(Laws 1833, Cobb's 1851 Digest, p. 783; Code 1863, § 4217; Code 1868, § 4254; Code 1873, § 4320; Code 1882, § 4320; Penal Code 1895, § 60; Penal Code 1910, § 60; Code 1933, § 26-1002; Code 1933, § 26-1101, enacted by Ga. L. 1968, p. 1249, § 1; Ga. L. 2009, p. 223, § 1/SB 13; Ga. L. 2014, p. 444, § 1-1/HB 271.)
Cross references.- Time limitation on prosecution for murder, § 17-3-1.
Denial of right of murderer to inherit from victim, § 53-4-6.
Editor's notes.- Ga. L. 2009, p. 223, § 8/SB 13, not codified by the General Assembly, provides that: "Except as provided in this section, the provisions of this Act shall apply only to those offenses committed after the effective date of this Act. With express written consent of the state, an accused whose offense was committed prior to the effective date of this Act may elect in writing to be sentenced under the provisions of this Act, provided that: (1) jeopardy for the offense charged has not attached or (2) the accused has been sentenced to death but the conviction or sentence has been reversed on appeal and the state is not barred from seeking prosecution after the remand."
Ga. L. 2009, p. 223, § 9, not codified by the General Assembly, provides that: "Except as provided in Section 8 of this Act, the amendment or repeal of a Code section by this Act shall not affect any sentence imposed by any court of this state prior to the effective date of this Act."
Ga. L. 2009, p. 223, § 10, not codified by the General Assembly, provides that: "A person may be sentenced to life without parole without the prosecutor seeking the death penalty under the laws of this state." Ga. L. 2011, p. 752, § 17(3) codified these provisions at Code Section 17-10-16.1.
Ga. L. 2009, p. 223, § 11(a), not codified by the General Assembly, provides that the amendment by that Act shall apply to all crimes committed on and after April 29, 2009.
Ga. L. 2009, p. 223, § 11(b), not codified by the General Assembly, provides that: "The provisions of this Act shall not affect or abate the status as a crime of any such act or omission which occurred prior to the effective date of the Act repealing, repealing and reenacting, or amending such law, nor shall the prosecution of such crime be abated as a result of such repeal, repeal and reenactment, or amendment."
Law reviews.- For article recommending more consistency in age requirements of laws pertaining to the welfare of minors, see 6 Ga. St. B. J. 189 (1969). For survey article on criminal law and procedure, see 34 Mercer L. Rev. 89 (1982). For annual survey of criminal law and procedure, see 35 Mercer L. Rev. 103 (1983). For annual survey article discussing developments in criminal law, see 51 Mercer L. Rev. 209 (1999). For annual survey article, "Georgia Death Penalty Law," see 52 Mercer L. Rev. 29 (2000). For article, "State v. Jackson and the Explosion of Liability for Felony Murder," see 62 Mercer L. Rev. 1335 (2011). For article, "Killers Shouldn't Inherit from their Victims - Or Should They?," see 48 Ga. L. Rev. 145 (2013). For annual survey of criminal law, see 67 Mercer L. Rev. 31 (2015). For note discussing the felony murder rule, and proposing legislation to place limitations on Georgia's felony murder statute, see 9 Ga. St. B. J. 462 (1973). For note, "An Unconstitutional Fiction: The Felony Murder Rule as Applied to the Supply of Drugs," see 20 Ga. L. Rev. 671 (1986). For note, "Edge v. State: The Modified Merger Rule Comes Up Short," see 44 Mercer L. Rev. 697 (1993). For comment on Battle v. State, 37 Ga. App. 154, 139 S.E. 159 (1927), see 1 Ga. B. J. 51 (1927). For comment on Springer v. State, 37 Ga. App. 154, 139 S.E. 159 (1927), see 1 Ga. B. J. 51 (1927). For comment on Head v. State, 68 Ga. App. 759, 24 S.E.2d 145 (1943), holding year and a day rule applicable in Georgia as a matter of procedure and evidence, see 9 Ga. B. J. 320 (1947). For comment on Gaines v. Wolcott, 119 Ga. App. 313, 167 S.E.2d 366 (1969), see 21 Mercer L. Rev. 325 (1969). For comment on Baker v. State, 236 Ga. 754, 225 S.E.2d 269 (1976), see 28 Mercer L. Rev. 371 (1976).
JUDICIAL DECISIONSANALYSIS
General Consideration
Editor's notes.
- In light of the similarity of the statutory provisions, decisions under former Code 1863, §§ 4218, 4219, former Code 1868, §§ 4255, 4256, former Code 1873, §§ 4321, 4322, former Code 1882, §§ 4321, 4322, former Penal Code 1895, §§ 61, 62, former Penal Code 1910, §§ 61, 62, and former Code 1933, §§ 26-1003, 26-1004 are included in the annotations for this Code section.
Constitutionality.
- O.C.G.A. § 16-5-1, the murder statute, and O.C.G.A. § 17-10-30, which authorizes a death sentence for murder, are not unconstitutional. Speed v. State, 270 Ga. 688, 512 S.E.2d 896 (1999).
Defendant's malice murder conviction was affirmed as O.C.G.A. § 16-5-1 was constitutional. Thomason v. State, 281 Ga. 429, 637 S.E.2d 639 (2006).
Felony murder defendant's constitutional challenge to Georgia's homicide statutes, O.C.G.A. §§ 16-5-1 and16-5-2, could not be reviewed because the challenge was raised for the first time in the defendant's amended motion for new trial. Such challenges could not be raised after a guilty verdict. Brown v. State, 285 Ga. 772, 683 S.E.2d 581 (2009), overruled on other grounds by State v. Lane, 2020 Ga. LEXIS 98 (Ga. 2020).
Defendant's challenge to the constitutionality of the murder statute failed because the language of the statute placed all persons on notice that they commit murder by committing a felony that causes the death of another. Davis v. State, 306 Ga. 140, 829 S.E.2d 321 (2019).
Murder statute was not unconstitutional as applied to the defendant because fairness and considerations of prosecutorial discretion in charging co-conspirators who testify for the state were not considerations in determining whether the statute was unconstitutional as applied. Davis v. State, 306 Ga. 140, 829 S.E.2d 321 (2019).
Definition of "crime."
- Although "criminal negligence" was not an issue in a murder trial, the trial court did not err by employing the entirety of the language of O.C.G.A. § 16-2-21 in its charge to the jury on the general definition of "crime." Harper v. State, 182 Ga. App. 760, 357 S.E.2d 117 (1987).
Elements of crime of murder in Georgia are (1) unlawfully (2) causing death of another human being (3) with malice aforethought. Holloway v. McElroy, 474 F. Supp. 1363 (M.D. Ga. 1979), aff'd, 632 F.2d 605 (5th Cir. 1980), cert. denied, 451 U.S. 1028, 101 S. Ct. 3019, 69 L. Ed. 2d 398 (1981), overruled on other grounds, Baker v. Montgomery, 811 F.2d 55 (11th Cir. 1987); Mason v. Balkcom, 487 F. Supp. 554 (M.D. Ga. 1980), rev'd on other grounds, 669 F.2d 222 (5th Cir. 1982), cert. denied, 460 U.S. 1016, 103 S. Ct. 1260, 75 L. Ed. 2d 487 (1983); Wilcox v. Ford, 626 F. Supp. 760 (M.D. Ga. 1985), aff'd in part, vacated in part on other grounds, 813 F.2d 1140 (11th Cir.), cert. denied, 484 U.S. 925, 108 S. Ct. 287, 98 L. Ed. 2d 246 (1987).
There can be no murder without malice express or implied. Shafer v. State, 193 Ga. 748, 20 S.E.2d 34 (1942) (decided under former Code 1933, §§ 26-1003, 26-1004).
Mere negligent killing, without more, may not amount to murder. Patterson v. State, 181 Ga. 698, 184 S.E. 309 (1936) (decided under former Code 1933, §§ 26-1003, 26-1004).
Both intent and malice are essential elements of the crime of murder in Georgia. Stephens v. Kemp, 846 F.2d 642 (11th Cir.), cert. denied, 488 U.S. 872, 109 S. Ct. 189, 102 L. Ed. 2d 158 (1988).
Premeditation is not a specific element of malice murder; in fact, malice need not be formed until immediately prior to the slaying. Blake v. Zant, 513 F. Supp. 772 (S.D. Ga. 1981), rev'd on other grounds sub nom. Burger v. Zant, 718 F.2d 979 (11th Cir. 1983), vacated, 467 U.S. 1212, 104 S. Ct. 2652, 81 L. Ed. 2d 360 (1984), cert. denied, 474 U.S. 998, 106 S. Ct. 374, 88 L. Ed. 2d 367 (1985).
Difference between malice murder and felony murder is absence of intent and malice in latter. Burke v. State, 234 Ga. 512, 216 S.E.2d 812 (1975).
It is absence of malice which differentiates manslaughter from murder.
- If at time of killing the circumstances are such as to exclude malice, then homicide cannot be murder. Parker v. State, 218 Ga. 654, 129 S.E.2d 850 (1963) (decided under former Code 1933, §§ 26-1003, 26-1004).
"Year-and-a-day rule" no longer viable.
- Because the "year-and-a-day rule," which allowed the quashing of an indictment on the ground that death did not occur within a year and a day of the injury caused by the defendant, was not included as part of what was intended to be a comprehensive criminal code, the adoption of the criminal code in 1968 ended the viability of the rule in Georgia. State v. Cross, 260 Ga. 845, 401 S.E.2d 510 (1991).
Deprivation statute cannot be used as predicate offense for felony murder.
- After looking at both the plain language of the statutes, as well as the sequence of their adoption, the felony deprivation statute could not be used as a predicate offense for felony murder as the clear language of O.C.G.A. § 16-12- 1(d.1)(1) and (e) specifically criminalizes the death of a minor resulting from an accused's contribution to the deprivation or delinquency of that child, whereas felony murder criminalizes general felony conduct resulting in death of another. Williams v. State, 299 Ga. 632, 791 S.E.2d 55 (2016).
Deprivation statute cannot be used as predicate offense for felony murder.
- Trial court's denial of appellant's demurrer to count one of the indictment was reversed because the plain language of O.C.G.A. § 16-12-1 establishes that the felony deprivation statute cannot be used as a predicate offense for felony murder. Williams v. State, 299 Ga. 632, 791 S.E.2d 55 (2016).
Arrest warrant for murder supported by probable cause.
- Arrest warrant for murder was supported by probable cause as the record clearly showed that the magistrate issuing the warrant was provided the officer's affidavit and was informed by the same officer that a surviving victim had identified the appellant from a photographic line-up as one of the shooters and the appellant's identification and use of a gun during the shooting were corroborated by the facts and circumstances officers had gathered from witnesses and evidence at the scene of the shooting. Williams v. State, 298 Ga. 538, 783 S.E.2d 594 (2016).
Burglary and murder as included offenses for double jeopardy purposes.
- For substantive double-jeopardy purposes, neither a burglary conviction nor a murder conviction is a lesser included offense within the other, since proof of additional elements must necessarily be shown to establish each crime. Cash v. State, 258 Ga. 460, 368 S.E.2d 756 (1988).
Sufficiency of indictment for malice murder and felony murder.
- Trial counsel was not ineffective in failing to challenge the sufficiency of the indictment charging malice murder and felony murder as unconstitutionally vague because the defendant's counsel reviewed the indictment and believed that the indictment was not vague, overbroad, or subject to dismissal; each of the murder counts tracked the language of the applicable statute and alleged the essential elements of the offense charged; and the indictment provided the date and county of the offense and the identity of the victim, and, in terms clear enough to be easily understood by the jury and by the accused, charged the defendant with acting in concert with the co-defendant to kill the victim by beating and stabbing the victim to death. Smith v. State, 303 Ga. 643, 814 S.E.2d 411 (2018).
Proof of any particular motive is not essential to establish crime of murder. Phillips v. State, 207 Ga. 336, 61 S.E.2d 473 (1950) (decided under former Code 1933, §§ 26-1003, 26-1004).
While motive is strong evidence of murder, it is not an essential element of it, and need not be proved where other elements exist. Carson v. State, 80 Ga. 170, 5 S.E. 295 (1887) (decided under former Code 1882, §§ 4321, 4322); Barnett v. State, 136 Ga. 65, 70 S.E. 868 (1911) (decided under former Penal Code 1910, §§ 61, 62).
Failure of evidence to show motive for homicide does not render conviction unlawful. Hancock v. State, 196 Ga. 351, 26 S.E.2d 760 (1943) (decided under former Code 1933, §§ 26-1003, 26-1004).
Evidence of motive admissible.
- As the defendant, a sheriff, was not empowered to use the sheriff's department as a personal domain, evidence of corruption in the sheriff's office was relevant and admissible, and the prosecution was well within bounds when it theorized that the defendant killed the victim, a political opponent, to prevent the victim from uncovering evidence of the defendant's corruption. Dorsey v. State, 279 Ga. 534, 615 S.E.2d 512 (2005).
Alleged evidence of a same or similar nature committed by a codefendant was properly excluded as the defendant's proffered evidence, via the testimony of the two victims of the other crime, failed to identify the codefendant as the perpetrator of said crime, and the defendant offered no evidence independent of these witnesses in an attempt to establish that the codefendant actually committed the other crime in question; moreover, the motive for the other crime and the murder and armed robbery the defendant was charged with were different. Carr v. State, 279 Ga. 271, 612 S.E.2d 292 (2005).
Abuse of discretion to reject defendant's offer to stipulate status as convicted felon.
- When a defendant's prior conviction is of the nature likely to inflame the passions of the jury and raise the risk of a conviction based on improper considerations, and the purpose of the evidence is solely to prove the defendant's status as a convicted felon, then it is an abuse of discretion for the trial court to spurn the defendant's offer to stipulate to the defendant's prior conviction and admit the evidence to the jury. In this case, the nature of the defendant's prior conviction could raise the risk of a verdict tainted by improper considerations and the evidence was unnecessary to prove anything other than the defendant's status as a convicted felon; however, due to the overwhelming evidence of the defendant's guilt, the error was deemed harmless. Ross v. State, 279 Ga. 365, 614 S.E.2d 31 (2005).
Personal ill will unnecessary.
- To constitute murder, it is unnecessary that defendant should entertain personal ill will toward deceased. Revel v. State, 26 Ga. 275 (1858) (decided under former law).
Motive is not an element of the offense of murder. Cook v. State, 255 Ga. 565, 340 S.E.2d 843, cert. denied, 479 U.S. 871, 107 S. Ct. 241, 93 L. Ed. 2d 166 (1986).
Appropriate test of mental capacity in trial for murder and aggravated assault is whether the accused is capable of distinguishing between right and wrong at the time of the commission of the offense. Duck v. State, 250 Ga. 592, 300 S.E.2d 121 (1983).
Soundness of mind in perpetration of act is prerequisite to murder.
- It is, in all crimes, one of the ingredients of the offense that there shall be a joint operation of act and intent, and an insane person cannot, in a legal sense, have any intent; indeed, in murder, soundness of mind, in perpetration of act, is part of the definition of the crime. Handspike v. State, 203 Ga. 115, 45 S.E.2d 662 (1947), overruled on other grounds, Brooks v. State, 247 Ga. 744, 279 S.E.2d 649 (1981) (decided under former Code 1933, §§ 26-1003, 26-1004).
Child cannot be subject of homicide until it has existence independent of its mother. Shedd v. State, 178 Ga. 653, 173 S.E. 847 (1934) (decided under former Code 1933, §§ 26-1003, 26-1004).
To convict for murder of newly born baby, it is incumbent upon state to prove that child was born alive and had an independent and separate existence from its mother, and that it was slain by accused. Montgomery v. State, 202 Ga. 678, 44 S.E.2d 242 (1947) (decided under former Code 1933, §§ 26-1003, 26-1004).
There was no evidence presented that the defendant committed the crime of malice murder of a victim's unborn child in violation of O.C.G.A. § 16-5-1(a) because the only evidence was that the unborn child was alive solely in the mother's uterus, died due to the death of the mother, and never had an independent circulation or other evidence of independent existence. Pineda v. State, 288 Ga. 612, 706 S.E.2d 407 (2011).
What constitutes existence of child independent of mother.
- For a child to exist independent of its mother generally requires that the umbilical cord be severed and independent circulation established. Ordinarily, if the child has breathed, this would show independent life, but this test is not infallible. Sometimes infants breathe before they are fully delivered, and sometimes they do not breathe for quite a perceptible period after delivery. Generally, however, if respiration is established, that also establishes an independent circulation and independent existence. Shedd v. State, 178 Ga. 653, 173 S.E. 847 (1934) (decided under former Code 1933, §§ 26-1003, 26-1004).
Corpus delicti and perpetration of offense by accused may be shown by circumstantial or direct evidence. Wright v. State, 199 Ga. 576, 34 S.E.2d 879 (1945) (decided under former Code 1933, §§ 26-1003, 26-1004).
Wound sufficient to cause death.
- Absent signs of accident or suicide, wound sufficient to cause death proves corpus delicti. Thomas v. State, 67 Ga. 460 (1881) (decided under former Code 1873, §§ 4321, 4322).
Wound from hit and run sufficiently showed proximate cause.
- Evidence was sufficient to authorize a rational trier of fact to find beyond a reasonable doubt that the defendant was guilty of murder based on the medical examiner testifying that the victim died from an embolism caused by the defendant's hit-and-run injuries inflicted upon the victim, which was consistent with a finding of proximate cause. Taylor v. State, 303 Ga. 624, 814 S.E.2d 353 (2018).
Prima facie case of murder.
- In prosecution for murder the state establishes a prima facie case when it produces evidence sufficient to show that defendant killed deceased in manner alleged in indictment, and thereby shifts to defendant burden of going forward with evidence to show justification or such mitigating facts as would reduce grade of homicide from murder to a lesser offense where state's evidence does not within itself show such justification or mitigation. Delegal v. State, 92 Ga. App. 744, 90 S.E.2d 32 (1955) (decided under former Code 1933, §§ 26-1003, 26-1004).
When state proves that accused killed person named in indictment, in county and in manner therein described, a prima facie case of murder is made out. Rickerson v. State, 10 Ga. App. 464, 73 S.E. 681 (1912) (decided under former Penal Code 1910, §§ 61, 62).
Valid confession, corroborated by proof of corpus delicti.
- Confession of guilt, freely, and voluntarily made by accused, is direct evidence of highest character and sufficient to authorize verdict of guilty on a charge of murder, when corroborated by proof of corpus delicti. Seymour v. State, 210 Ga. 571, 81 S.E.2d 808 (1954) (decided under former Code 1933, §§ 26-1003, 26-1004).
Proof of killing without evidence of justification or mitigation shifts burden to defendant to establish defense and mere fact that there was a previous quarrel and fight does not, without more, establish mutual intent to fight. Cone v. State, 193 Ga. 420, 18 S.E.2d 850 (1942) (decided under former Code 1933, §§ 26-1003, 26-1004).
Defendant's admissions at trial negate need for further proof by state.
- In a homicide case, proof of corpus delicti must not only show that a person was killed, but must also identify the person. These elements must appear from proof other than extrajudicial confessions or admissions alone; but if defendant in defendant's statement made on trial admits them, state is not required to make further proof of them. Wall v. State, 5 Ga. App. 305, 63 S.E. 27 (1908) (decided under former Penal Code 1895, §§ 61, 62).
