S04A0829. PATEL v. THE STATE.
S04A0829
Supreme Court of Georgia
September 27, 2004
603 SE2d 237
THOMPSON, Justice.
2. Phelps also contends that the evidence is insufficient to establish the crime of concealing a death. To be guilty of concealing a death, there must be proof that the defendant hindered the discovery of whether the victim was unlawfully killed.3 The evidence here established that Phelps severely beat the victim and dragged him into the woods, where he would not be easily discovered. We conclude that any rational trier of fact could have found Phelps guilty beyond a reasonable doubt of concealing a dеath.4
Judgment affirmed. All the Justices concur.
DECIDED SEPTEMBER 27, 2004.
John T. Strauss, for appellant.
W. Kendall Wynne, Jr., District Attorney, Alan C. Cook, Assistant District Attorney, Thurbert E. Baker, Attorney General, Chad E. Jacobs, Assistant Attorney General, for appellee.
THOMPSON, Justice.
Viral Patel was convicted of felony murder in connection with the shooting death of Tyree Garrett. He appeals, asserting, inter alia, the trial court erred by admitting into evidence a hearsay statement that his wife made to his brother at or near the time of the shooting.1 Finding no error, we affirm.
On the night in question, one of defendant‘s employees reported thаt a lock on a door to the storage building had been broken. Defendant headed for the building. He asked Butch Felton, a regular customer, to accompany him so he could show Felton just how the thieves were breaking in. Defendant and Felton went inside the building and defendant‘s employee closed the door behind them. It was very dark inside and difficult to see. Soon, Felton heard voices and the sounds of someone breaking into the building.2 Defendant took out a pistol and yelled for the intruder to “halt.” A few minutes went by; it was quiet. Then defendant shot the pistol three times. A bullet pierced a plywоod covering which had been nailed to the outside of the building and entered Tyree Garrett‘s brain. Garrett fell to the ground - outside of the storage building.
Initially, Patel denied knowing anything about Garrett‘s death. However, he ultimately acknowledged that he killed Garrett, telling police that he opened fire when an intruder, who threw a can of soda at him, started to leave the storage building through a window.
1. The evidence was sufficient to enable any rational trier of fact to find defendant guilty beyond a reasonable doubt of felony murder while in the commission of an aggravated assault. Jackson v. Virginia, 443 U. S. 307 (99 SC 2781, 61 LE2d 560) (1979); see
2. Defendant‘s brother testified that, before the shooting, defendant‘s wife telephoned him and said defendant was “pissed off” because “they” had been stealing beer and sodas. The parties stipulated that defendant‘s brother told a detective that, in that same telephone сonversation, defendant‘s wife asked the brother to tell defendant not to enter the storage building.
Defendant asserts the trial court erred in allowing the brother to testify as to what defendant‘s wife told him. More specifically, defendant contends the trial court erred in admitting the wife‘s statement under the res gestae exception to the hearsay rule.
“[A] trial judge‘s determination that evidence offered as part of the res gestae is sufficiently informative and reliable as to warrant
Viewed in context, it is clear that the statement of defendant‘s wife was made as defendant prepared himself to enter the storage building.3 Thus, it was part of the res gestae,
The mere fact that the statement reflected a subjective opinion of defendant‘s state of mind, as opposed to an objective, observable fact, is of no consequence. As long as it is part of the res gestae, a statement of opinion is admissiblе. Bentley v. State, 131 Ga. App. 425, 429 (205 SE2d 904) (1974).
3. Because the evidence suggested that two individuals were in the process of burglarizing the storage building, defendant asserts the trial court erred in failing to charge the jury on “transferred justification.” See Crawford v. State, 267 Ga. 543, 544 (480 SE2d 573) (1997). This assertion is without merit for two reasons. First, defendant did not open firе until the intruder started to escape from the building. Thus, any assault upon defendant, and any justification, was over when defendant started shooting. Id. Second, the trial court adequately covered the principle of “transferred justification” when it charged the jury on the twin principles of “transferred intent” and “justification.” Armstrong v. State, 250 Ga. App. 784 (552 SE2d 920) (2001).
4. Defendant contends the trial court‘s instructions on aggravated assault and justification were confusing and erroneous. The charge was complicated by the fact that the law of aggravated assault was injected into the case in two ways, to wit: as the underlying felоny in the felony murder count of the indictment; and as the source of defendant‘s justification defense. Recognizing that its charge was
In connection with the definitions of aggravated assault, I‘m going to recharge you on that. And I‘m instructing you now to disregard any prior definitions of aggravated assault that I may have given you. And to use in lieu thereof the charge that I‘m going to give you now. And that I‘m going to send a copy of which out to you.
Still we have got to make a distinction. I‘m sending you out basically the entire Code section on aggravated assault. But we have to make a distinction between the aggravated assault which is alleged in the indictment which alleges that the aggravated assault was committed with a deadly weapon, and... that must be proved. And the definition of аggravated assault in conjunction with the justification part of the case.
