of the crimes for which he was convicted. Jackson v. Virginia,
2. Martin fails in his contention that the trial court abused its discretion by denying him a continuance which he sought in order to obtаin certified copies of a prosecution witness’ convictions in an attempt to impeach the witness. The granting or denial of a continuance is a matter for the sound discretion of the trial court. OCGA § 17-8-22; Harrison v. State,
3. Martin asserts that the trial court committed reversible error by allowing into evidence a certified copy of his prior felony conviction even though he expressed his willingness to concede his status as a convicted felon. He argues that his case is distinguishable from Robinson v. State,
4. Martin is unsuccessful in his claims that he was improperly convicted of felony murder because the status offense of possession of a firearm by a convicted felon is not sufficient to support such a conviction, and that he was denied a fair trial when the trial court refused to bifurcate the trial of the firearm possession charge.
The State’s evidence was that convicted felon Martin possessеd a firearm and then used it to commit an aggravated assault against the victim which resulted in her death. Under such circumstances, the status offense was dangerous, life threatening, and sufficiently connected to the homicide to serve as thе underlying felony for the felony murder conviction. Weems v. State,
5. There is no merit to Martin’s blanket assertion that the trial court violated his right to a fair trial by refusing to instruct the jury on “reasonable doubt, intent, presumptions, and burden shifting.” The record discloses that the trial court instructed the jury about the defendant’s presumption of innocence, that the defendant would not be presumed to have acted with criminal intent, that the State had
6. Martin further contends that he was denied a fair proceeding because the trial court refused to instruct the jury on justification which he claims was his sole defense to the charges of felony murder and firearm possеssion and his alternative defense to aggravated assault. However, the trial court did not err in refusing to give a charge on justification as it was neither Martin’s sole defense nor reasonably raised by the evidence at trial. See Conner v. State,
Generally, the defenses of accident and self-defense are not both involved in a case. Berry v. State,
7. Under the circumstances of this case, it was not error for the trial court to refuse to instruct the jury on unlawful act involuntary manslaughter and reckless conduct. See OCGA §§ 16-5-3 (a); 16-5-60 (b). The evidence еstablished that Martin either intentionally shot and killed Brown, committing aggravated assault and murder, or that his actions were not deliberate and the revolver accidentally discharged resulting in no criminal culpability for Brown’s death. “Where . . . the evidеnce shows either the commission of the completed offense as charged, or the commission of no offense, the trial court is not required to charge the jury on a lesser included offense.” Mason v. State,
8. The trial court did not violate Martin’s duе process rights because in its recharge on aggravated assault it instructed the jury
9. Martin does not shоw reversible error by the contention that the prosecutor improperly introduced new evidence during closing argument when the prosecutor told the jury to pull the trigger on the gun during deliberations to demonstrate the difficulty of doing so, and that the weapon could not be discharged by accident. To begin with, Martin made no objection to the argument at trial. See Burgeson v. State,
10. Lastly, Martin was not denied effective assistance of trial counsel under the standard of Strickland v. Washington,
Judgments affirmed.
Notes
The shooting of Willie Mae Brown occurred on October 6, 1993. On December 21, 1993, Martin was indicted for Brown’s malice murder, the felony murder of Brown while in the commission of possession of a firearm by a convicted felon, Brown’s aggravated assault, and possession of a firearm by a convicted felon. Martin was also indicted for the aggravated assault of Donetta Shorty and possession of a firearm dining the commission of her aggravated assault. Martin was tried before a jury in the Superior Court of Fulton County on October 3-6, 1994, and was found guilty of the felony murder and aggravated assault of Brown as well as possession of a firearm by a convicted felon. He was acquitted of Brown’s malice murder and the charges involving Donetta Shorty. On October 20, 1994, Martin was sentenced to life imprisonment. Martin’s motion for new trial was filed on October 26,1994, amended on January 2, 1997, and denied on February 18, 1997. A notice of appeal was filed on March 11, 1997, and the appeal was docketed in this Court on April 1, 1997. The case was submitted for decision following oral argument on June 17, 1997.
OCGA § 16-5-21 provides in pertinent part:
(a) A person commits the offense of aggravated assault when he or she assaults:
(1) With intent to murder, to rape, or to rob;
(2) With a deadly weapon or with any object, device, or instrument which, when used offensively against a person, is likely to or actually does result in serious bodily injury.
Concurrence Opinion
concurring specially.
I respectfully disagree with the reasoning of Division 9 of the
During closing argument, the prosecutor urged the jury to conduct its own demonstration by testing the pull of the trigger. The prosecutor made this argument despite the fact that there had been no expert testimony regarding whether the gun was likely to fire accidentally. In Williams v. State
However, given the strength of the state’s case against Martin, there is no reasonable probability that the improper argument changed the result of the trial
Todd v. State,