Requirements for accepting guilty plea.
- State trial courts need not specifically address each individual element required under O.C.G.A. § 16-5-1 in order to accept a guilty plea. The judge need only explain the statute sufficiently to give the defendant real and adequate notice of the nature of the charge against defendant or find proof that the defendant in fact understood the charge. Moore v. Balkcom, 716 F.2d 1511 (11th Cir. 1983), supplemented by 722 F.2d 629 (11th Cir. 1983), cert. denied, 465 U.S. 1084, 104 S. Ct. 1456, 79 L. Ed. 2d 773 (1984).
Defendant's conviction for malice murder, which was based upon a guilty plea, was reversed because the record did not show that the defendant was advised of the right against self-incrimination as required by Boykin; the state did not fulfill the state's duty to ensure that the defendant's guilty plea was constitutionally valid, the state apparently did not ensure that the defendant was advised of and had effective representation regarding the right to appeal the conviction, and the state did not litigate the merits of the defendant's guilty plea in the habeas corpus hearings since the record could have been expanded. Tyner v. State, 289 Ga. 592, 714 S.E.2d 577 (2011).
Malice murder conviction, entered upon guilty plea, was not void.
- Trial court properly denied the defendant's motion to vacate a malice murder conviction, entered upon a guilty plea, as: (1) the defendant's claim that the conviction preceded the indictment, and hence that the trial court lacked jurisdiction to hear the plea, was belied by the record; and (2) only a request for a competency evaluation was made, with which the trial court complied, and not a special plea of mental incompetency, which would have triggered a right to a competency hearing prior to the court's acceptance of the defendant's guilty plea. Jones v. State, 282 Ga. 568, 651 S.E.2d 728 (2007).
Motion to withdraw guilty plea denied.
- Trial court did not abuse the court's discretion in denying the defendant's motion to withdraw the defendant's guilty pleas; the defendant's claim that the defendant was not advised on the record as to the mandatory minimum sentences for murder and felony murder before pleading guilty and that defense counsel told the defendant that the defendant was taking a 20-year sentence and might serve 15 years was belied by the record, although the words "mandatory minimum sentence" were not used. Bradley v. State, 305 Ga. 857, 828 S.E.2d 322 (2019).
Incorporation in one count of different ways of committing offense.
- When one offense could be committed in several ways, that is, felony murder and murder with malice, it is permissible to incorporate the different ways in one count. Leutner v. State, 235 Ga. 77, 218 S.E.2d 820 (1975).
Malice murder by vehicle, just as malice murder by other means, may be prosecuted under former Code 1933, § 26-1101. State v. Foster, 141 Ga. App. 258, 233 S.E.2d 215, aff'd, 239 Ga. 302, 236 S.E.2d 644 (1977) (see O.C.G.A. § 16-5-1).
Vehicular homicide statute, O.C.G.A. § 40-6-393, does not preclude a malice murder charge in vehicular deaths. Chester v. State, 262 Ga. 85, 414 S.E.2d 477 (1992).
Malice murder and felony murder not mutually exclusive.
- Presence or absence of malice is irrelevant to the commission of felony murder; therefore, the offenses are not mutually exclusive as a matter of law. Knight v. State, 271 Ga. 557, 521 S.E.2d 819 (1999).
Evidence sufficient for malice murder and felony murder.
- Evidence that the defendant was in the victim's home after a neighbor heard glass breaking and called9-1-1, that a ribbon from the defendant's home was used to strangle the victim, that both the victim's and the defendant's DNA were on the ribbon, and that the victim's wedding ring was found in the defendant's pocket supported defendant's convictions for malice murder and felony murder. Muhammad v. State, 290 Ga. 880, 725 S.E.2d 302 (2012).
Evidence was sufficient to convict the defendant of malice murder, felony murder, aggravated assault, and possession of a firearm during the commission of a felony, all with regard to the shooting death of the victim because, after firing a handgun into the ground, the defendant followed the victim to the victim's home; the defendant shot the victim six times, even while the victim was attempting to run away; and the defendant admitted to shooting the victim and that the defendant never saw the victim with a gun. Tepanca v. State, 297 Ga. 47, 771 S.E.2d 879 (2015).
Because the defendant's sentence of life imprisonment was appropriate for both felony murder and malice murder, the defendant suffered no harm from the trial court's action in vacating the malice murder conviction and retaining the felony murder conviction when the court merged those convictions. Tepanca v. State, 297 Ga. 47, 771 S.E.2d 879 (2015).
Vehicular homicide must now be prosecuted under the vehicular homicide statute, former Code 1933, § 68A-903 (see O.C.G.A. § 40-6-393) or the murder statute, former Code 1933, § 26-1101 (see O.C.G.A. § 16-5-1). State v. Foster, 141 Ga. App. 258, 233 S.E.2d 215, aff'd, 239 Ga. 302, 236 S.E.2d 644 (1977).
Murder and manslaughter, both voluntary and involuntary, are grades of unlawful homicide. Perry v. State, 78 Ga. App. 273, 50 S.E.2d 709 (1948) (decided under former Code 1933, §§ 26-1003, 26-1004).
Distinguishing voluntary manslaughter.
- Intent to kill is an essential element of both murder and voluntary manslaughter; provocation, or the lack thereof, is what distinguishes the two offenses. Parks v. State, 254 Ga. 403, 330 S.E.2d 686 (1985).
Double jeopardy did not bar retrial.
- Defendant's acquittal on felony murder under O.C.G.A. § 16-5-1(c) and aggravated assault under O.C.G.A. § 16-5-21 did not bar retrial on a voluntary manslaughter charge under O.C.G.A. § 16-5-2(a) as the collateral estoppel doctrine under the Double Jeopardy Clause, U.S. Const., amend. 5, and Ga. Const. 1983, Art. I, Sec. I, Para. XVIII, did not apply because voluntary manslaughter required proof of an element not found in felony murder or aggravated assault, and aggravated assault with a deadly weapon and voluntary manslaughter were mutually exclusive. Roesser v. State, 316 Ga. App. 850, 730 S.E.2d 641 (2012).
Involuntary manslaughter as lesser included offense.
- not giving a charge to the jury on involuntary manslaughter as a lesser included offense of murder where defendant did not request the charge nor object at trial to its absence. Kilpatrick v. State, 255 Ga. 344, 338 S.E.2d 274 (1986).
Words, threats, menaces or contemptuous gestures.
- Unlawful killing of one who has given slayer no provocation other than use of words, threats, menaces, or contemptuous gestures cannot be graded as voluntary manslaughter under doctrine of mutual combat. Cone v. State, 193 Ga. 420, 18 S.E.2d 850 (1942) (decided under former Code 1933, §§ 26-1003, 26-1004).
Killing officer to prevent illegal arrest may constitute manslaughter, but not murder. Thomas v. State, 91 Ga. 204, 18 S.E. 305 (1892) (decided under former Penal Code 1910, §§ 61, 62).
Admission of evidence of drug use was proper.
- Defendant was properly convicted for felony murder, malice murder, and aggravated assault because the defendant was seen twice beating a person with a pipe and yelling at the person regarding drugs, and because the person died as a result of injuries from that beating two days later. Admission at the defendant's trial of use of drugs was proper because it was not admitted purely to impugn the defendant's character, but was relevant as to motive. Dyers v. State, 277 Ga. 859, 596 S.E.2d 595 (2004).
Admissions of adultery coupled with conduct as reducing homicide to manslaughter. While it has been held that a mere admission by one spouse to the other spouse of an adulterous relationship with another person will not reduce homicide to manslaughter, admissions, coupled with conduct, or conduct alone, may do so. Campbell v. State, 204 Ga. 399, 49 S.E.2d 867 (1948) (decided under former Code 1933, §§ 26-1003, 26-1004).
Simply being drunk and killing another in passion cannot reduce crime from murder to manslaughter. Bradberry v. State, 170 Ga. 859, 154 S.E. 344 (1930) (decided under former Penal Code 1910, §§ 61, 62).
Prospective juror properly excluded on basis of bias.
- When the defendant was convicted of malice murder, the trial court did not err in excusing for cause a prospective juror who was acquainted with defense counsel as the juror's statement that the juror worked with a criminal defense firm, and could not give the state a fair hearing clearly established a leaning or bias on the part of the juror, which made the juror subject to being excused for cause. Bell v. State, 276 Ga. 206, 576 S.E.2d 876 (2003).
Photographs showing victim's injuries properly admitted.
- In a trial for murder of a child by malnutrition and child abuse, it was not error to admit into evidence 14 pre-autopsy photographs and one post-autopsy photograph of the child's body. Such exhibits were not unnecessarily repetitious, gruesome, and inflammatory, but were clearly relevant and admissible to show both the extent of the injuries and the extent of the neglect and malnutrition from which the child had suffered. While it was true that two of the photographs appeared to be identical and certain others somewhat repetitious, such duplication in and of itself did not result in undue prejudice to the defendant. Lewis v. State, 180 Ga. App. 369, 349 S.E.2d 257 (1986).
Defendant's motion for a mistrial based on the admission of a photograph of the victim's head was not an abuse of discretion as: (1) if pre-autopsy photographs were relevant and material to any issue in the case, they were admissible even if they were duplicative and might inflame the jury; (2) photographs showing the extent and nature of the victim's wounds were material and relevant, even if the cause of death was not in dispute; (3) the state had the burden to prove beyond a reasonable doubt that the defendant caused the death of the victim with malice aforethought; and (4) the photograph was relevant to the state's claim that the defendant had done so by shooting a single shot into the victim's head with a .38 revolver. Bradley v. State, 281 Ga. 173, 637 S.E.2d 19 (2006).
Verdict of manslaughter constitutes acquittal of murder.
- Finding accused guilty of manslaughter on indictment for murder is an acquittal of the charge of murder, and if the court is of the opinion that finding was wrong, and ought to have been for murder, it cannot grant a new trial. Jordan v. State, 22 Ga. 545 (1857) (decided under former law).
Error in charging on law relating to malice, either express or implied, or murder is not ground for new trial to one convicted of manslaughter. Loftin v. State, 30 Ga. App. 105, 117 S.E. 471 (1923) (decided under former Penal Code 1910, §§ 61, 62).
When one is charged with murder, in which malice must exist either express or implied, but is convicted of a lower grade of that offense, to wit, voluntary manslaughter, in which malice is not an element, an erroneous charge on the question of malice is prima facie harmless to accused and a new trial will not be granted therefor unless it is plainly shown that the erroneous charge wrongfully led to or influenced the verdict rendered. Jones v. State, 52 Ga. App. 83, 182 S.E. 527 (1935) (decided under former Code 1933, §§ 26-1003, 26-1004).
Refusal to charge upon principle of law which is solely applicable to crime of murder cannot be a ground for reversing judgment where conviction is of voluntary manslaughter, which is tantamount to acquittal of charge of murder. Goldsmith v. State, 54 Ga. App. 268, 187 S.E. 694 (1936) (decided under former Code 1933, §§ 26-1003, 26-1004).
Having been indicted for murder and convicted of voluntary manslaughter, the verdict was an acquittal of the charge of murder and the defendant cannot complain of alleged errors in the court's instructions upon the law of murder. Cook v. State, 56 Ga. App. 375, 192 S.E. 631 (1937) (decided under former Code 1933, §§ 26-1003, 26-1004).
Scientific evidence properly admitted.
- In a murder prosecution, because the undisputed evidence showed that the mitochondrial DNA (mtDNA) analysis was based on sound scientific theory and produced reliable results when proper procedures were followed, and the "direct sequencing" method employed in the prosecution of the defendant for murder was the only technique accepted and used by those who conducted forensic mtDNA testing, as that technique produced reliable results upon which any practitioner could draw conclusions, the trial court did not err in allowing the evidence. Vaughn v. State, 282 Ga. 99, 646 S.E.2d 212 (2007).
Admission of prejudicial unrelated evidence was abuse of discretion.
- Although the evidence presented at trial was sufficient to convict the defendant of malice murder, the defendant was entitled to a new trial because the trial court abused the court's discretion in admitting evidence regarding guns and ammunition found in the defendant's home when the defendant was arrested nine days after a shooting; the guns and ammunition were totally unrelated to the shooting, the items were not probative of the defendant's guilt, and the state's attempt to use the evidence to establish that the defendant had a propensity to violence was improper. Nichols v. State, 282 Ga. 401, 651 S.E.2d 15 (2007).
When conviction is for voluntary manslaughter, exclusion of evidence rebutting presumption of malice is harmless. Carter v. State, 2 Ga. App. 254, 58 S.E. 532 (1907) (decided under former Penal Code 1895, §§ 61, 62).
Cruelty to child not lesser included offense.
- Offense of cruelty to children requires proof that the victim was younger than eighteen, whereas the offense of malice murder only requires proof that the victim was a human being. Accordingly, to prove cruelty to children, at least one fact - the age of the victim - had to be established in addition to the facts used to establish malice murder, and the offense of cruelty to children therefore was not included as a matter of fact in the offense of malice murder. McCartney v. State, 262 Ga. 156, 414 S.E.2d 227 (1992), overruled on other grounds, 287 Ga. 881, 700 S.E.2d 394 (2010).
Evidence sufficient to convict.
- Evidence was sufficient to support the first defendant and the second defendant's convictions for murder, kidnapping, armed robbery, and burglary, as the evidence showed that the defendants were involved in a scheme to rob a person who they believed to be selling large amounts of marijuana from an apartment, that the defendants burst into the apartment brandishing guns, that one of the defendants fatally shot the victim, and that the other defendant forced two people present to lie on the ground and divulge the location of a safe in the apartment that held money and marijuana. Howard v. State, 279 Ga. 166, 611 S.E.2d 3 (2005).
Defendant's murder conviction was supported by evidence showing that an eyewitness walked into a vacant house, saw the defendant and another man holding the crying victim at gunpoint and arguing with the victim over a drug debt, and then saw the defendant shoot the victim; it was the jury's role to determine whether the witness, a drug addict and a convicted felon, was credible. Flowers v. State, 291 Ga. 122, 728 S.E.2d 196 (2012).
Evidence was sufficient to support defendant's convictions for felony murder and armed robbery. One witness testified that the witness saw the defendant and the defendant's accomplice chasing the victim just prior to the shooting, while other witnesses testified that they saw the defendant and the defendant's accomplice fleeing the scene. Milford v. State, 291 Ga. 347, 729 S.E.2d 352 (2012).
Evidence that the defendant, who threatened to kill the victim in the past, took the victim to a retention pond, shot the victim, wrapped the body with a large boulder, placed the victim in a retention pond, and, for days, misled the victim's mother and authorities about the victim's whereabouts was sufficient to support convictions for malice murder, felony murder, feticide, aggravated assault, and possession of a firearm. Platt v. State, 291 Ga. 631, 732 S.E.2d 75 (2012).
Jury could reasonably have inferred from the evidence that the defendant and the alleged shooter shared a criminal intent with respect to the shooting, as the two were in the car at the time of the shooting, stood at the front of the car together after the shooting, and eventually made their way to the same place. Powell v. State, 291 Ga. 743, 733 S.E.2d 294 (2012).
Murder defendant's claim that there was an insufficient factual basis for the defendant's guilty plea was belied by the state's evidence that the defendant and others placed a food order at a vacant home with a plan to rob the driver; the delivery driver was shot and killed; the co-indictees stated that the defendant was the shooter; and the gun was found at the defendant's home. Oliver v. State, 308 Ga. 652, 842 S.E.2d 847 (2020).
Claim of error waived on appeal when exclusion of evidence not raised at trial.
- On appeal from convictions for murder and aggravated assault, the defendant waived any error regarding the exclusion of a videotaped statement on appeal, which the defendant claimed would have supported a voluntary manslaughter theory, by failing to raise the claim specifically at trial. Johnson v. State, 282 Ga. 96, 646 S.E.2d 216 (2007).
Murder cases treated differently in appeal bond.
- Georgia Supreme Court recognizes that the Georgia General Assembly has chosen to treat murder cases differently in O.C.G.A. § 5-7-5, and trial courts must be allowed some level of discretion to deny requests for bail pending appeals by the state in such cases; that discretion of trial courts in these cases should be governed by the standards for deciding whether to grant pretrial bail. Johnson v. State, 304 Ga. 369, 818 S.E.2d 601 (2018).