So what I‘m going to do just for purposes, I hope of showing you exactly what I mean is I‘m going to read the entire charge. But I‘m also going to point out which law would apply to which aspect of the case. The Stаte‘s allegation that there was a felony murder, and that the felony was aggravated assault. And that the particular aggravated assault was an aggravated assault with a deadly weapon.
And then I will charge you on the other general section of aggravated assault or the wholе section that you could apply if you felt like it did apply based on the other instructions of the court and other instructions to the facts of the case through the justification aspects of the case.
Okay, A, an assault is an attempt to commit a violent injury to the person of another; or, B, an act which places another person in reasonable apprehension of immediately receiving a violent injury.
For the purpose of the State‘s burden in this case and the indictment that charges the felony murder and the aggravated assault being the felony that was allegedly committed in conjunction therewith, the portion of the charge or the definition that would be the one that you must consider [in] that connection would be the person committed the offense of aggravated assault when that person assaulted another person with a deadly weapon, period.
In other words, in order for you to find that there was a felony committed of aggravated assault in conjunction [with] a
felony murder charge, you would have to find beyond a reasonable doubt that the defendant did commit the offense of aggravated assault or an аggravated assault[ ] as I have defined it for you with a deadly weapon. Okay. As far as the justification . . . aspect of the case is concerned, the charge is as follows: an assault is an attempt to commit a violent injury [on] a person; or B, an act which places another рerson in reasonable apprehension of immediately receiving a violent injury. A person commits the offense of aggravated assault when that person assaults another person with intent to murder or rob; B, with a deadly weapon; or with any object, device or instrument which when used оffensively against a person is likely to or actually does result in serious bodily injury.
An object if and when used in making an assault upon another person is not a deadly weapon per se, but may or may not be a deadly weapon, depending upon the manner in which it is used and the circumstancеs of the case.
However, aggravated assault is also defined as an assault with any object which when used offensively against a person likely to actually cause result in serious bodily injury.
Viewing the charge in its entirety, we find that it presented the issues in a way that was not likely to confuse a jury of average intelligence. See generally Lumpkin v. State, 249 Ga. 834 (295 SE2d 86) (1982); Blocker v. State, 225 Ga. 721 (171 SE2d 309) (1969). We find no error.
5. Relying upon Talton v. State, 254 Ga. App. 111 (561 SE2d 139) (2002), defendant asserts the charge on aggravated assault was not tailored to fit the indictment. In this regard, defendant argues that, much like Talton, the charge permitted the jury to convict if it found that defendant placed the intruder in reasonable fear of receiving a violent injury, even though the indictment specified that defendant committed an aggravated assault “by shooting” the victim with a gun. This assertion is without merit. Defendant was not charged with aggravated assault; he was charged with felony murder predicated upon an aggravated assault. It follows that, unlike Talton, the jury could not convict defendant by simply showing that he pointed a pistol at the victim; of necessity, it had to find that defendant shot the victim. Thus, there is no possibility that the jury convicted defendant of committing a crime in a manner not charged in the indictment.
6. Defendant also contends the trial court‘s charge was improper because, by charging on the use of force in defense of property other
7. The triаl court did not err by asking potential jurors: “Is your mind perfectly impartial between the State and the accused?”
8. Defendant asserts the trial court erred in limiting direct examination of a defense expert who gave testimony with regard to the racial and ethnic composition of the grand and traverse jury pools. However, defendant fails to present argument or citation of authority to support this assertion. Accordingly, it is abandoned under Rule 22, Rules of the Supreme Court. Williams v. State, 256 Ga. 609, 611 (351 SE2d 454) (1987).
9. Defendant‘s appellate counsel asserts that trial counsel rendered ineffective assistance. Because trial counsel filed the motion for new trial and the notice of appeal, and because appellate counsel did not even make an appearance in this case until it was to be orally argued, appellate counsel raises this issue at the first practicable moment. Strong v. State, 263 Ga. 587 (6) (436 SE2d 213) (1993). Accordingly, we remand this case to the trial court for a hearing to determine whether trial counsel rendered ineffective assistance. Id.; Emilio v. State, 257 Ga. App. 49 (4) (570 SE2d 372) (2002).
Judgment affirmed and case remanded with direction. All the Justices concur.
FLETCHER, Chief Justice, concurring.
I concur in the judgment, and with all of the mаjority opinion except Division 4. I write separately to emphasize that, because appellate counsel raised his ineffective assistance of trial counsel claim at the earliest practicable moment, he should be allowed to explore both the specific enumerations of ineffectiveness raised in his brief and any additional enumerations (such as trial counsel‘s failure
I am authorized to state that Justice Hunstein joins in this concurrence.
DECIDED SEPTEMBER 27, 2004.
Smith, White, Sharma & Halpern, Laurence H. Margolis, for appellant.
Jeffrey H. Brickman, District Attorney, Barbara B. Conroy, Assistant District Attorney, Thurbert E. Baker, Attorney General, Jason C. Fishеr, Assistant Attorney General, for appellee.