Cited in Gaines v. Wolcott, 119 Ga. App. 313, 167 S.E.2d 366 (1969); Teal v. State, 122 Ga. App. 532, 177 S.E.2d 840 (1970); Evans v. State, 227 Ga. 571, 181 S.E.2d 845 (1971); Pass v. State, 227 Ga. 730, 182 S.E.2d 779 (1971); Witt v. State, 124 Ga. App. 535, 184 S.E.2d 517 (1971); Fisher v. Stynchcombe, 336 F. Supp. 1308 (N.D. Ga. 1972); Foster v. State, 230 Ga. 666, 198 S.E.2d 847 (1973); K.M.S. v. State, 129 Ga. App. 683, 200 S.E.2d 916 (1973); Caldwell v. Beard, 232 Ga. 701, 208 S.E.2d 564 (1974); Gaines v. State, 232 Ga. 727, 208 S.E.2d 798 (1974); Cain v. State, 232 Ga. 804, 209 S.E.2d 158 (1974); Hilton v. State, 233 Ga. 11, 209 S.E.2d 606 (1974); Proveaux v. State, 233 Ga. 456, 211 S.E.2d 747 (1974); Barker v. State, 233 Ga. 781, 213 S.E.2d 624 (1975); Favors v. State, 234 Ga. 80, 214 S.E.2d 645 (1975); Chenault v. State, 234 Ga. 216, 215 S.E.2d 223 (1975); Davis v. State, 234 Ga. 730, 218 S.E.2d 20 (1975); Sheppard v. State, 235 Ga. 89, 218 S.E.2d 830 (1975); McCullough v. State, 137 Ga. App. 325, 223 S.E.2d 729 (1976); Cromer v. State, 238 Ga. 425, 233 S.E.2d 158 (1977); Scott v. State, 239 Ga. 130, 236 S.E.2d 75 (1977); State v. Holmes, 142 Ga. App. 847, 237 S.E.2d 406 (1977); Hawes v. State, 239 Ga. 630, 238 S.E.2d 418 (1977); Harrison v. State, 143 Ga. App. 883, 240 S.E.2d 263 (1977); Smith v. State, 242 Ga. 224, 248 S.E.2d 634 (1978); Grace v. Hopper, 566 F.2d 507 (5th Cir. 1978); Taylor v. Hopper, 596 F.2d 1284 (5th Cir. 1979); Godfrey v. Georgia, 446 U.S. 420, 100 S. Ct. 1759, 64 L. Ed. 2d 398 (1980); Franklin v. State, 245 Ga. 141, 263 S.E.2d 666 (1980); Hardy v. State, 245 Ga. 272, 264 S.E.2d 209 (1980); Dampier v. State, 245 Ga. 427, 265 S.E.2d 565 (1980); Pitts v. State, 153 Ga. App. 666, 266 S.E.2d 321 (1980); Causey v. State, 154 Ga. App. 76, 267 S.E.2d 475 (1980); Lewis v. State, 246 Ga. 101, 268 S.E.2d 915 (1980); Hosch v. State, 246 Ga. 417, 271 S.E.2d 817 (1980); Jones v. State, 247 Ga. 268, 275 S.E.2d 67 (1981); Jordan v. State, 247 Ga. 328, 276 S.E.2d 224 (1981); Holt v. State, 247 Ga. 648, 278 S.E.2d 390 (1981); McMillan v. State, 157 Ga. App. 694, 278 S.E.2d 478 (1981); Gilreath v. State, 247 Ga. 814, 279 S.E.2d 650 (1981); Moore v. State, 158 Ga. App. 579, 281 S.E.2d 322 (1981); Daniel v. State, 248 Ga. 271, 282 S.E.2d 314 (1981); Wallace v. State, 248 Ga. 255, 282 S.E.2d 325 (1981); Jackson v. State, 248 Ga. 480, 284 S.E.2d 267 (1981); United States v. Peacock, 654 F.2d 339 (5th Cir. 1981); McCorquodale v. Balkcom, 525 F. Supp. 408 (N.D. Ga. 1981); Young v. Zant, 677 F.2d 792 (11th Cir. 1982); Mitchell v. Hopper, 538 F. Supp. 77 (S.D. Ga. 1982); Maynor v. Green, 547 F. Supp. 264 (S.D. Ga. 1982); Hance v. Zant, 696 F.2d 940 (11th Cir. 1983); Cape v. Francis, 558 F. Supp. 1207 (M.D. Ga. 1983); Carter v. State, 252 Ga. 502, 315 S.E.2d 646 (1984); Boyd v. State, 253 Ga. 515, 322 S.E.2d 256 (1984); Drake v. Francis, 727 F.2d 990 (11th Cir. 1984); Cape v. Francis, 741 F.2d 1287 (11th Cir. 1984); Jones v. State, 253 Ga. 640, 322 S.E.2d 877 (1984); Crawford v. State, 254 Ga. 435, 330 S.E.2d 567 (1985); Williams v. State, 255 Ga. 21, 334 S.E.2d 691 (1985); Cox v. State, 180 Ga. App. 820, 350 S.E.2d 828 (1986); McCleskey v. Kemp, 481 U.S. 279, 107 S. Ct. 1756, 95 L. Ed. 2d 262 (1987); Richie v. State, 258 Ga. 361, 369 S.E.2d 740 (1988); Baisden v. State, 258 Ga. 425, 369 S.E.2d 762 (1988); Mundy v. State, 259 Ga. 634, 385 S.E.2d 666 (1989); Kinsman v. State, 259 Ga. 89, 376 S.E.2d 845 (1989); Broomall v. State, 260 Ga. 220, 391 S.E.2d 918 (1990); Spencer v. State, 260 Ga. 640, 398 S.E.2d 179 (1990); Ferrell v. State, 261 Ga. 115, 401 S.E.2d 741 (1991); Potts v. State, 261 Ga. 716, 410 S.E.2d 89 (1991); Davis v. Thomas, 261 Ga. 687, 410 S.E.2d 110 (1991); Gooden v. State, 261 Ga. 691, 410 S.E.2d 113 (1991); Grace v. State, 262 Ga. 746, 425 S.E.2d 865 (1993); Dunn v. State, 263 Ga. 343, 434 S.E.2d 60 (1993); Lattimore v. State, 265 Ga. 102, 454 S.E.2d 474 (1995); Williams v. State, 270 Ga. 125, 508 S.E.2d 415 (1998); Rhode v. State, 274 Ga. 377, 552 S.E.2d 855 (2001); Johnson v. State, 275 Ga. 630, 570 S.E.2d 309 (2002); Adams v. State, 275 Ga. 867, 572 S.E.2d 545 (2002); Oken v. State, 378 Md. 179, 835 A.2d 1105 (2003); Rivera v. State, 282 Ga. 355, 647 S.E.2d 70 (2007); Teal v. State, 282 Ga. 319, 647 S.E.2d 15 (2007); Roberts v. State, 282 Ga. 548, 651 S.E.2d 689 (2007); Preston v. State, 282 Ga. 210, 647 S.E.2d 260 (2007); Miller v. Martin, F. Supp. 2d (N.D. Ga. Aug. 20, 2007); Jones v. State, 282 Ga. 784, 653 S.E.2d 456 (2007); Walker v. Hale, 283 Ga. 131, 657 S.E.2d 227 (2008); Mitchell v. State, 283 Ga. 341, 659 S.E.2d 356 (2008); Robinson v. State, 283 Ga. 229, 657 S.E.2d 822 (2008); Robinson v. State, 283 Ga. 229, 657 S.E.2d 822 (2008); Armstrong v. State, 292 Ga. App. 145, 664 S.E.2d 242 (2008); Terry v. State, 284 Ga. 119, 663 S.E.2d 704 (2008); Jackson v. State, 284 Ga. 484, 668 S.E.2d 700 (2008); Bradshaw v. State, 284 Ga. 675, 671 S.E.2d 485 (2008); Gonzales v. State, 298 Ga. App. 821, 681 S.E.2d 248 (2009); Reeves v. State, 288 Ga. 545, 705 S.E.2d 159 (2011); Kipp v. State, 294 Ga. 55, 751 S.E.2d 83 (2013); Springer v. State, Ga. App. , S.E.2d (June 10, 2014); Freeman v. State, 328 Ga. App. 756, 760 S.E.2d 708 (2014); Rollf v. Carter, 298 Ga. 557, 784 S.E.2d 341 (2016); Hughey v. State, 337 Ga. App. 145, 786 S.E.2d 523 (2016); Chavers v. State, 304 Ga. 887, 823 S.E.2d 283 (2019); Lonon v. State, 348 Ga. App. 527, 823 S.E.2d 842 (2019).
UnlawfulnessUnlawfulness, in sense of absence of excuse or justification, is an essential element of murder. Tennon v. Ricketts, 642 F.2d 161 (5th Cir. 1981).
Interpretation of unlawfulness.
- Only sensible way to interpret the unlawfulness requirement of O.C.G.A. § 16-5-1(a) is to read it to mean unjustified and unexcused. Holloway v. McElroy, 632 F.2d 605 (5th Cir. 1980), cert. denied, 451 U.S. 1028, 101 S. Ct. 3019, 69 L. Ed. 2d 398 (1981).
Term "unlawfully" in O.C.G.A. § 16-5-1(a) is not intended as a meaningless redundancy. The killing is not unlawful because it is murder; rather, part of the reason that the killing is murder is because it is unlawful. Holloway v. McElroy, 632 F.2d 605 (5th Cir. 1980), cert. denied, 451 U.S. 1028, 101 S. Ct. 3019, 69 L. Ed. 2d 398 (1981).
Requirement does not refer to acts unlawful under other criminal statutes.
- Requirement of O.C.G.A. § 16-5-1(a), and by reference, of O.C.G.A. § 16-5-2, that killing be unlawful does not refer to acts that are unlawful under some other criminal statute, since O.C.G.A. § 16-5-3(a) and O.C.G.A. § 16-5-1(c) deal with deaths caused during commission of felonies and other unlawful acts. Holloway v. McElroy, 632 F.2d 605 (5th Cir. 1980), cert. denied, 451 U.S. 1028, 101 S. Ct. 3019, 69 L. Ed. 2d 398 (1981).
Lawfulness is proved by establishing self-defense. Tennon v. Ricketts, 642 F.2d 161 (5th Cir. 1981).
State must prove unlawfulness and malice aforethought beyond reasonable doubt.
- Georgia law has chosen to include unlawfulness and malice aforethought as elements of murder and the prosecution must prove all these elements beyond a reasonable doubt without benefit of presumptions, at least when some evidence has been adduced to negate those elements. Holloway v. McElroy, 474 F. Supp. 1363 (M.D. Ga. 1979), aff'd, 632 F.2d 605 (5th Cir. 1980), cert. denied, 451 U.S. 1028, 101 S. Ct. 3019, 69 L. Ed. 2d 398 (1981), overruled on other grounds, Baker v. Montgomery, 811 F.2d 55 (11th Cir. 1987).
Unlawful acts causing unintended death which constitute murder.
- An unlawful act may be of such nature as to make resulting homicide murder and not involuntary manslaughter, as (1) where intended act causing unintentional death is itself a felony; or (2) where such act is one which in its consequences naturally tends to destroy human life; or (3) where it is committed in prosecution of a riotous intent. Absence of intention to kill will not, in any of these instances, reduce killing from murder to involuntary manslaughter, but will do so in all other instances. Wells v. State, 44 Ga. App. 760, 162 S.E. 835 (1932) (decided under former Penal Code 1910, §§ 61, 62).
Involuntary killing occurring during commission of unlawful act naturally tending to destroy life constitutes murder. Hammond v. State, 212 Ga. 186, 91 S.E.2d 615 (1956) (decided under former Code 1933, §§ 26-1003, 26-1004).
Intentionally pointing a pistol at another.
- To intentionally point a pistol at another, in fun or otherwise, save in instances excepted by statute, is unlawful; and if, while performing such unlawful act, the pistol is accidentally discharged, the person so acting, if not guilty of murder, would be guilty of involuntary manslaughter in commission of an unlawful act. Delegal v. State, 92 Ga. App. 744, 90 S.E.2d 32 (1955) (decided under former Code 1933, §§ 26-1003, 26-1004).
Indictment
When an indictment charges murder it also charges manslaughter; under the criminal practice and procedure in this state a verdict of involuntary manslaughter would find support in such a pleading, because involuntary manslaughter is the unlawful killing of a human being, and such crime is always included in an indictment for murder. Perry v. State, 78 Ga. App. 273, 50 S.E.2d 709 (1948) (decided under former Code 1933, §§ 26-1003, 26-1004).
That killing was unlawful need not be alleged in indictment. Coxwell v. State, 66 Ga. 309 (1881) (decided under Code 1873, §§ 4321, 4322); Davis v. State, 153 Ga. 669, 113 S.E. 11 (1922) (decided under former Code 1910, §§ 61, 62).
While indictment must allege malice aforethought, words of equivalent meaning may be employed in lieu thereof. Gates v. State, 95 Ga. 340, 22 S.E. 836 (1895) (decided under former Code 1882, §§ 4321, 4322).
Indictment need not specifically allege fact relied upon to establish malice.
- Under allegation of malice aforethought state may introduce any evidence which is relevant and material upon issue of malice, either express or implied, and it is unnecessary for indictment to more specifically allege fact which will be relied upon to establish malice. Perry v. State, 78 Ga. App. 273, 50 S.E.2d 709 (1948) (decided under former Code 1933, §§ 26-1003, 26-1004).
Indictment need not show detailed description of weapon, or location of wound. Bowens v. State, 106 Ga. 760, 32 S.E. 666 (1899) (decided under former Penal Code 1895, §§ 61, 62).
Indictment mixing malice and felony murder elements was defective.
- With regard to an indictment against a defendant which charged murder, felony murder, and concealment of a death, the count charging felony murder was quashed because the mixing of the elements of malice murder and felony murder constituted a material defect. Wagner v. State, 282 Ga. 149, 646 S.E.2d 676 (2007).
Indictment properly charged malice murder and felony murder as distinct counts.
- Trial court erred in quashing the count of an indictment alleging felony murder predicated on the felony of aggravated battery because the indictment did not allege malice murder twice but properly charged malice murder and felony murder as distinct, alternative counts, and the trial court's finding that the state improperly alleged "malicious malice" was erroneous when the felony murder count alleged that the causing of bodily harm was malicious, not that the commission of the complete crime of aggravated battery was malicious; a defendant might have had malice in the form of the intent to cause bodily harm with no malice in the form of the intent to kill, and yet death might still occur, and in such a case the defendant would be guilty of felony murder but not malice murder. Pope v. State, 286 Ga. 1, 685 S.E.2d 272 (2009).
Failure to allege county.
- Habeas petition was properly denied, despite an inmate's claim that the omission of the county in which a malice murder occurred rendered a conviction on that count void, as the defense was waived when the inmate plead guilty to the charge, and the inmate's allegations of trial counsel's ineffectiveness were meritless. Wright v. Hall, 281 Ga. 318, 638 S.E.2d 270 (2006).
Indictment need not show that deceased was a human being. Sutherland v. State, 121 Ga. 591, 49 S.E. 781 (1905) (decided under former Penal Code 1895, §§ 61, 62).
Indictment alleging that person was killed on specified date alleges that the person died on that date. Head v. State, 68 Ga. App. 759, 24 S.E.2d 145 (1943) (decided under former Code 1933, §§ 26-1003, 26-1004).
One count indictment was sufficient.
- One-count indictment against the defendant was held sufficient and did not violate the defendant's due process rights, because the indictment charged the defendant with felony murder by causing the death of the victim while committing the felony of aggravated assault and was sufficient to have withstood a general demurrer; the fact that the defendant failed to raise a special demurrer to the indictment prior to pleading to the merits of the indictment was a waiver of that argument. Stinson v. State, 279 Ga. 177, 611 S.E.2d 52 (2005).
Sufficiency of indictment for felony murder.
- A malice murder indictment which alleged that the defendant shot the victim with a pistol is sufficient to put the defendant on notice that defendant committed an aggravated assault on the victim and, therefore, may be charged with felony murder at trial. Jolley v. State, 254 Ga. 624, 331 S.E.2d 516 (1985).
Indictment was sufficient to withstand a general demurrer because the indictment charged the defendant with felony murder-having caused the death of the victim while committing the felony of aggravated assault, which was a felony; and the defendant could not admit the defendant caused the death of the victim while in the commission of aggravated assault and not be guilty of the crime. Brooks v. State, 299 Ga. 474, 788 S.E.2d 766 (2016), cert. denied, 137 S. Ct. 573, 196 L. Ed. 2d 451 (U.S. 2016).
Whether one may be convicted of lower grade of felony depends upon indictment.
- Under indictment for murder, accused may be convicted of a lower grade of felony, or of a misdemeanor, if lesser offense is one involved in the homicide and is sufficiently charged in the indictment; but whether jury should be instructed on law of lesser offense, or would be authorized to convict of lesser offense, depends on evidence. Moore v. State, 55 Ga. App. 213, 189 S.E. 731 (1937) (decided under former Code 1933, §§ 26-1003, 26-1004).
Because an indictment, which included charging language that the defendant "unlawfully, and with malice aforethought, caused the death of the victim by striking," placed the defendant on notice of a possible conviction of an assault upon the victim with the intent to murder or commit a violent injury, the defendant could be convicted of aggravated assault as a lesser included crime of malice murder; the only difference was that the malice murder indictment alleged that the defendant actually accomplished the murder, in addition to having intended to accomplish the murder. Reagan v. State, 281 Ga. App. 708, 637 S.E.2d 113 (2006).
Waiver of challenge to indictment.
- Defendants' contention that a felony murder indictment was deficient because the indictment did not contain all the essential elements of the underlying crime of aggravated assault was, in essence, a special demurrer seeking greater specificity with regard to the predicate felony. Pursuant to O.C.G.A. § 17-7-110, the defendant's failure to file a timely special demurrer seeking additional information constituted a waiver of the right to be tried on a perfect indictment. Dasher v. State, 285 Ga. 308, 676 S.E.2d 181 (2009).
Felony murder indictment was not deficient because the indictment did not contain all the essential elements of the underlying crime of aggravated assault because the defendant's failure to file a special demurrer seeking additional information before pleading guilty to the indictment constituted a waiver of the defendant's right to be tried on a perfect indictment. Brooks v. State, 299 Ga. 474, 788 S.E.2d 766 (2016), cert. denied, 137 S. Ct. 573, 196 L. Ed. 2d 451 (U.S. 2016).
Indictment for felony murder and vehicular homicide.
- Defendant could be indicted for vehicular homicide under O.C.G.A. § 40-6-393 and felony murder during the commission of fleeing and attempting to elude a police officer under O.C.G.A. § 40-6-395. State v. Tiraboschi, 269 Ga. 812, 504 S.E.2d 689 (1998).
Failure to file demurrer to indictment.
- Trial counsel was not ineffective in failing to challenge the felony murder count of an indictment because the indictment contained sufficient facts to put the defendant on notice that the defendant was accused of the death of the victim as a result of an aggravated assault when the indictment alleged a specific, offensive use of the defendant's hands and feet and that when the defendant's hands and feet were used in a particular way they were objects which were likely to and actually did result in serious bodily injury; the absence of self-defense, like general intent, did not have to be expressly alleged in an indictment, and even if some such allegation were necessary, language in the indictment asserting that defendant acted unlawfully and contrary to the laws of the state, the good order, peace, and dignity thereof was sufficient. Lizana v. State, 287 Ga. 184, 695 S.E.2d 208 (2010).
Under indictment for murder, jury may find prisoner guilty of lesser offense of manslaughter, either voluntary or involuntary, and verdict will be legal, although there is no count for manslaughter in indictment. Perry v. State, 78 Ga. App. 273, 50 S.E.2d 709 (1948).
When on indictment and trial for murder, offense of voluntary manslaughter may be reasonably deduced from evidence, or defendant's statement, considered separately or together, a charge upon law of voluntary manslaughter is authorized. Tucker v. State, 61 Ga. App. 661, 7 S.E.2d 193 (1940) (decided under former Code 1933, §§ 26-1003, 26-1004).
When evidence, or defendant's statement, or portions of evidence and portions of statement combined, raise doubt, however slight, as to whether homicide was murder or voluntary manslaughter, it is not error for court to instruct jury upon law of voluntary manslaughter. Tucker v. State, 61 Ga. App. 661, 7 S.E.2d 193 (1940) (decided under former Code 1933, §§ 26-1002, 26-1003, 26-1004).
Indictment alleging that the defendant unlawfully and with malice aforethought did murder the victim in a manner unknown to the grand jury was not subject to demurrer for failing to indicate whether the malice alleged was express or implied, because an indictment failing to specify the cause of death is sufficient when the circumstances of the case will not admit of greater certainty in stating the means of death. Hinton v. State, 280 Ga. 811, 631 S.E.2d 365 (2006).
Indictment alleging shooting sufficiently alleged instrumentality used was firearm.
- Defendant, who pled guilty to malice murder, O.C.G.A. § 16-5-1, was not entitled to an out-of-time appeal based on the indictment's failure to allege the instrumentality used; the indictment's allegations that the defendant caused the death of the victim by shooting the victim was sufficient to give notice that the defendant was charged with killing the victim with the use of a firearm. Brown v. State, 290 Ga. 321, 720 S.E.2d 617 (2012), overruled on other grounds by Collier v. State, 834 S.E.2d 769, 2019 Ga. LEXIS 708 (Ga. 2019).
Intent and Malice
1. In General
O.C.G.A. § 16-5-1(b) is not unconstitutional when given in charge to the jury. McMichael v. State, 252 Ga. 305, 313 S.E.2d 693 (1984).
Defendant did not act in self-defense and was guilty of malice murder.
- Evidence was sufficient to show that the defendant did not act in self-defense when the defendant made repeated threats to kill the victim, recruited family members to help and the defendant pursued and confronted the unarmed victim in the middle of the street and bragged to others about the crime; the defendant was not in imminent danger from the victim, but the defendant acted solely out of revenge for prior crimes and assaults allegedly committed against the defendant by the victim. Slaughter v. State, 278 Ga. 896, 608 S.E.2d 227 (2005).
Evidence was sufficient to support defendant's conviction of malice murder, in violation of O.C.G.A. § 16-5-1, based on an eyewitness's testimony that the eyewitness did not believe that defendant had acted in self-defense in fatally shooting the victim; the testimony was admissible over defendant's objection because the eyewitness based the testimony on personal observations, and there was also other evidence which allowed a rational trier of fact to have found sufficient proof beyond a reasonable doubt of defendant's guilt. Smith v. State, 281 Ga. 237, 637 S.E.2d 400 (2006).
Evidence that the victim had been stabbed 12 times, six times in the back, and the defendant's testimony that the defendant kicked in the door to the victim's house, that the victim confronted the defendant with a knife, and that the defendant took the knife from the victim and acted in self-defense was sufficient to convict the defendant of malice murder as the jury was entitled to reject the self-defense claim. Timmreck v. State, 285 Ga. 39, 673 S.E.2d 198 (2009).
Malice must be shown.
- Malice is not confined to a particular animosity to deceased, but extends to an evil design in general, a wicked and corrupt motive, an intention to do evil, the event of which is fatal. Roberts v. State, 3 Ga. 310 (1847) (decided under former law).
In trial for murder it is absolutely essential that malice, express or implied, be shown. Elder v. State, 212 Ga. 705, 95 S.E.2d 373 (1956) (decided under former Code 1933, §§ 26-1003, 26-1004).
Malice defined.
- Legal malice is an unlawful intention to kill without justification or mitigation. Bailey v. State, 70 Ga. 617 (1883) (decided under former Code 1882, §§ 4321, 4322).
Legal malice is not ill will or hatred. Bailey v. State, 70 Ga. 617 (1883) (decided under former Code 1882, §§ 4321, 4322).
Malice is wickedness of purpose; a spiteful or malevolent design against another; a settled purpose to injure or destroy another. Patterson v. State, 85 Ga. 131, 11 S.E. 620, 21 Am. St. R. 152 (1890) (decided under former Penal Code 1895, §§ 61, 62).
Legal malice is the intent unlawfully to take human life in cases which the law neither mitigates nor justifies. Smithwick v. State, 199 Ga. 292, 34 S.E.2d 28 (1945) (decided under former Code 1933, §§ 26-1003, 26-1004).
Malice means the intent to take life without legal justification, excuse, or mitigation. Gatliff v. State, 90 Ga. App. 869, 84 S.E.2d 588 (1954) (decided under former Code 1933, §§ 26-1003, 26-1004).
Malice is the unlawful, deliberate intention to kill a human being without excuse, justification, or mitigation. It is a state of mind and is a premeditated, deliberate intention and desire and design to unlawfully kill another human being. Mason v. Balkcom, 487 F. Supp. 554 (M.D. Ga. 1980), rev'd on other grounds, 669 F.2d 222 (5th Cir. 1982), cert. denied, 460 U.S. 1016, 103 S. Ct. 1260, 75 L. Ed. 2d 487 (1983).
Malice element, which distinguishes murder from the lesser offense of voluntary manslaughter, means simply the intent to kill in the absence of provocation. McCleskey v. Zant, 580 F. Supp. 338 (N.D. Ga. 1984), rev'd on other grounds sub nom. McCleskey v. Kemp, 753 F.2d 877 (11th Cir. 1985), aff'd, 481 U.S. 279, 107 S. Ct. 1756, 95 L. Ed. 2d 262 (1987), cert. denied, 501 U.S. 1282, 112 S. Ct. 38, 115 L. Ed. 2d 1118 (1991).
Express malice is the deliberate intention unlawfully to take a life, manifested by external circumstances; malice could be implied where no considerable provocation appeared and the circumstances of the killing showed an abandoned and malignant heart. Hill v. State, 274 Ga. 591, 555 S.E.2d 696 (2001).
Intent to kill is part of an essential element of murder, namely malice aforethought. Mason v. Balkcom, 487 F. Supp. 554 (M.D. Ga. 1980), rev'd on other grounds, 669 F.2d 222 (5th Cir. 1982), cert. denied, 460 U.S. 1016, 103 S. Ct. 1260, 75 L. Ed. 2d 487 (1983).
Intent to kill is necessary. Lott v. State, 18 Ga. App. 747, 90 S.E. 727 (1916) (decided under former Penal Code 1910, §§ 60, 61, 62).
Purpose and specific intent not required.- Rather than affixing the terms of "specific intent" or "purpose" with respect to the mens rea required for murder, Georgia has opted for the common-law requirement of malice aforethought, which may be either express or implied. Accordingly, evidence which disproves "purpose" or "desire," such as evidence of mental deficiency, does not necessarily disprove malice aforethought. Wallace v. Kemp, 581 F. Supp. 1471 (M.D. Ga. 1984), rev'd on other grounds, 757 F.2d 1102 (11th Cir. 1985).
Intent need not be directed toward person killed or injured.
- Offenses of murder, voluntary manslaughter, and aggravated assault do not require that the necessary element of intent, to kill or injure as the case may be, must have been directed toward the person who actually was killed or injured. Cook v. State, 255 Ga. 565, 340 S.E.2d 843, cert. denied, 479 U.S. 871, 107 S. Ct. 241, 93 L. Ed. 2d 166 (1986).
Act committed is judged by nature of act intended.
- If one who was engaged in a personal difficulty with another fired upon the person with a pistol, but missing that person killed a third person who was nearby, such killing would be murder, and not involuntary manslaughter. Durham v. State, 70 Ga. 264 (1883) (decided under former Code 1882, §§ 4321, 4322).
If a person shoots at another under circumstances that, if death had ensued, the offense would be reduced from murder to voluntary manslaughter, and by accident the shot hits and kills another person standing by, for whom it was not intended, the offense would be voluntary manslaughter. McLendon v. State, 172 Ga. 267, 157 S.E. 475 (1931) (decided under former Penal Code 1910, §§ 61, 62).
If the defendant intended to kill the defendant's own child, but, under mistake as to identity, killed another child, the defendant's act would be measured by the same standard as if the defendant had killed the defendant's own child. Wright v. State, 199 Ga. 576, 34 S.E.2d 879 (1945) (decided under former Code 1933, §§ 26-1003, 26-1004).
Killing of innocent bystander while making a murderous assault on another is murder; the thing done follows the nature of the thing intended to be done and guilt or innocence of slayer depends upon same considerations which would have governed had the slayer shot and killed the person against whom it was directed. Montgomery v. State, 78 Ga. App. 258, 50 S.E.2d 777 (1948) (decided under former Code 1933, §§ 26-1003, 26-1004).
Mere drunkenness will not negative specific intent to murder.
- One sober enough to intend to shoot at another, and actually to shoot at and hit the other, without any provocation or justification whatever, is deemed sober enough to form specific intent to murder; and mere drunkenness, whatever its degree, will not negative such intent. Bradberry v. State, 170 Ga. 859, 154 S.E. 344 (1930) (decided under former Penal Code 1910, §§ 61, 62).
Assault or other equivalent circumstances may exclude idea of deliberate, wanton intention to take life. McLendon v. State, 172 Ga. 267, 157 S.E. 475 (1931) (decided under former Penal Code 1910, §§ 61, 62).
There is no difference between express and implied malice except in mode of arriving at fact. Jones v. State, 39 Ga. 594 (1859) (decided under former law).
One capable of forming simple intent to kill another is capable of malice. Jones v. State, 29 Ga. 594 (1859) (decided under former law).
One who can voluntarily shoot is capable of malice, unless one can plead some infirmity besides drunkenness. To be too drunk to form intent to kill, one must be too drunk to form intent to shoot. Cone v. State, 193 Ga. 420, 18 S.E.2d 850 (1942) (decided under former law).
To render homicide murder, malice must exist at time of killing. McMillan v. State, 35 Ga. 54 (1866) (decided under former Code 1863, §§ 4218, 4219); Phillips v. State, 26 Ga. App. 263, 105 S.E. 823 (1921) (decided under former Penal Code 1910, §§ 61, 62).
Malice need not exist for any particular length of time before killing. Bailey v. State, 70 Ga. 617 (1883) (decided under former Code 1882, §§ 4321, 4322); Perry v. State, 102 Ga. 365, 30 S.E. 903 (1897) (decided under former Penal Code 1895, §§ 61, 62).
Momentary deliberation suffices.
- Law does not fix time of deliberation, and if it is momentary, it is sufficient. Roberts v. State, 3 Ga. 310 (1846) (decided under former Code 1933, §§ 26-1003, 26-1004).
If malice is in mind of slayer at moment killing is done, and it moves slayer to do the killing, no matter how short a time it may have existed, such killing constitutes murder. Brown v. State, 190 Ga. 169, 8 S.E.2d 652 (1940) (decided under former Code 1933, §§ 26-1003, 26-1004).
If malice appears, it cannot matter from what source the malice sprang. Perry v. State, 102 Ga. 365, 30 S.E. 903 (1897) (decided under former Code 1895, §§ 61, 62).
"Hot blood" requirement for voluntary manslaughter is inconsistent with malice. Holloway v. McElroy, 632 F.2d 605 (5th Cir. 1980), cert. denied, 451 U.S. 1028, 101 S. Ct. 3019, 69 L. Ed. 2d 398 (1981).
Evidence of prior serious violent acts improperly admitted to show intent.
- Appellant's convictions for felony murder, aggravated assault, and knife-possession offenses were reversed because the Georgia Supreme Court could not say that the trial court's erroneous admission of the voluminous evidence that the appellant had previously committed multiple serious violent acts did not contribute to the guilty verdicts that the jury returned. Strong v. State, Ga. , 845 S.E.2d 653 (2020).
Intention of defendant is matter for jury. Blakewood v. State, 196 Ga. 34, 25 S.E.2d 643 (1943) (decided under former Code 1933, §§ 26-1003, 26-1004).
Evidence adduced at trial that the victim was unarmed, that the victim made a9-1-1 call for help moments before being shot, that the victim died of a single gunshot wound fired from a distance of between two and 20 feet away, and that the weapon used in the shooting could not be unintentionally fired, was sufficient to show that defendant did not accidentally shoot the victim. Jackson v. State, 276 Ga. 611, 581 S.E.2d 34 (2003).
When weapon is used in manner not naturally calculated to produce death, intent is fact issue. Delk v. State, 135 Ga. 312, 69 S.E. 541, 1912A Ann. Cas. 105 (1910) (decided under former Penal Code 1895, §§ 61, 62).
Using weapon with intention to do act which will likely produce death may constitute murder. Aiken v. State, 170 Ga. 895, 154 S.E. 368 (1930) (decided under former Penal Code 1910, §§ 61, 62).
Inferring intention to kill by use of deadly weapon.
- Although the trial court erred by instructing the jury that it could infer that a person who used a deadly weapon in the manner in which it was usually used and that if the weapon caused a death, the jury could infer the intent to kill, the error was harmless in light of the overwhelming evidence of the defendant's guilt. Lewis v. State, 279 Ga. 69, 608 S.E.2d 602, cert. denied, 546 U.S. 987, 126 S. Ct. 571, 163 L. Ed. 2d 478 (2005).
It is for jury to determine whether killing is intentional and malicious from all facts and circumstances. Blair v. State, 245 Ga. 611, 266 S.E.2d 214 (1980).
When words, threats, menaces, or contemptuous gestures induce fear justifying homicide.
- While provocation by words, threats, menaces, or contemptuous gestures is not sufficient to justify excitement of passion and reduce homicide below grade of murder when killing is done not on account of any fear in mind of slayer, but solely to resent provocation given, it is nevertheless true that such acts may in some instances be sufficient to arouse fears of a reasonable man that the man's life is in danger, the same being a question to be determined by the jury, and that where words, threats, menaces, or contemptuous gestures may thus throw light upon that question, they should not be excluded from consideration of jury. Bird v. State, 71 Ga. App. 643, 31 S.E.2d 835 (1944) (decided under former Code 1933, §§ 26-1003, 26-1004).
Defendant's threat to kill deceased is relevant where identity of slayer is in issue.
- It is not error to permit a witness for the state to testify that a month before the homicide the witness heard the defendant threaten to kill the deceased, where one of the issues at the trial was the identity of the defendant as the slayer. Aycock v. State, 188 Ga. 551, 4 S.E.2d 221 (1939) (decided under former Code 1933, §§ 26-1003, 26-1004).
In cases of provocation by threats, motive with which slayer acted is for jury determination, and if it is claimed that homicide was committed, not in a spirit of revenge, but under fears of a reasonable man, it is for jury to decide whether or not circumstances were sufficient to justify existence of such fear. Moore v. State, 228 Ga. 662, 187 S.E.2d 277 (1972).
Existence of provocation does not preclude existence of malice. Malice can be express or it can be implied where no considerable provocation appears. Whether or not a provocation, if any, is such a serious provocation as would be sufficient to excite a sudden, violent, and irresistible passion in a reasonable person, reducing the offense from murder to manslaughter, is generally a question for the jury. Anderson v. State, 248 Ga. 682, 285 S.E.2d 533 (1982).
Former animosities, concerned plots, threats, or nature of act itself may show express malice. Roberts v. State, 3 Ga. 310 (1847) (decided under former law).
Previous threats, ancient grudges, and waylaying are external circumstances illustrating express malice. Mitchum v. State, 11 Ga. 615 (1852) (decided under former law).
Prior similar transaction evidence properly admitted to show intent and bent of mind.
- In a prosecution for felony murder during the commission of an aggravated assault, the trial court did not err in admitting relevant similar transaction evidence, consisting of a prior conviction for aggravated assault, considering the similarities between the two crimes, as such illustrated the defendant's course of conduct and bent of mind in resorting to the use of a knife to commit an unprovoked attack on one with whom the defendant was ostensibly socializing. Nichols v. State, 281 Ga. 483, 640 S.E.2d 40 (2007).
In a malice murder prosecution when the victim was violently stabbed and severely beaten, evidence that an officer saw the defendant violently attack an acquaintance as the result of a minor disagreement was properly submitted as a similar transaction to show the defendant's bent of mind and course of conduct. Dixon v. State, 285 Ga. 312, 677 S.E.2d 76 (2009), overruled on other grounds, 287 Ga. 242, 695 S.E.2d 255 (2010).
Trial court's determination that the state met the requirements for admission of similar transaction evidence was not an abuse of discretion because evidence that the defendant used violence against an adult with whom the defendant had a close, loving relationship was admissible to show the defendant's bent of mind in using violence against a member of the defendant's family, even though the family member was a mere infant, and even though the family member suffered internal, rather than external, injuries. Brinson v. State, 289 Ga. 150, 709 S.E.2d 789 (2011).
One who conspires to commit murder does so with malice aforethought. Orkin v. State, 236 Ga. 176, 223 S.E.2d 61 (1976).
Use of "malice aforethought" in indictment.- Term "malice aforethought" as the term appears in an indictment is not self-explanatory and may be incomprehensible to a layman, particularly one of limited mental capacity, without further explanation. Gaddy v. Linahan, 780 F.2d 935 (11th Cir. 1986).
Malice murder as within scope of robbery conspiracy.
- Jury was not misled into imputing intent to kill from a conspiracy to commit robbery since the charge stressed that the crime charged, malice murder, must have been within the scope of the conspiracy before it could be charged to any coconspirator. Solomon v. Kemp, 735 F.2d 395 (11th Cir. 1984), cert. denied, 469 U.S. 1181, 105 S. Ct. 940, 83 L. Ed. 2d 952 (1985).
Malice murder as within scope of arson.
- Defendant was improperly convicted of murder because, although the defendant was guilty of conspiracy to commit arson, the subsequent murder of one co-conspirator by another to keep the murdered co-conspirator quiet was not reasonably foreseen as a necessary, probable consequence of the arson conspiracy. Everritt v. State, 277 Ga. 457, 588 S.E.2d 691 (2003).
Construed with O.C.G.A. § 40-6-390. - Murder charge cannot be predicated upon "reckless disregard for safety of persons" under O.C.G.A. § 40-6-390. Foster v. State, 239 Ga. 302, 236 S.E.2d 644 (1977).
Neglect and abuse of an infant may be done with malice aforethought.
- Neglect of an infant can be intentional and deliberate and can, in conjunction with starvation and physical abuse, be done with malice aforethought intended to cause death. Lackey v. State, 246 Ga. 331, 271 S.E.2d 478 (1980).
Parent's state of mind relevant where death was from child neglect.
- Whether a child has been starved, neglected, and abused with malice so as to constitute murder, or has merely been harmed as a result of inability, carelessness, or accident, may often require considerable indirect proof to determine the parent's state of mind. The education, intelligence and work experience of parents in such cases are relevant to question of parent's state of mind and should generally be admitted into evidence. Lackey v. State, 246 Ga. 331, 271 S.E.2d 478 (1980).
"Neglect," as used in indictment for death of child.
- It was not error to overrule motion to dismiss indictment charging that defendants, with malice aforethought, killed their ten-month old daughter by means of starvation, neglect, and physical abuse on grounds that indictment was imperfect because "neglect" is inconsistent with malice aforethought and cannot constitute murder; neglect as used in indictment is not equivalent of negligence. Lackey v. State, 246 Ga. 331, 271 S.E.2d 478 (1980).
Intent not admitted by self-defense plea.
- Defendant does not admit intent to kill by pleading that defendant acted in self-defense. Patterson v. Austin, 728 F.2d 1389 (11th Cir. 1984); Brantley v. State, 256 Ga. 136, 345 S.E.2d 329 (1986).
Evidence of defendant's shooting another the day before homicide was admissible as demonstrating defendant's bent of mind and propensity for use of a pistol. Bishop v. State, 257 Ga. 136, 356 S.E.2d 503 (1987).
Homicide resulting from use of "spring gun" to defend habitation was not justified where defendant was working and not at home when the gun activated. Bishop v. State, 257 Ga. 136, 356 S.E.2d 503 (1987).
Finding of guilty but mentally ill rather than not guilty by reason of insanity.
- In a trial for murder of defendant's parents, a rational trier of fact could have found that the defendant failed to prove by a preponderance of the evidence that defendant was insane at the time of the crime. Thus, a rational trier of fact could have found defendant guilty but mentally ill beyond a reasonable doubt. Harris v. State, 256 Ga. 350, 349 S.E.2d 374 (1986).
Shooting of motorcyclist following teenage children home sufficient for conviction.
- Evidence was sufficient to support the convictions of murder, aggravated assault, and firearm possession in connection with the shooting death of the victim because the evidence showed that: (1) the defendant's teenage children made a cell phone call to the children's parents' home to tell them that the children were being followed by a motorcycle rider; (2) as the children arrived home, the defendant exited from the house with a handgun; (3) the defendant fired two warning shots at the rider when the rider rode past; (4) the rider turned the motorcycle around and when the rider rode past the house again, the defendant fired again as the defendant claimed that the rider swerved toward the defendant; and (5) this shot struck the victim, resulting in the victim's death. Gear v. State, 288 Ga. 500, 705 S.E.2d 632 (2011), overruled on other grounds by State v. Lane, 2020 Ga. LEXIS 98 (Ga. 2020).
Sufficient evidence of malice.
- Evidence of malice was sufficient to support the defendant's conviction for malice murder, as the evidence showed that the defendant drove by the victim who the defendant thought had killed the defendant's best friend, that the defendant immediately parked the defendant's car around the corner of a building, grabbed a gun from under a seat in the car, pushed aside a friend who tried to stop the defendant, ran to within a few feet of the victim, and shot the victim twice, even though the defendant could not show that the victim presented any immediate threat to the defendant. Garrett v. State, 276 Ga. 556, 580 S.E.2d 236 (2003).
Evidence supported defendant's convictions for malice murder, attempted arson, and related charges where: (1) the victim was found encased in concrete in a cattle trough on a farm defendant used for hunting; (2) the victim was killed by a .22 caliber bullet wound to the head and multiple stab wounds and the police executing a search warrant found a .22 caliber rifle and ammunition consistent with those used to kill the victim at defendant's home; (3) defendant's mailbox was painted with the same type of paint used on the cattle trough, and similar paint was found at defendant's home; (4) defendant purchased 10 80-pound bags of concrete and a cattle trough, like the one in which the victim was found; and (5) there was a heavy smell of kerosene and a candle burned down to the stub under the victim's sofa, indicating that someone had unsuccessfully attempted to set the house on fire. Fortson v. State, 277 Ga. 164, 587 S.E.2d 39 (2003), overruled on other grounds by Willis v. State, 2018 Ga. LEXIS 685 (Ga. 2018).
Evidence was sufficient to support defendant's convictions for malice murder, theft by taking, and financial transaction card fraud, as the evidence authorized any rational trier of fact to find defendant guilty of those crimes beyond a reasonable doubt; the evidence showed that defendant struck the victim multiple times with a wrench, causing the victim's death, that the defendant was in possession of a laptop computer that had been missing from the victim's office, and that defendant had used the victim's credit, posing as the victim's wife, on the day the victim died. Baugh v. State, 276 Ga. 736, 585 S.E.2d 616 (2003).
When the record revealed that defendant and his girlfriend went to a party together, that he became enraged when the girlfriend and another woman left the party without telling him, and that upon returning home, he strangled his girlfriend, whom he had a history of abusing, and he assaulted the other woman, there was sufficient evidence to support his convictions for malice murder in violation of O.C.G.A. § 16-5-1 and simple assault in violation of O.C.G.A. § 16-5-20. Rickman v. State, 277 Ga. 277, 587 S.E.2d 596 (2003).
Evidence was sufficient to support convictions for malice murder and possession of a firearm in the commission of a felony because an eyewitness identified the defendant as one of two armed persons seen getting out of a van and two other eyewitnesses testified that they saw the defendant fire shots at the victim; the medical evidence showed that the victim died from gunshot wounds to the head and neck. Cox v. State, 279 Ga. 223, 610 S.E.2d 521 (2005).
Evidence was sufficient to support the defendant's guilt of malice murder and possession of a firearm during the commission of a felony because, although the codefendant fired the shot that killed the victim, eyewitness testimony showed that the defendant was a party to the crimes. Cox v. State, 279 Ga. 223, 610 S.E.2d 521 (2005).
Evidence that the defendant fatally shot the victim while the victim knelt unarmed was sufficient to establish the offense of malice murder. Weldon v. State, 279 Ga. 185, 611 S.E.2d 36 (2005).
In an action in which the defendant was convicted of the murder of a parent's love interest, defense counsel failure to investigate the victim's violent nature was not ineffective; the jury was given considerable information concerning the victim's violent nature, that the victim had beaten the defendant's parent, and had consumed cocaine; even with further investigation, the outcome of the trial would not have changed; the jury rejected both the justification defense and the lesser charge because there was overwhelming evidence that the defendant committed malice murder. Cooper v. State, 279 Ga. 189, 612 S.E.2d 256 (2005).
Eyewitness's identification of the defendant and the statement made to police by the mother of the defendant's children in which the mother stated that the defendant admitted to shooting someone provided sufficient evidence to convict the defendant of malice murder in violation of O.C.G.A. § 16-5-1 and possession of a firearm during the commission of a felony in violation of O.C.G.A. § 16-11-106; the weight accorded to the identification and the statement to police was a matter for the jury. Wells v. State, 281 Ga. 253, 637 S.E.2d 8 (2006).
Evidence was sufficient to enable a rational trier of fact to find the defendant guilty beyond a reasonable doubt of malice murder as the defendant shot the victim from behind twice in the head during a drug deal and several witnesses testified that the defendant bragged to the witnesses about shooting the victim. Rosser v. State, 284 Ga. 335, 667 S.E.2d 62 (2008).
Evidence that the defendant shot at the victim until the defendant's gun ran out of bullets, and continued pulling the trigger thereafter, was sufficient to support the defendant's conviction of malice murder. Brown v. State, 285 Ga. 324, 676 S.E.2d 221 (2009).
Because testimony about the circumstances of the victim's visit to a home where defendant was shot was relevant and admissible to explain defendant's motive in shooting the victim, the evidence was sufficient to convict defendant of malice murder, aggravated assault with a deadly weapon, and possession of a firearm during the commission of a felony. Taylor v. State, 287 Ga. 440, 696 S.E.2d 652 (2010).
Jury was authorized to find the defendant guilty of malice murder, even if the jury concluded that the defendant did not intend the victim's death, because implied malice was sufficient and the evidence supported a finding of both express and implied malice since the defendant had threatened to kill the victim in the past, and the defendant again threatened to kill the victim just hours before the shooting; there was no "considerable provocation" for the shooting, and a rational jury could find that the circumstances surrounding the killing showed that the defendant had an abandoned and malignant heart, thereby establishing implied malice. Mills v. State, 287 Ga. 828, 700 S.E.2d 544 (2010).
Evidence was sufficient to support the defendant's conviction for malice murder because the defendant hit the victim with a baseball bat during the course of an argument over a drug transaction, and an incident that occurred when the defendant was a juvenile was properly admitted to show course of conduct and bent of mind. Jackson v. State, 291 Ga. 54, 727 S.E.2d 454 (2012).
Evidence that the defendant, who lived with the victims, and another were seen arguing with the victims immediately before the fire, a witness saw the defendant walk over to an area on the side of the residence where gas cans were discovered, witnesses observed the defendant throw something followed by the eruption of flames in the front portion of the house, and a crime scene investigator and arson investigation expert both concluded an accelerant had been used to intentionally set a fire was sufficient to support convictions for malice murder. Sharpe v. State, 291 Ga. 148, 728 S.E.2d 217 (2012).
Evidence that the child victim appeared healthy before being left alone with the defendant for several hours before the morning on which the victim was found dead and that defendant attempted to flee to Mexico was sufficient to support defendant's conviction for malice murder. Zamora v. State, 291 Ga. 512, 731 S.E.2d 658 (2012).
Evidence was sufficient to convict the defendant of malice murder and possession of a knife during the commission of a crime because, although the defendant testified that the victim attacked the defendant without provocation and that the defendant stabbed the victim merely to end a physical assault, the evidence of the disparity between the ages and physical sizes of the defendant and the victim, the defendant's lack of injuries from the encounter, the fact that the victim was unarmed and was seated or lying down when attacked, and the obvious savagery of the stabbing as shown by the victim's multiple and severe wounds, permitted not only findings of implied malice, but belied the claim that the killing was as an act of self-defense. Mosley v. State, 300 Ga. 521, 796 S.E.2d 684 (2017).
Evidence was sufficient to support the defendant's conviction of malice murder because the defendant admitted that the defendant was in the driver's seat of the vehicle with the tinted windows when shots were fired from the driver's side window, killing the victim, the defendant admitted that a short time later the defendant fled from police, the police found the rifle from which the defendant's fingerprints were lifted discarded in the wooded area near the vehicle, the rifle was the only weapon found in or around the vehicle that could not be excluded as the weapon that fired the fatal shot, and the defendant's fingerprints and DNA placed the defendant in the vehicle. Frazier v. State, Ga. , 845 S.E.2d 579 (2020).
Evidence of malice overwhelming.
- Evidence was sufficient to support the defendant's convictions of malice murder and possession of a firearm during the commission of a felony in relation to the shooting death of a person whom the defendant allegedly suspected of killing the defendant's parent after: (1) three witnesses identified the defendant as the shooter; (2) another witness, who had heard the defendant say that the defendant was going to kill the victim to avenge the death of the defendant's parent, placed the defendant at the crime scene with a gun; (3) two other witnesses averred that the defendant told them that the defendant had killed the victim; and (4) the defendant was arrested two weeks after the murder while carrying the same kind of weapon which was used to kill the victim. Furthermore, although the trial court erroneously charged the jury that it could infer the intent to kill from the defendant's intentional use of a deadly weapon, it was highly probable that the error did not contribute to the judgment and was, therefore, harmless as the evidence of malice was overwhelming. Smith v. State, 276 Ga. 263, 577 S.E.2d 548 (2003).
Chasing and running the victim down in truck.
- In the defendant's trial for malice murder, O.C.G.A. § 16-5-1, the evidence was sufficient for the jury to find that the defendant intended to strike the victim with the defendant's truck, which was substantially certain to cause the victim's death: eyewitnesses testified that the defendant revved the engine while the victim was in front of the truck, then chased the victim down, hit the viictim, and dragged the victim 32 feet. Bozzie v. State, 302 Ga. 704, 808 S.E.2d 671 (2017).
2. Implied Malice
Malice is a state of mind and frequently must be proven indirectly. Davis v. State, 237 Ga. 279, 227 S.E.2d 249 (1976); Lackey v. State, 246 Ga. 331, 271 S.E.2d 478 (1980).
When circumstances indicate an abandoned, malignant heart, malice is implied absent showing of considerable provocation. Davis v. State, 237 Ga. 279, 227 S.E.2d 249 (1976).
Implied malice or its equivalent must be expressly alleged in indictment for murder. Cole v. State, 68 Ga. App. 179, 22 S.E.2d 529 (1942) (decided under former Code 1933, §§ 26-1003, 26-1004).
Willful, wanton violation of statutes designed for public safety.
- If the evidence discloses that defendant willfully and wantonly violated statutes designed to insure safety of traveling public on thoroughfares of state and natural and probable result of defendant's conduct was to take human life, malice is implied, and if infractions of such statutes cause another's death, defendant may be found guilty of murder. Geter v. State, 219 Ga. 125, 132 S.E.2d 30 (1963) (decided under former Code 1933, §§ 26-1003, 26-1004).
When deadly weapon is used in homicide.
- If a deadly weapon is used in commission of a homicide, and it appears that the weapon was used in a manner in which such weapons are ordinarily used to kill, the law presumes an intention to kill, and malice will be implied. Huntsinger v. State, 200 Ga. 127, 36 S.E.2d 92 (1945) (decided under former Code 1933, §§ 26-1003, 26-1004).
When one shoots another in sport, malice is implied from such recklessness. Collier v. State, 39 Ga. 31, 99 Am. Dec. 449 (1869) (decided under former Code 1868, §§ 4255, 4256).
Malice is implied where one shoots into crowd. Hamilton v. State, 129 Ga. 747, 59 S.E. 803 (1907) (decided under former Code 1895, §§ 61, 62).
Defendant engaged in gunfight with innocent bystanders.
- Rational jury could have inferred that the defendant shared a common criminal intent with the co-defendant to engage in a gunfight in the presence of innocent bystanders, and even though the decedent was not an intended victim, and the co-defendant fired the fatal shot, the defendant was a party to the crime of malice murder under the doctrine of transferred intent. Blackwell v. State, 302 Ga. 820, 809 S.E.2d 727 (2018).
Malice may be implied by blows on head with billet of wood. Bryant v. State, 157 Ga. 195, 121 S.E. 574 (1924) (decided under former Penal Code 1910, §§ 61, 62).
When homicide is proved, and evidence shows no justification or alleviation, malice will be inferred. Anderson v. State, 196 Ga. 468, 26 S.E.2d 755 (1943) (decided under former Code 1933, §§ 26-1003, 26-1004).
"Reckless disregard for safety of persons" cannot serve as implied malice aforethought, i.e., an abandoned and malignant heart, so as to authorize a murder conviction. Foster v. State, 239 Ga. 302, 236 S.E.2d 644 (1977).
When criminal negligence constitutes implied malice.
- Criminal negligence constitutes implied malice for purposes of malice murder only when it is capable of producing violence resulting in the destruction of human life. Parker v. State, 270 Ga. 256, 507 S.E.2d 744 (1998), overruled on other grounds, 287 Ga. 881, 700 S.E.2d 394 (2010).
When one intentionally kills another unlawfully, and neither mitigation nor justification appears, malice is established, whether killing was done with a weapon likely to produce death or in some other manner. Smithwick v. State, 199 Ga. 292, 34 S.E.2d 28 (1945) (decided under former Code 1933, §§ 26-1003, 26-1004).
Attempted vehicular suicide by colliding with another vehicle.
- Defendant who attempted to commit suicide by driving defendant's car head-on into another vehicle, whose occupant was killed, could be considered as having an "abandoned and malignant" heart for purposes of implying malice, despite the fact that the primary purpose of defendant's action was to kill self. Anderson v. State, 254 Ga. 470, 330 S.E.2d 592 (1985).
Leaving victim taped to chair sufficient to establish implied malice.
- Reckless disregard for human life that implied malice was established to support the malice murder conviction based on the evidence that showed that the defendant and a cohort broke into and ransacked the house and stole belongings while the victim was away and when the victim returned, the pair held the victim at gunpoint, taped the victim to a chair, and left, causing the victim's death. Burney v. State, Ga. , 845 S.E.2d 625 (2020).
3. Presumption and Burden of Proof
Law presumes intention to kill when slayer unlawfully uses a deadly weapon. Rogers v. State, 87 Ga. App. 180, 73 S.E.2d 215 (1952) (decided under former Code 1933, §§ 26-1003, 26-1004).
Law presumes every homicide to be malicious until contrary appears from facts or circumstances showing excuse or justification. Wiggins v. State, 221 Ga. 609, 146 S.E.2d 294 (1965) (decided under former Code 1933, §§ 26-1003, 26-1004).
State bears burden of proving malice beyond reasonable doubt.
- Burden of producing some evidence of provocation is on defendant only after state shows circumstances from which malice may be implied, and ultimate burden of proving malice beyond a reasonable doubt is on state. Davis v. State, 237 Ga. 279, 227 S.E.2d 249 (1976).
Malice is an element of the offense of murder and must be proved beyond a reasonable doubt. West v. State, 251 Ga. 458, 306 S.E.2d 909 (1983).
Prosecution has burden to prove intent to kill beyond a reasonable doubt. Mason v. Balkcom, 487 F. Supp. 554 (M.D. Ga. 1980), rev'd on other grounds, 669 F.2d 222 (5th Cir. 1982), cert. denied, 460 U.S. 1016, 103 S. Ct. 1260, 75 L. Ed. 2d 487 (1983).
Defendant's duty to produce some evidence of excuse, justification, or mitigation.
- While duty may be placed upon defendant to produce some evidence of excuse, justification, or mitigation before obligation devolves to prosecution to prove unlawfulness and malice beyond proving intentional homicide, prosecution bears ultimate burden of proof as to unlawfulness and malice. Holloway v. McElroy, 474 F. Supp. 1363 (M.D. Ga. 1979), aff'd, 632 F.2d 605 (5th Cir. 1980), cert. denied, 451 U.S. 1028, 101 S. Ct. 3019, 69 L. Ed. 2d 398 (1981), overruled on other grounds, Baker v. Montgomery, 811 F.2d 55 (11th Cir. 1987).
Unlawful acts resulting in death which justify presumption of malice.
- Not all unlawful acts resulting in death of a human being justify presumption of malice; this presumption exists only when killing should happen in commission of an unlawful act which, in its consequences, naturally tends to destroy life of a human being. Smith v. State, 200 Ga. 188, 36 S.E.2d 350 (1945) (decided under former Code 1933, §§ 26-1003, 26-1004).
Killing with weapon likely to produce death raises presumption of malice.
- Presumption of malice arises where a killing is shown to have been done unlawfully by use of a weapon likely to produce death, and no circumstances of justification or mitigation appear. Smithwick v. State, 199 Ga. 292, 34 S.E.2d 28 (1945) (decided under former Code 1933, §§ 26-1003, 26-1004).
When state's evidence shows commission of homicide by accused, by use of a deadly weapon, the law presumes murder, and it is then incumbent upon the defendant to show killing to have been otherwise. Ogletree v. State, 209 Ga. 413, 73 S.E.2d 201 (1952) (decided under former Code 1933, §§ 26-1003, 26-1004).
Overcoming presumption of malice arising from use of deadly weapon.
- Presumption of malice arising from use of deadly weapon may be overcome not only by proof of circumstances of justification, but also by proof of accident or proof of lower grade of homicide; and where evidence for state shows killing by use of a deadly weapon and defendant's sole defense is that of accident, it is error to instruct jury in effect that they would be authorized to imply malice from use of such weapon and to convict defendant unless it be shown that defendant acted under fears of a reasonable man that defendant was in danger from deceased. Ayers v. State, 214 Ga. 156, 103 S.E.2d 574 (1958).
Deadly weapon may be used in such manner as not necessarily to raise presumption of malice, but to leave intent as question of fact for jury. Thus, to strike one with the barrel of a pistol, instead of shooting the person, or to strike with the handle of a dirk, instead of with the blade, would not be the ordinary way of using such weapon to kill, and intention to kill would be rather a question of fact than of presumption. Huntsinger v. State, 200 Ga. 127, 36 S.E.2d 92 (1945) (decided under former Code 1933, §§ 26-1003, 26-1004).
When instrument employed is not per se a deadly weapon. Huntsinger v. State, 200 Ga. 127, 36 S.E.2d 92 (1945) (decided under former Code 1933, §§ 26-1002, 26-1003, 26-1004).
When weapon used was not likely to produce death.
- When killing is shown to have been done unlawfully and intentionally without circumstances of justification or mitigation, though with a weapon not likely to produce death, absence of malice is not necessarily presumed. Smithwick v. State, 199 Ga. 292, 34 S.E.2d 28 (1945) (decided under former Code 1933, §§ 26-1003, 26-1004).
Motive need not be proved in order to support presumption of malice. Campbell v. State, 124 Ga. 432, 52 S.E. 914 (1905) (decided under former Penal Code 1895, §§ 61, 62).
Secretly carrying deadly weapons does not necessarily imply malice. Alford v. State, 33 Ga. 303, 81 Am. Dec. 209 (1862) (decided under former law).
No presumption of malice when ax-helve is used but not proved to be deadly. Henry v. State, 33 Ga. 441 (1863) (decided under former law).
Malice not presumed where board is hastily picked up and used as a weapon, and where there is no evidence to show that it had been prepared beforehand. Ray v. State, 15 Ga. 223 (1854) (decided under former law).
Killing by using deadly weapon in manner likely to produce death, raises presumption of intention to kill. Davis v. State, 233 Ga. 638, 212 S.E.2d 814 (1975).
Presumption of intention to kill arises from use of weapon that, in usual and natural manner in which it was used on occasion in question, is a weapon likely to produce death. Ayers v. State, 214 Ga. 156, 103 S.E.2d 574 (1958) (decided under former Code 1933, §§ 26-1002, 26-1003, 26-1004).
Usual and natural method of using weapon.
- If a deadly weapon is used in commission of homicide in the usual and natural manner in which such weapon would produce the result, presumption of intention to kill arises. Hanvey v. State, 68 Ga. 612 (1882) (decided under former Code 1873, §§ 4321, 4322); Delk v. State, 135 Ga. 312, 69 S.E. 541, 1912A Ann. Cas. 105 (1910) (decided under former Penal Code 1895, §§ 61, 62).
Presumption of intention to kill from use of pistol to kill another.
- When a deadly weapon (pistol) was used to accomplish the killing, and the weapon was used in the usual and natural manner in which such a weapon would produce that result, a presumption of an intention to kill would arise. Hilburn v. State, 57 Ga. App. 854, 197 S.E. 73 (1938) (decided under former Code 1933, §§ 26-1003, 26-1004).
Intent to kill is presumed by stabbing in back with pocketknife. Johnson v. State, 4 Ga. App. 59, 60 S.E. 813 (1908) (decided under former Penal Code 1895, §§ 61, 62); Lott v. State, 18 Ga. App. 747, 90 S.E. 727 (1916) (decided under former Penal Code 1910, §§ 61, 62).
Mandatory rebuttable presumption concerning the issue of intent is impermissible under the due process clause, but any error is harmless where the overwhelming and unrebutted evidence negates any possibility that defendant acted impulsively or otherwise unintentionally. Potts v. Kemp, 814 F.2d 1512 (11th Cir. 1987), cert. denied, 493 U.S. 876, 110 S. Ct. 214, 107 L. Ed. 2d 166 (1989).
If a homicide is proved and evidence adduced to establish homicide shows neither mitigation nor justification, malice will be presumed. Boyd v. State, 136 Ga. 340, 71 S.E. 416 (1911) (decided under former Penal Code 1910, §§ 61, 62).
Evidence of alleviation or justification may overcome malice presumption. Boyd v. State, 136 Ga. 340, 71 S.E. 416 (1911) (decided under former Penal Code 1910, §§ 61, 62).
Malice will not be presumed where proof of homicide is derived solely from admission of defendant which itself presents an exculpatory explanation of justification, excuse, or mitigation. Elder v. State, 212 Ga. 705, 95 S.E.2d 373 (1956) (decided under former Code 1933, §§ 26-1003, 26-1004).
Malice is not presumed where proof of homicide is derived through admission of defendant which itself presents matters of exculpation. Wall v. State, 5 Ga. App. 305, 63 S.E. 27 (1908) (decided under former Penal Code 1895, §§ 61, 62).
Defenses
Defendant could not argue justification as a defense since the defendant denied firing the weapon into the crowd; thus, the defendant did not meet the elements of justification whereby the defendant admitted acting with the intent to inflict an injury, but claimed doing so while in reasonable fear of suffering immediate serious harm. Broussard v. State, 276 Ga. 216, 576 S.E.2d 883 (2003).
Trial court did not err by failing to charge the jury on the defense of justification under O.C.G.A. § 16-3-21(a) because the requested charge, which contrasted justification, voluntary manslaughter, and murder, was an inaccurate statement of the law; the definition of "justifiable homicide" contained in the defendant's request was inconsistent with and had been superseded by the current statutory scheme for the affirmative offense of justification; the existence of "reasonable fears" is irrelevant to the consideration of voluntary manslaughter. Reese v. State, 289 Ga. 446, 711 S.E.2d 717 (2011), overruled on other grounds by State v. Lane, 308 Ga. 10, 838 S.E.2d 808 (2020).
Defense of accident.
- Trial court was not required, sua sponte, to instruct the jury that the state had the burden to disprove a defense of accident beyond a reasonable doubt, and the trial court's instructions in defendant's trial on charges of felony murder and cruelty to children in the first degree were adequate in the absence of a request for an additional charge; however, the state supreme court remanded the case so the trial court could hold a hearing on defendant's claim that defendant was denied effective assistance of trial counsel. Shadron v. State, 275 Ga. 767, 573 S.E.2d 73 (2002).
Defense of self-defense.
- Felony murder and aggravated assault convictions were upheld on appeal as the defendant's defense of self-defense lacked merit given evidence that any imminent threat posed against the defendant had passed, the victim was shot in the head after a confrontation had ended, and the victim had retreated to the victim's car and was being driven away at the time the fatal shot was dealt. Woolfolk v. State, 282 Ga. 139, 644 S.E.2d 828 (2007).
In a malice murder prosecution, the defendant's testimony that an unarmed person approached the defendant aggressively with the person's hands up did not establish that the defendant had a reasonable belief that stabbing the person in a manner likely to, and which did, cause death was necessary to prevent the defendant's own death or great bodily injury. Thus, the defendant was not entitled to a justification instruction under O.C.G.A. § 16-3-21(a). Boyd v. State, 284 Ga. 46, 663 S.E.2d 218 (2008).
Defendant was properly convicted of malice murder, armed robbery, and possession of a firearm during the commission of a felony because although a witness testified that the defendant told the witness that the victim was about to pull a weapon, the evidence was more than sufficient to enable a rational trier of fact to find that the defendant did not act in self-defense when the defendant shot the victim and that the defendant was guilty beyond a reasonable doubt of the crimes for which the defendant was convicted. White v. State, 287 Ga. 208, 695 S.E.2d 222 (2010).
Effect of malice in self-defense murders.
- One may kill another against whom one entertains malice, and yet not be guilty of murder. One may harbor the most intense hatred toward another; one may court an opportunity to take one's life; and yet, if, to save one's own life, the facts showed that one was fully justified in slaying one's adversary, one's malice shall not be taken into account. Shafer v. State, 193 Ga. 748, 20 S.E.2d 34 (1942) (decided under former Code 1933, §§ 26-1003, 26-1004).
Defenses of self-defense and accident are inconsistent.
- See Wilkerson v. State, 183 Ga. App. 26, 357 S.E.2d 814, cert. denied, 183 Ga. App. 907, 357 S.E.2d 814 (1987).
Accident not a defense to felony murder.
- Trial court did not err in charging the jury that, while accident can be a defense to the underlying felony of aggravated assault, it cannot be a defense to a felony murder predicated upon the underlying felony of aggravated assault. Tessmer v. State, 273 Ga. 220, 539 S.E.2d 816 (2000).
No reasonable probability existed that the outcome of the defendant's murder trial would have been different even if trial counsel presented an expert's testimony as to the defendant's borderline intellectual functioning and organic brain damage in the guilt/innocence phase of the original trial because the defendant's own testimony acknowledged that the defendant shot the vehicle occupant purposefully, as opposed to accidentally, in attempting to obtain a vehicle to escape, and even if the defendant had been convicted of only malice murder, instead of felony murder, the defendant would have still remained eligible for the death penalty. Humphrey v. Nance, 293 Ga. 189, 744 S.E.2d 706 (2013).
Inneffective assistance of counsel in preparing defense.
- Habeas court correctly concluded that trial counsel rendered deficient performance by failing to investigate the factual defense to a crime and failing to obtain available testimony confirming that defense and their client's own statements to them. Furthermore, counsel's decision to end the investigation into an individual's involvement when they did was neither consistent with professional standards nor reasonable in light of the evidence obtained by habeas counsel, evidence that would have caused reasonably competent counsel to investigate further and therefore defendant was granted a new trial. Terry v. Jenkins, 280 Ga. 341, 627 S.E.2d 7 (2006).
Self-defense claim to murder rejected.
- Evidence that a homicide victim was found in a truck with a cup of coffee between the victim's legs and a pack of cigarettes balanced on the victim's thigh; that the defendant approached the truck armed with a gun and did not see a weapon in the victim's possession; that the defendant claimed the victim was about to drag the defendant down the street with the vehicle; and that, after fatally shooting the victim, the defendant fled and did not report the events, was sufficient for the jury to find beyond a reasonable doubt that the defendant was not reasonably acting in self-defense. Bell v. State, 280 Ga. 562, 629 S.E.2d 213 (2006).
Accidental discharge of gun defense rejected.
- Evidence supported a defendant's conviction for malice murder as the defendant went to the victim's home and shot the victim in the head; the defendant admitted the defendant had the gun in the defendant's hand when the defendant approached the victim, but claimed that the gun accidentally discharged when the defendant put the defendant's hands up to deflect a tray thrown at the defendant by the victim. Mayberry v. State, 281 Ga. 144, 635 S.E.2d 736 (2006).
Alibi defense rejected.
- Evidence presented at trial was sufficient to enable a rational trier of fact to find the defendant guilty beyond a reasonable doubt of murder, felony murder, armed robbery, and aggravated assault because it was for the jury to determine the credibility of the witnesses, and the jury was authorized to disbelieve the alibi defense the defendant proffered. Newsome v. State, 288 Ga. 647, 706 S.E.2d 436 (2011).
Evidence of Malice
Reckless disregard of human life.
- To demonstrate malice murder, evidence that the defendant acted in reckless disregard of human life is as equally probative as evidence that defendant acted with a specific intent to kill. Parker v. State, 270 Ga. 256, 507 S.E.2d 744 (1998), overruled on other grounds, 287 Ga. 881, 700 S.E.2d 394 (2010).
Defendant's actions demonstrated malice.
- Based on defendant's behavior before the shooting, the obscene comment defendant made about the victim, and defendant's actions afterwards, defendant possessed the requisite malice, pursuant to O.C.G.A. § 16-5-1(a), when defendant shot and killed the victim. Sapp v. State, 273 Ga. 472, 543 S.E.2d 27 (2001).
Evidence was sufficient to support the defendant's conviction for malice murder where the defendant entered into an altercation with the victim, removed a pistol from behind the defendant's back and struck the victim with it resulting in a struggle over the pistol and it discharging, grazing the defendant's neck; the defendant gained control of the pistol and the victim went behind a nearby parked car where a bystander told the defendant that the defendant should not shoot the victim. The defendant stated that the victim shot the defendant with the defendant's own gun and the defendant approached the parked car and stated to the victim that the victim would die that day thereafter the defendant shot the victim several times, fatally hitting the victim once in the chest. Barner v. State, 276 Ga. 292, 578 S.E.2d 121 (2003).
There was sufficient evidence to support the jury's verdict that the defendant was guilty beyond a reasonable doubt of aggravated assault in violation of O.C.G.A. § 16-5-21 and of malice murder in violation of O.C.G.A. § 16-5-1, because the defendant saw the victim trying to break up a fight between the victim's sibling and another person, the defendant became angry and followed the victim and the victim's sibling after the fight broke up, the defendant then swore at them and shot at them, and the defendant's claim of self-defense was not found to be credible. Harris v. State, 278 Ga. 596, 604 S.E.2d 788 (2004).
Evidence supported the defendant's conviction of malice murder because the defendant pointed a loaded revolver at the victim and pulled its trigger twice, while driving, fatally wounding the victim, the defendant did not call9-1-1 from the defendant's cell phone and drove past a hospital, and the revolver had a hammer block, preventing it from firing unless pressure was applied to the trigger. Reed v. State, 279 Ga. 81, 610 S.E.2d 35 (2005).
Evidence introduced at trial was sufficient for a rational trier of fact to find beyond a reasonable doubt that the defendant was guilty of malice murder because, while the defendant and the victim were talking in the parking lot of a store during the early morning hours, the defendant shot the victim in the face and took the victim's wallet. Roop v. State, 279 Ga. 183, 611 S.E.2d 34 (2005).
Evidence of malice was sufficient for a conviction because the defendant was armed before going to the victim's home, shot the victim twice from a distance of five feet and, after some delay, the defendant shot a third time, into the victim's mouth and the victim was unarmed; the defendant told a police investigator that the victim got in the defendant's face so the defendant shot the victim. Cooper v. State, 279 Ga. 189, 612 S.E.2d 256 (2005).
Evidence was sufficient to support the defendant's convictions for malice murder and possession of a firearm during the commission of a felony, as the circumstantial evidence showed the defendant shot the victim three times, that the defendant did so in retaliation for the victim allegedly arranging to rob the codefendants of certain property they planned to sell to buy drugs, that the defendant did not report the shooting but, instead, fled the scene, and stated "just shot that damn boy," but did not claim to have shot the victim accidentally. Glenn v. State, 279 Ga. 277, 612 S.E.2d 478 (2005).
There was sufficient evidence to convict the defendant of malice murder under O.C.G.A. § 16-5-1 based upon the defendant's actions of instigating the gang attack on the victim and participating in the attack with a gun even though the defendant did not actually shoot the victim; that the defendant was criminally responsible under O.C.G.A. § 16-2-20. Ros v. State, 279 Ga. 604, 619 S.E.2d 644 (2005).
There was sufficient evidence to uphold a defendant's convictions for malice murder, aggravated assault, and possession of a firearm during the commission of a crime in connection with the fatal shootings of two men, and the wounding of four other men, as the jury was authorized to accept an accomplice's version of events, including that robbery was the initial motive and that the defendant fired the shots that killed and wounded the victims. The fact that conflicts in the evidence were resolved adversely to the defendant did not render the evidence insufficient and there was ample evidence that the defendant acted with implied malice, therefore, there was no error in determining that the killings were malice murders rather than felony murders. Jackson v. State, 282 Ga. 668, 653 S.E.2d 28 (2007).
Legally sufficient evidence was presented to convict a defendant of malice murder as testimony was presented that the defendant contacted an individual to get rid of the defendant's spouse due to a contentious divorce and the individual made arrangements and brought a friend to the spouse's home where the friend posed as a flower delivery person and shot the spouse when the door was opened; the murder occurred on the day of the final divorce hearing. Sullivan v. State, 284 Ga. 358, 667 S.E.2d 32 (2008).
Evidence that the defendant went to the victim's home with a gun, intending to rob the victim, and that after fatally shooting the victim, the defendant continued with the defendant's plan to steal the victim's money, and later attempted to destroy evidence of the crimes, was sufficient to establish the malice required to convict the defendant of malice murder. Stahl v. State, 284 Ga. 316, 669 S.E.2d 655 (2008).
Defendant's conviction of malice murder was proper. Based on videotape evidence showing that the defendant followed the victim out of a store, jumped on the victim from behind, and stabbed the victim multiple times, the jury was authorized to determine that the defendant acted with malice aforethought. Brown v. State, 284 Ga. 838, 672 S.E.2d 651 (2009).
Trial court properly denied the defendant's motion for a directed verdict of acquittal in a trial for malice murder, O.C.G.A. § 16-5-1(b), because there was evidence that the victim did not provoke the defendant's attack and that the defendant acted with an abandoned and malignant heart by repeated acts of violence, including the use of a choke hold and the defendant's refusal to remove the defendant's body from the chest of the comatose victim. Hicks v. State, 285 Ga. 386, 677 S.E.2d 111 (2009).
Sufficient evidence of malice aforethought was presented in support of the malice murder conviction, including the manner in which the victim was assaulted prior to death, which caused blunt force impact injuries and the fact that the victim was bound and gagged so tightly that the base of the victim's tongue was damaged. Dupree v. State, 303 Ga. 885, 815 S.E.2d 899 (2018).
Defendant alone with victim.
- Evidence that the wounds a murder victim received in each side of the head were each sufficient to instantaneously debilitate the victim and render any voluntary movement on the victim's part impossible, along with the defendant's admission that the defendant was alone with the victim at the time of the victim's death, were sufficient to allow a jury to find the defendant committed malice murder and to allow the jury to reject the defendant's claim that the victim was responsible for the victim's own death. Brewer v. State, 280 Ga. 18, 622 S.E.2d 348 (2005).
Crime participant's testimony relevant.
- During the appellant's trial for felony murder, aggravated assault, and possession of a firearm during the commission of a felony, it was not error to admit the testimony of a witness related to the witness's personal observations as a participant and witness to the crimes as the testimony clearly was damaging to the appellant's defense, it was relevant to establish the appellant's guilt and the circumstances surrounding the charged crimes, and did not improperly place the appellant's character in issue. Williams v. State, 298 Ga. 538, 783 S.E.2d 594 (2016).
Contradictory testimony did not prohibit murder conviction.
- When defendant argued that the evidence was insufficient to sustain defendant's conviction for felony murder of a person, O.C.G.A. § 16-5-1, while in the commission of an aggravated assault, aggravated assault on another person, and two counts of possession of a firearm during the commission of a felony because codefendants who testified against the defendant gave contradictory testimony, the appellate court noted that the inconsistent testimony was put before the jury along with defendant's admission that the defendant was the driver, as well as other physical and circumstantial evidence of defendant's involvement in the shooting. Thus, the convictions were affirmed. Escutia v. State, 277 Ga. 400, 589 S.E.2d 66 (2003).
Despite the defendant's contention that a voluntary manslaughter verdict should have been returned, given that the victim invited a violent confrontation, eyewitness testimony which established that the defendant was driving recklessly before confronting the victim with a knife, which led to the fatal stabbing, supported a malice murder conviction. Lonergan v. State, 281 Ga. 637, 641 S.E.2d 792 (2007).
Evidence sufficient to support conviction.
- Evidence that defendant and another person hijacked the victim, put the victim in the trunk of the car, the other person later shot the victim, both subsequently dumped the body and returned the car, was sufficient to support defendant's conviction of malice murder and possession of a weapon during a felony. Washington v. State, 276 Ga. 655, 581 S.E.2d 518 (2003).
Evidence that right after the defendant lost money gambling, the defendant and two other persons agreed to go rob a store, that the defendant was armed for that purpose, that the defendant and the other persons then drove to the store, that the defendant entered the store to help facilitate the robbery, and that the defendant looked on as one of the other persons demanded money from the clerk and then shot the clerk was sufficient to support the defendant's conviction for malice murder. Collins v. State, 276 Ga. 726, 583 S.E.2d 26 (2003).
Evidence was sufficient to convict the defendant of malice murder when the defendant drove the defendant's sibling to a rendezvous with the victim, then drove while the sibling shot the victim to death in the defendant's car; thus, the defendant's life sentence was affirmed. Brown v. State, 277 Ga. 623, 593 S.E.2d 343 (2004).
Evidence that the defendant had previously had difficulties in the defendant's relationship with the murder victim, that the defendant had previously fired a gun into the bedroom where the murder victim and the victim's love interest were sleeping, that the defendant might have killed the victim if the victim woke the defendant and the defendant was mad, that the murder victim's body was found in the woods and the defendant stated that the defendant had been in the woods because the defendant's car broke down, and that the victim died of ligature strangulation, was sufficient to support the defendant's conviction for malice murder. Moody v. State, 277 Ga. 676, 594 S.E.2d 350 (2004).
Because the defendant fatally stabbed the defendant's estranged spouse's love interest, stabbed the spouse in the head, and then bragged about those actions, the evidence was sufficient to convict the defendant of malice murder and aggravated assault. Henry v. State, 279 Ga. 615, 619 S.E.2d 609 (2005).
Evidence that the defendant took money from the one victim, beat the victim while doing so, that the defendant was armed at the time, that the defendant had the victim removed from the defendant's house by the codefendants so that the one victim could be murdered elsewhere, and that the second victim was removed from the defendants house by another codefendant, all after the one victim and the second victim were suspected of plotting to rob the defendant, who was selling illegal drugs from the defendant's home, was sufficient to support the defendant's convictions for malice murder, kidnapping, armed robbery, and being in possession of a firearm during the commission of a felony. Mason v. State, 279 Ga. 636, 619 S.E.2d 621 (2005).
Evidence was sufficient to support the defendant's conviction for malice murder as the evidence showed that the defendant was with the victim shortly before the victim's body was found, that the defendant admitted stabbing the victim multiple times, and that police recovered evidence consistent with the defendant having stabbed the victim between 45 and 57 times after the defendant and the victim smoked crack cocaine together. Cunningham v. State, 279 Ga. 694, 620 S.E.2d 374 (2005).
Sufficient evidence supported the defendant's conviction for malice murder because: (1) two eyewitnesses who were the defendant's acquaintances saw the defendant commit the crime; (2) the defendant's fingerprints were found on the murder weapon, from which bullets and shell casings recovered from the crime scene and the victim's body were fired; (3) when the defendant was arrested the defendant was wearing the type of athletic shoes a witness testified the defendant was wearing on the night of the shooting; and (4) the defendant's love interest testified that the defendant sometimes drove a small red car similar to the one a witness testified the defendant drove on the night of the crimes. Washington v. State, 279 Ga. 722, 620 S.E.2d 809 (2005).
Because the defendant asked the victim, a rival gang member, whether the victim had "put a hit" on the defendant, and the victim indicated that the victim had not done so, but did know who did it, whereupon the defendant turned and fatally stabbed the victim, the evidence supported the defendant's conviction of malice murder, in violation of O.C.G.A. § 16-5-1, as well as a conviction for possession of a knife during the commission of a crime. Garrett v. State, 280 Ga. 30, 622 S.E.2d 323 (2005).
Evidence was sufficient to support the defendant's convictions of burglary, armed robbery, and malice murder, in violation of O.C.G.A. §§ 16-5-1,16-7-1(a), and16-8-41, respectively, because the defendant and a friend decided to rob the victim and they entered the victim's apartment unlawfully with that intent, stabbed and bludgeoned the victim, and took a lock-box and left. Redwine v. State, 280 Ga. 58, 623 S.E.2d 485 (2005).
There was sufficient evidence to find the defendant guilty of malice murder, burglary, and possession of a gun during the commission of a crime because a witness testified that the witness, the defendant, and the defendant's sibling drove around looking for a home to burglarize and that while in a house, the two victims came home unexpectedly and were killed; also, DNA found at the crime scene matched the defendant. Denny v. State, 280 Ga. 81, 623 S.E.2d 483 (2005).
Evidence was sufficient to authorize a rational trier of fact to find the defendant guilty of malice murder beyond a reasonable doubt because a witnesses testified that, after fighting over a debt, the defendant chased the victim on foot and then in a car, fatally shot the victim in the head, and then fled. Jones v. State, 280 Ga. 205, 625 S.E.2d 1 (2005).
Evidence was sufficient to support convictions of malice murder after the elderly victim was stabbed to death, although the victim usually kept large sums of money at the victim's home in a bank envelope, and should have had about $800 in cash, no money was found after the victim's death, the defendant was seen at the victim's home the day before the victim's body was found, the defendant was seen with about $800, the defendant gave several people money for various reasons and said that the money was from a bank envelope from a person the defendant did work for, and when the defendant told police that the defendant worked for the victim on the day of the victim's death, and that the victim paid the defendant $20, but denied that the defendant harmed the victim. Patterson v. State, 280 Ga. 132, 625 S.E.2d 395 (2006).
Malice murder and attempted arson convictions were upheld as: (1) the evidence presented showed that an attempted arson was inextricably linked to the victim's murder, and the jury was authorized to find beyond a reasonable doubt that the defendant was guilty; (2) the admission of two handwritten documents that the defendant had penned was proper as their prejudicial impact did not outweigh their probative value; and (3) the trial court did not abuse the court's discretion in determining that any prejudicial impact of a religious prayer asking for strength, and an expression of uncertainty as to what "makes me tick," did not outweigh the probative value of the evidence. Fortson v. State, 280 Ga. 376, 628 S.E.2d 104 (2006).
Defendant's conviction of malice murder was supported by sufficient evidence that, during a fight with the defendant, the victim threw a gun out of a car window and that the defendant retrieved the gun and shot the victim; later, when interrogated by the police, the defendant gave a statement and led police to the murder weapon; the element of malice was not negated simply because the defendant and the victim were fighting when the fatal shots were fired. Moore v. State, 280 Ga. 766, 632 S.E.2d 632 (2006).
Because each of the three defendants made statements implicating themselves in the crimes of malice murder in violation of O.C.G.A. § 16-5-1 and armed robbery in violation of O.C.G.A. § 16-8-41(a) and because money and electronic equipment were stolen from the home, there was sufficient evidence to convict the defendants of the crimes. Brooks v. State, 281 Ga. 14, 635 S.E.2d 723 (2006), cert. denied, 549 U.S. 1215, 127 S. Ct. 1266, 167 L. Ed. 2d 91 (2007).
Evidence was sufficient to convict the defendant of malice murder under O.C.G.A. § 16-5-1 and of possession of a knife in the commission of a felony in violation of O.C.G.A. § 16-11-106; the defendant called9-1-1 to report the defendant's killing of the victim, who had earlier broken up with the defendant, and the victim was found with fatal stab wounds and a five-inch knife blade embedded in the victim's neck. Perez v. State, 281 Ga. 175, 637 S.E.2d 30 (2006).
Evidence was sufficient to convict the defendant of malice murder under O.C.G.A. § 16-5-1 and armed robbery under O.C.G.A. § 16-8-41 despite the defendant's alibi; the jury was permitted to reject the alibi testimony, and the jury could have found that the circumstantial evidence, which included the defendant's fingerprints and footprints at the scene and a car that defendant was known to drive, was sufficient to exclude every reasonable hypothesis save that of the defendant's guilt. Daniels v. State, 281 Ga. 226, 637 S.E.2d 403 (2006).
Evidence was sufficient to support a defendant's conviction for felony murder after the defendant's romantic friend testified to being present in the victim's motel room when the defendant shot the victim. White v. State, 283 Ga. 566, 662 S.E.2d 131 (2008).
Sufficient evidence supported the defendant's malice murder conviction. The jury was free to reject the defendant's claim that one of the victims fired the first shot, and evidence of a struggle between the defendant and one victim over control of a handgun did not require that there be a finding of voluntary manslaughter. As for intent, malice murder could be shown by evidence that the defendant acted where no considerable provocation appeared and where all the circumstances of the killing showed an abandoned and malignant heart. Allen v. State, 284 Ga. 310, 667 S.E.2d 54 (2008).
Since the evidence established the defendant shot three men and took money from one of them, and two of the men survived and identified the defendant as the shooter, the evidence was sufficient to convict the defendant of malice murder. Abdullah v. State, 284 Ga. 399, 667 S.E.2d 584 (2008).
Sufficient evidence was presented to convict a defendant of malice murder because, although the defendant gave conflicting statements to the police, the defendant admitted shooting the victim, but in self defense, and eyewitness testimony indicated that an individual handed a gun to the defendant, who ran up to the victim, accused the victim of robbery, and fatally shot the victim in the head. Hill v. State, 284 Ga. 521, 668 S.E.2d 673 (2008).
Evidence was sufficient to support a defendant's conviction for malice murder and possession of a firearm during the commission of a crime when: (1) a person fitting the defendant's description was seen talking to a person in a car at the victim's home; (2) a neighbor found the victim sitting behind the wheel of the car with gunshot wounds to the head; (3) the victim told several witnesses that the defendant was the shooter and described the vehicle the defendant had been driving; and (4) paint found on the bumper of the defendant's vehicle was consistent with the paint on the victim's car. Thomas v. State, 284 Ga. 540, 668 S.E.2d 711 (2008).
Defendant's conviction for malice murder was supported by legally sufficient evidence because while the defendant claimed that the fatal gunshot could not have come from the defendant's gun as there was no stippling on the victim's body or clothes and, thus, the fatal shot had to be fired from more than three feet away, the precise location of the shooter based on the resting place of a casing could not be determined as the casings from the gun used by the defendant typically flew six to ten feet rearward and to the right when the gun was fired. Baker v. State, 284 Ga. 537, 668 S.E.2d 716 (2008).
Convictions against the defendant for malice murder, burglary, armed robbery, and aggravated assault were supported by evidence that the defendant entered the victim's home, hit the victim multiple times about the head and face with a tree limb with a metal piece on it, and wrote a check in defendant's name from the victim's checkbook; evidence included witness testimony from the bank where defendant cashed the check, defendant's confession to police, and physical evidence. Bell v. State, 284 Ga. 790, 671 S.E.2d 815 (2009).
Convictions against the defendant for malice murder and possession of a firearm during the commission of a crime were supported by evidence that the defendant shot a victim in the back of the head during a drug sale because the victim allegedly set up the defendant's brother; at trial, there was testimony from witnesses to various parts of the incident as well as physical evidence that connected the defendant to the crime. Sheppard v. State, 284 Ga. 775, 671 S.E.2d 830 (2009).
Evidence was sufficient to enable the jury to find the defendant guilty of malice murder beyond a reasonable doubt as several witnesses saw the victim leave with the defendant in the defendant's car, and evidence showed that shortly after the murder the defendant repainted the car, and, shortly after the victim's remains were discovered, sold the car. Manley v. State, 284 Ga. 840, 672 S.E.2d 654 (2009).
Sufficient evidence was presented to convict a defendant of malice murder and cruelty to children under O.C.G.A. § 16-5-70(b) because the defendant testified that the defendant shook the five-year-old victim after the victim spit up dinner and in so doing, struck the victim's head against the railing of a bunk bed; the victim died a few days later of massive head trauma and intracranial bleeding. Wright v. State, 285 Ga. 57, 673 S.E.2d 249 (2009).
Evidence was sufficient to support defendant's conviction of murder, O.C.G.A. § 16-5-1, under circumstances in which, among other things, the record was replete with evidence that the defendant, not another buyer, arranged a drug sale with the victim, that the defendant knew the other buyer was armed when the drug sale occurred, that the defendant argued with the victim over the price for the drugs, precipitating the shooting, that the defendant fled the scene and destroyed evidence, and that the defendant threatened a witness; the defendant testified that, during the drug transaction, the victim turned with a gun in the victim's hand and the other buyer shot the victim. Duggan v. State, 285 Ga. 363, 677 S.E.2d 92 (2009).
Evidence authorized the jury to conclude that the defendant was guilty beyond a reasonable doubt of malice murder, armed robbery, and aggravated assault because defendant and defendant's codefendants entered an apartment masked and armed with an assault rifle, and the defendant fired the rifle at the victim and fatally wounded the victim. Zackery v. State, 286 Ga. 399, 688 S.E.2d 354 (2010).
Because defendant admitted to being in the back seat of the victims' car and that defendant sold the victims' drugs, and because bullets recovered from the bodies matched the pistol and ammunition found in a box in defendant's house, the evidence was sufficient to find defendant guilty of malice murder and possession of a firearm during the commission of a felony. Barnes v. State, 287 Ga. 423, 696 S.E.2d 629 (2010).
Evidence was sufficient to support defendant's conviction for malice murder since there was testimony that the victim was going to require the defendant to move out of the victim's house because of the defendant's bizarre behavior brought about by drug use, and since the evidence was sufficient to authorize the jury to conclude that the defendant did not act in self-defense. White v. State, 287 Ga. 713, 699 S.E.2d 291 (2010).
Evidence was sufficient to authorize a rational trier of fact to find the defendants guilty beyond a reasonable doubt of malice murder and aggravated assault because the independent corroborating evidence in the case was substantial; an accomplice's testimony implicating the defendants was corroborated by the aggravated assault victim, who positively identified one of the defendants, that the defendant's own admission to a woman in the defendant's apartment, evidence that the second defendant had sustained shotgun wounds on the evening of the crimes, ballistics evidence tying that defendant to the crime scene, and the presence of that defendant's blood on the first defendant's clothing and in the getaway vehicle. Ward v. State, 288 Ga. 641, 706 S.E.2d 430 (2011).
Evidence was sufficient under former O.C.G.A. § 24-4-6 (see now O.C.G.A. § 24-14-6) to support the defendant's convictions for malice murder, felony murder, aggravated assault, possession of a knife during the commission of a crime, financial transaction card fraud, and recidivism because there was evidence placing the defendant at the victim's home during the time of the murder and evidence of the victim's blood on the defendant's shoes, which the defendant intentionally chose not to wear when being questioned by police; the evidence, together with the defendant's own statements regarding the defendant's use of the victim's debit card, was sufficient to authorize the jury to determine that the state excluded all reasonable hypotheses save that of the defendant's guilt and to find the defendant guilty beyond a reasonable doubt of the crimes of which the defendant was convicted. Johnson v. State, 288 Ga. 771, 707 S.E.2d 92 (2011).
Evidence was sufficient to authorize a rational trier of fact to find the defendant guilty beyond a reasonable doubt of felony murder and possession of a firearm during the commission of a felony because the defendant and a codefendant began shooting across a street at someone, who returned fire, and the victim was an innocent 16-year-old bystander who was killed during the shootout. Norris v. State, 289 Ga. 154, 709 S.E.2d 792 (2011).
Evidence was sufficient for a rational trier of fact to find the defendant guilty beyond a reasonable doubt of malice murder, felony murder based on aggravated assault, possession of a firearm during the commission of a crime, and use of a firearm by a convicted felon because the defendant admitted to purposefully putting a gun to the fearful victim's head and pulling the trigger. Jones v. State, 289 Ga. 145, 710 S.E.2d 127 (2011).
Evidence was sufficient for a rational trier of fact to find the defendant guilty beyond a reasonable doubt of felony murder because numerous eyewitnesses saw the defendant fire a gun into a crowd striking the victim, shout expletives, and assert that the defendant was a killer; that the state did not produce certain evidence did not mean that the evidence presented was insufficient to allow a jury to find the defendant guilty of murder. Glass v. State, 289 Ga. 542, 712 S.E.2d 851 (2011).
Possession of a stolen automobile was sufficient to support a felony murder conviction because the defendant's possession of the stolen car played a role in the defendant's decision to flee the police; the defendant could have believed that the defendant could escape in the stolen car, where the defendant could not have escaped on foot, and the decision to remain in the stolen car in order to flee created a foreseeable risk of death. Johnson v. State, 289 Ga. 650, 715 S.E.2d 99 (2011).
Evidence was sufficient to enable a rational trier of fact to find the defendant guilty beyond a reasonable doubt of malice murder, felony murder while in the commission of armed robbery, armed robbery, and conspiracy to violate the Georgia Controlled Substances Act, O.C.G.A. § 16-13-20 et seq., through a violation of O.C.G.A. § 16-13-30(j)(1), because: (1) the defendant and another buyer met with the victim and another seller where the defendant and the other buyer inspected marijuana which the victim and the other seller had for sale; (2) after some discussion about price, the victim told the defendant what the price was and that the defendant could take it or leave it; (3) the defendant said that the defendant would take it, pulled a gun from the defendant's waistband, and fatally shot the victim; and (4) there was conflicting testimony as to whether the defendant took the marijuana and ran away with the marijuana after shooting the victim. Darville v. State, 289 Ga. 698, 715 S.E.2d 110 (2011).
Defendant's convictions for armed robbery, aggravated assault, and malice murder were based on sufficient evidence where a victim in an apartment next to the defendant's was fatally stabbed multiple times, there was physical evidence that tied the defendant to the criminal incident, and the defendant confessed to committing the crimes. Culpepper v. State, 289 Ga. 736, 715 S.E.2d 155 (2011).
Evidence that the defendant began the conflict, punching the victim shortly before the codefendant began to attack the victim, the defendant stood by and watched as the codefendant mercilessly continued the assault and encouraged the codefendant to "beat the victim's ass," and the defendant drove the codefendant away from the scene was sufficient for the jury to find the defendant guilty beyond a reasonable doubt of murder. Simmons v. State, 289 Ga. 773, 716 S.E.2d 165 (2011).
Defendant's convictions of malice murder, armed robbery, and other crimes were not based on the uncorroborated testimony of an accomplice in violation of former O.C.G.A. § 24-4-8 (see now O.C.G.A. § 24-14-8) as: 1) a victim testified that intruders took a wallet that police later found in the defendant's home; and 2) cell phone tower records established that the defendant and the accomplice were exchanging phone calls during the times when the crimes were committed and within the vicinity of the crime sites. Jackson v. State, 289 Ga. 798, 716 S.E.2d 188 (2011).
Because the defendant pointed a gun at the victim while defendant's accomplices robbed the victim, and thereafter shot at the victim's trailer, hitting a child and killing the victim's sister-in-law, the evidence was sufficient to find the defendant guilty of felony murder, aggravated assault, armed robbery, cruelty to children, possession of a gun during the commission of a crime, and possession of a revolver by a person under the age of 18. Lytle v. State, 290 Ga. 177, 718 S.E.2d 296 (2011).
Evidence was sufficient to support the defendant's convictions for felony murder, aggravated assault, possession of a firearm during the commission of a crime, and participation in criminal street gang activity. The defendant and fellow gang members walked toward a group of teenagers in a front yard while yelling and making gang signals; the defendant fired once into the crowd, killing the victim, who was unarmed; and the defendant, who fled the scene, was the only person who fired a weapon and was identified to police as the shooter by witnesses who knew the defendant by name. Jackson v. State, 291 Ga. 25, 727 S.E.2d 120 (2012).
Evidence was sufficient to enable a rational trier of fact to find the defendant guilty of malice murder, conspiracy to commit armed robbery, and possession of a firearm during the commission of a crime because the defendant's claim that, pursuant to O.C.G.A. § 16-4-9, the defendant renounced and abandoned the conspiracy and that a co-conspirator fatally shot the victims was contradicted by the physical evidence at trial; shell casings from two guns were found at the murder scene and in positions indicating that there were two weapons fired by different individuals. Bailey v. State, 291 Ga. 144, 728 S.E.2d 214 (2012).
Malice murder conviction was supported by evidence that, inter alia, multiple witnesses saw an individual matching the defendant's description in an argument prior to hearing multiple gunshots, the defendant admitted to a friend that the defendant shot the victim, phone records showed the defendant and the victim were communicating prior to the shooting and the defendant was in the vicinity of the hotel during that time, and the defendant was acting as a middle man for the victim's drug deal gone bad. Brown v. State, 291 Ga. 892, 734 S.E.2d 23 (2012).
Evidence was sufficient to convict the defendant of malice murder as the defendant admitted to firing two shots from the passenger's side of the car while leaning over the roof; a bullet hit the first victim in the neck, severing the first victim's spine and spinal cord; the first victim died several days later after being removed from life support; the first victim died as a result of the injuries inflicted by defendant as the first victim's injuries were such that the first victim could not live once life support systems were removed; and the defendant did not act in self defense. Browder v. State, 294 Ga. 188, 751 S.E.2d 354 (2013).
Evidence was sufficient to find the defendant guilty of malice murder because the defendant and the victim had a domestic dispute over the money that the defendant had borrowed from the victim; two days later, human body parts that were later identified as the victim's were found scattered around a secluded, wooded area near a house owned by the defendant; a coroner examined the remains and determined that the cause of death was homicide by unknown cause; the defendant never reported the victim missing; the defendant told conflicting stories about the victim's disappearance and the defendant's activities around that time; and the defendant towed the victim's car to a hotel parking lot and left it. Benson v. State, 294 Ga. 618, 754 S.E.2d 23 (2014).
Evidence was sufficient to convict the defendant of malice murder as there was ample evidence to support a finding that the defendant deliberately fired the shotgun with the specific intent to kill the victim as the defendant was angry about a stolen CD player; the defendant went out to the shed to get the shotgun before the victim arrived home; the defendant told an aunt that the defendant had something for the victim and told the defendant's brother that the defendant planned to shoot the victim; the defendant deliberately pointed the shotgun at the victim; the defendant worked the pump to chamber a shell and shot the victim; and the victim died from the gunshot wound. Jones v. State, 303 Ga. 496, 813 S.E.2d 360 (2018).
Evidence was sufficient to convict the defendant of malice murder of the first victim because, although the defendant and the first victim were playfully shadowboxing and wrestling and the defendant gave the defendant's gun to the second victim to hold, when the playfulness of the situation changed, the second victim put the gun down and stepped in between the defendant and the first victim in an effort to deescalate the situation, but, after the defendant swung at the first victim and missed, and the first victim punched the defendant in the eye, the defendant retrieved and fired the defendant's gun, shooting the second victim in the arm, and fatally shooting the first victim, who witnesses testified was unarmed and tried to run away. Russell v. State, 303 Ga. 478, 813 S.E.2d 380 (2018).
Evidence was sufficient to convict the defendant of malice murder of the 15-year-old victim because, after the defendant became aware that the victim might be pregnant, the defendant discussed the situation with the co-defendant, telling the co-defendant that the defendant wanted to kill the victim; the defendant began beating the victim with the hammer; the defendant handed the co-defendant the hammer, and the co-defendant hit the victim with the hammer on the head and upper body as the victim lay on the floor, to make sure that the victim was dead; and the co-defendant later confessed to the co-defendant's role in the victim's murder, and testified for the state at the defendant's trial. Smith v. State, 303 Ga. 643, 814 S.E.2d 411 (2018).
Evidence was sufficient to convict the defendant of malice murder, possession of a firearm during the commission of a crime, and possession of a firearm by a convicted felon, based on the shooting death of the first victim, because the jury heard testimony that, after the defendant's girlfriend had been involved in a large-scale physical altercation in a club's parking lot, the defendant - who was a convicted felon - fired a weapon into the lingering crowd as the defendant was leaving, killing the first victim; and the state adduced testimony that nothing found at the scene suggested that the defendant had been provoked or attacked with guns or bottles. Blount v. State, 303 Ga. 608, 814 S.E.2d 372 (2018).
Evidence was sufficient to convict the defendant of malice murder of the first victim, aggravated assault of the second victim, and possession of a firearm during the commission of a crime because the defendant pulled alongside the second victim's car at an intersection and shot into the passenger side of the car several times, killing the first victim; the second victim identified the defendant as the shooter; and the video recordings from the gas station's surveillance system and the city's street surveillance system that showed the incident that took place at the gas station before the shooting and showed the shooting were played for the jury. Johnson v. State, 305 Ga. 475, 826 S.E.2d 89 (2019).
Evidence was sufficient to convict the defendant of malice murder as the defendant acted with at least implied malice when the defendant shot the victim because the defendant shot at an unarmed man who was driving away, following an argument over a distasteful but relatively insignificant encroachment on personal property; and the jury was entitled to reject the defendant's argument that the evidence supported a conclusion that the defendant was overcome with emotion incited by the victim's statements and fired at the victim as a result of a sudden, violent, and irresistible passion that was reasonable under the totality of the circumstances. Williams v. State, 306 Ga. 674, 832 S.E.2d 843 (2019).
State did more than rely on circumstantial evidence in convicting defendant.
- There was sufficient evidence to support the defendant's murder conviction and the defendant's argument that the state relied solely on circumstantial evidence was belied by the admission of the defendant's statement to police that the defendant hit the victim with the ax handle. Bunnell v. State, 292 Ga. 253, 735 S.E.2d 281 (2013).
Evidence was sufficient to convict the defendant of malice murder because the defendant struck the defendant's spouse with a hammer multiple times; the spouse had bruises to the spouse's arms and legs that were consistent with defensive wounds; the defendant admitted to hiding the spouse's body in a freezer and leading others to believe that the spouse had left the defendant; and, although the defendant testified at trial that the defendant did not intend to kill the defendant's spouse, the jury was free to conclude otherwise. White v. State, 303 Ga. 533, 813 S.E.2d 592 (2018).
Evidence sufficient to support conviction for malice murder of estranged spouse.
- Evidence was sufficient to support the defendant's conviction for malice murder because, after the entry of a family violence protective order, the defendant purchased a knife with a large blade, followed the victim, who was the defendant's estranged spouse, and attempted to talk with the victim, appeared at a grocery store where the victim was, yelled at the victim, and stabbed and slashed the victim multiple times, resulting in the victim's death. The defendant then waited for the police, and stated that the defendant would not hurt anyone else, that the defendant came to do what the defendant needed to do, that no one got away with hurting the defendant, and that the victim, whom the defendant called by a derogatory term, deserved it because of what the victim did to the defendant in court. Weaver v. State, 288 Ga. 540, 705 S.E.2d 627 (2011).
Evidence sufficient to support conviction of murder of grandparents.
- There was sufficient evidence to support the defendant's convictions for murder, committed while the defendant was engaged in the capital felonies of armed robbery, aggravated battery, and kidnapping with bodily injury, which included accomplice testimony and items belonging to the victims as well as blood found in the defendant's motel room. Defendant tried to rob a friend's love interest's grandparents, tortured them with a hot poker, and bashed their heads in with an axe. Sealey v. State, 277 Ga. 617, 593 S.E.2d 335 (2004), overruled on other grounds by Willis v. State, 304 Ga. 686, 820 S.E.2d 640 (2018).
Evidence sufficient to support conviction of murder on parents.
- Evidence supported conviction for malice murder, burglary, and hindering a police officer because the defendant was at the back door of the defendant's parent's home without authorization, and fled when an officer tried to handcuff the defendant, the defendant's parent was found dead from massive head injuries, and the parent's rings, a lawn mower blade, and a hatchet were found on the defendant's person or stashed in bags outside the home. Smith v. State, 279 Ga. 172, 611 S.E.2d 1 (2005).
Evidence sufficient to convict police officer of malice murder.
- Evidence was sufficient to allow a rational trier of fact to find the defendant guilty of malice murder because: (1) a blood trail led investigators to conclude the perpetrator had a pre-existing leg injury, which the defendant had; (2) the defendant had fresh bruises and cuts on the defendant's hands for which the defendant had no plausible explanation; (3) the defendant, who was a police officer, no longer had the defendant's service revolver, which was the same caliber weapon used to kill one of the victims; (4) expert testimony revealed the presence of the defendant's blood at several locations within the crime scene; and (5) a bloody shoe print matching shoe prints at the crime scene was found in the defendant's garage. Williams v. State, 279 Ga. 731, 620 S.E.2d 816 (2005).
Wife of murderer witnessing abuse and murder of child in their care.
- Evidence was sufficient to find a wife guilty of felony murder and second degree child cruelty arising out of her husband's abuse and murder of a 13-month-old child in their care, the husband and his wife were the only adults in the home, and the wife testified that the husband inflicted the victim's injuries, including head trauma from swinging the child by the ankle against a sofa, yet she did not seek medical treatment. Virger v. State, 305 Ga. 281, 824 S.E.2d 346 (2019).
Strangulation as evidence of malice.
- Despite the fact that the defendant did not admit to every element of the charged offenses, the state presented sufficient evidence to corroborate the admissions made specifically, that the victim died from manual strangulation inflicted by another human being shortly after the defendant was in the victim's company, and presented ample evidence of the defendant's intent to take the victim's life. Sheffield v. State, 281 Ga. 33, 635 S.E.2d 776 (2006).
Sufficient evidence of malice in death of a child.
- With regard to a defendant's trial and conviction for malice murder arising from the severe physical abuse of the defendant's five-year-old nephew, sufficient evidence existed to support the defendant's conviction since the evidence established that the defendant struck and beat the victim and deprived him of necessary nutrition as alleged in the indictment and that those actions caused the child's death. Peterson v. State, 282 Ga. 286, 647 S.E.2d 592 (2007).
Victim found in defendant's home.
- There was sufficient evidence to enable a rational trier of fact to find the defendant guilty beyond a reasonable doubt of malice murder where the victim, found in the defendant's home, had been beaten and died from a severe blow to the head. Hannah v. State, 278 Ga. 195, 599 S.E.2d 177 (2004).
Setting a fire as evidence of malice.
- Because the defendant admitted that, while the defendant's children were sleeping and to scare the defendant's love interest, the defendant used a cigarette lighter to set fire to the bedding on the corner of a child's bed, causing a fire in a trailer that killed three children, the evidence was sufficient to enable a rational trier of fact to find that the defendant was, beyond a reasonable doubt, guilty of three counts of malice murder, three counts of felony murder, and two counts of arson in the first degree; thus, the trial court did not err by denying the defendant's motion for a directed verdict of acquittal pursuant to O.C.G.A. § 17-9-1(a). Riley v. State, 278 Ga. 677, 604 S.E.2d 488 (2004).
Poisoning of victim.
- With regard to a defendant's conviction for the malice murder of the defendant's husband, the trial court did not err in admitting evidence of a similar transaction as to the defendant poisoning a boyfriend with antifreeze via being fed green Jell-O, because the defendant was intimate with both victims; both men went to the hospital complaining of flu-like symptoms soon before each man died; both men died from the unique cause of antifreeze poisoning; the defendant was the last person to see either man alive; both men died soon after the defendant served them Jell-O; and the defendant, who had financial problems before the deaths of both men, collected substantial money in connection with each man's death. Turner v. State, 281 Ga. 647, 641 S.E.2d 527 (2007).
Introduction of civil dispute in murder prosecution.
- Defendant's malice murder and aggravated battery convictions were upheld on appeal as the trial court did not err in introducing into evidence the pleadings filed in a civil lawsuit brought by defendant against the victim and others as the evidence was introduced to show the defendant's motive or state of mind. Taylor v. State, 282 Ga. 44, 644 S.E.2d 850, cert. denied, 552 U.S. 950, 128 S. Ct. 384, 169 L. Ed. 2d 263 (2007).
Evidence of wounding former wife.
- In defendant's prosecution for the murder of his present wife, evidence that defendant had shot his former wife in the shoulder with a pistol was admissible to show malice, intent, motive, and bent of mind and did not impermissibly place defendant's character in issue. Clark v. State, 255 Ga. 370, 338 S.E.2d 269 (1986).
Evidence of prior difficulties was admissible. Brown v. State, 51 Ga. 502 (1874) (decided under former Code 1873, §§ 4321, 4322).
Trial court did not err in denying the defendant's motion to suppress certain testimony about prior difficulties that had occurred between the defendant and the murder victim, as such evidence was relevant to the relationship between the victim and the defendant, and was admissible to show the defendant's motive, intent, and bent of mind in murdering the victim. Moody v. State, 277 Ga. 676, 594 S.E.2d 350 (2004).
Evidence sufficient to show malice during heated argument.
- Facts and circumstances were sufficient to authorize the trial court to infer malice pursuant to O.C.G.A. § 16-5-1 as defendant shot the victim in the back during a heated argument in which the victim informed defendant that the victim was leaving the defendant. Latimore v. State, 262 Ga. 448, 421 S.E.2d 281 (1992).
Threats, though remote, are admissible in murder trials for purpose of showing motive and malice. Pierce v. State, 212 Ga. 88, 90 S.E.2d 417 (1955) (decided under former Code 1933, §§ 26-1003, 26-1004).
Threats by accused against deceased as tending to show malice.
- In trial for murder, threats by accused against deceased, though made a considerable period before homicide, are admissible in evidence for state as tending to show malice on part of accused; and mere omission of trial judge to charge jury as to what weight they should give to threats, or as to how jury should regard them in their deliberations, is not cause for new trial, particularly when accused was convicted of voluntary manslaughter only, the verdict thus negativing any conclusion that killing was done in malice. Ellis v. State, 72 Ga. App. 469, 34 S.E.2d 171 (1945) (decided under former Code 1933, §§ 26-1003, 26-1004).
Showing threats is good evidence of malice. Phillips v. State, 26 Ga. App. 263, 105 S.E. 823 (1921) (decided under former Penal Code 1910, §§ 61, 62).
Conditional threats are evidence of malice. Golatt v. State, 130 Ga. 18, 60 S.E. 107 (1908) (decided under former Penal Code 1895, §§ 61, 62).
Witness, who was a friend of the deceased, was allowed to testify in defendant's murder trial under the "necessity" exception about the victim's relationship with the defendant. Brinson v. State, 276 Ga. 671, 581 S.E.2d 548 (2003).
Even uncommunicated threats are evidence of malice. Graham v. State, 125 Ga. 48, 53 S.E. 816 (1906) (decided under former Penal Code 1895, §§ 61, 62); Rouse v. State, 135 Ga. 227, 69 S.E. 180 (1910);(decided under former Penal Code 1895, §§ 61, 62).
Evidence of state of feelings of parties is admissible to show malice. Brooks v. State, 134 Ga. 784, 68 S.E. 504 (1910) (decided under former Penal Code 1895, §§ 61, 62).
Uncommunicated statement tending to show state of feelings of parties is admissible. McCray v. State, 134 Ga. 416, 68 S.E. 62, 20 Ann. Cas. 101 (1910) (decided under former Penal Code 1895, §§ 61, 62).
Evidence of difficulty between deceased's husband and accused several months before homicide is admissible. On trial of man for homicide of his sister-in-law growing out of a difficulty in which her husband also was killed by accused, evidence tending to show previous difficulty between accused and husband although occurring several months prior to homicide, and existence of bad blood between them, was admissible as tending to show malice, intent, or motive in killing deceased. Jeffords v. State, 162 Ga. 573, 134 S.E. 169 (1926) (decided under former Penal Code 1910, §§ 61, 62).
Evidence of threats made four or five days before homicide is admissible. Stiles v. State, 57 Ga. 183 (1876) (decided under formal Code 1873, §§ 4321, 4322).
Intervening time between threat and act determines probative force of threat. Crumley v. State, 5 Ga. App. 231, 62 S.E. 1005 (1908) (decided under former Penal Code 1910, §§ 61, 62).
Timely cruelty and ill-treatment by husband towards wife is admissible to show malice and motive. Roberts v. State, 123 Ga. 146, 51 S.E. 374 (1905) (decided under former Code 1895, §§ 61, 62); Campbell v. State, 123 Ga. 533, 51 S.E. 644 (1905) (decided under former Code 1895, §§ 61, 62); Green v. State, 125 Ga. 742, 54 S.E. 724 (1906) (decided under former Code 1895, §§ 61, 62); Josey v. State, 137 Ga. 769, 74 S.E. 282 (1912) (decided under former Penal Code 1910, §§ 61, 62).
Acts and declarations following infliction of mortal wound which evidence malice are admissible. It is competent in trial for murder to prove that, shortly after mortal wound was inflicted, accused made declarations and did acts evidencing malice toward injured person or indifference to that person's fate. Perry v. State, 110 Ga. 234, 36 S.E. 781 (1900) (decided under former Penal Code 1895, §§ 61, 62).
Mother who destroys her infant to conceal her shame has legal malice. Jones v. State, 29 Ga. 594 (1859) (decided under former law).
Providing weapon prior to killing is evidence of malice. Hayes v. State, 58 Ga. 35 (1877) (decided under former Code 1895, §§ 61, 62); Perry v. State, 102 Ga. 365, 30 S.E. 903 (1897) (decided under former Penal Code 1910, §§ 61, 62).
Use of weapon likely to produce death in brutal, bloodthirsty manner as evidence of malice. Daniels v. State, 197 Ga. 754, 30 S.E.2d 625 (1944) (decided under former Code 1933, §§ 26-1003, 26-1004).
Deliberate violation of law as aid in establishing malice.
- Deliberate violation of law, whether statute or ordinance prohibiting shooting of firearms in city without consent of mayor, is a fact which may be relied upon to aid in establishing malice; while violation of the law in itself is insufficient to supply malice unless it is a felony, if considered in connection with all surrounding facts and circumstances, it is such an unlawful act as naturally tends to destroy human life, it may be relied upon as a fact tending to show an abandoned and malignant heart, and malice. Perry v. State, 78 Ga. App. 273, 50 S.E.2d 709 (1948) (decided under former Code 1933, §§ 26-1003, 26-1004).
Pouring alcohol upon another's clothing and lighting match to it.
- There being evidence that accused poured alcohol upon body and clothing of his wife, that alcohol is highly inflammable, that accused then applied a match, and that his wife died as a result of the burns, this was sufficient evidence for jury to find that accused intended to kill and that killing was with malice. Blakewood v. State, 196 Ga. 34, 25 S.E.2d 643 (1943) (decided under former Code 1933, §§ 26-1003, 26-1004).
Evidence of the malice murder held sufficient where defendant, while drinking, shot defendant's spouse, despite defendant's claim of accident. Rowe v. State, 276 Ga. 800, 582 S.E.2d 119 (2003).
Malice, express or implied, is motive present at time of killing, and no other motive need be shown. Carson v. State, 80 Ga. 170, 5 S.E. 295 (1887) (decided under former Code 1882, §§ 4321, 4322).
Evidence of bad feeling between defendant and deceased is admissible in some cases. Shaw v. State, 60 Ga. 246 (1878) (decided under former Code 1873, §§ 4321, 4322).
Repeated quarrels between the parties may be shown to establish ill will, but proof may not go back to a remote period to show a particular quarrel or cause of grudge unless it is followed up with proof of a continued difference flowing from that source. Monroe v. State, 5 Ga. 85 (1848) (decided under former law).
Evidence of bad feeling between father of accused and father of deceased is admissible. Rawlins v. State, 124 Ga. 31, 52 S.E. 1 (1905), aff'd, 201 U.S. 638, 26 S. Ct. 560, 50 L. Ed. 899 (1906) (decided under former Penal Code 1895, §§ 61, 62).
Fact that deceased testified against accused is relevant to show motive. Hayes v. State, 126 Ga. 95, 54 S.E. 809 (1906) (decided under former Penal Code 1895, §§ 61, 62).
Evidence showing probability of rape is admissible for purpose of showing motive. Robinson v. State, 114 Ga. 56, 39 S.E. 862 (1901) (decided under former Penal Code 1895, §§ 61, 62).
State may prove facts occurring after homicide which tend to illustrate motive. Hoxie v. State, 114 Ga. 19, 39 S.E. 944 (1901) (decided under former Penal Code 1895, §§ 61, 62).
Evidence of bad feelings of deceased for defendant, unknown to latter.
- When one is on trial for assassinating another, evidence of bad feeling on part of deceased toward defendant, unknown to defendant prior to killing is inadmissible against the defendant. Sasser v. State, 129 Ga. 541, 59 S.E. 255 (1907) (decided under former Penal Code 1895, §§ 61, 62).
Existence of life insurance on deceased payable to defendant's spouse.
- In murder trial, court did not err in admitting evidence relating to insurance upon life of deceased, payable to defendant's spouse, since under other circumstances of case the evidence was admissible on question of motive. Johnson v. State, 186 Ga. 324, 197 S.E. 786 (1938) (decided under former Code 1933, §§ 26-1003, 26-1004).
Evidence that defendant intended to take money from the victim, anticipated a fight, and, after robbing and shooting the victim, returned to the scene and intentionally shot the still-living victim a second time was sufficient to authorize the jury to infer malice. Jackson v. State, 267 Ga. 130, 475 S.E.2d 637 (1996).
Malice murder appropriate when victim shot 14 times.
- Evidence supported the defendant's conviction for malice murder because the defendant admitted shooting the victim 14 times over 10 years ago and then burying the victim's body in a shallow grave because the defendant had been threatened with death for the defendant and the defendant's family members by a drug dealer who thought that the defendant and the victim stole money and drugs from the dealer. Gravitt v. State, 279 Ga. 33, 608 S.E.2d 202 (2005).
Despite withdrawal from life support evidence sufficient for malice murder conviction.
- Evidence was sufficient to convict the defendant of malice murder as the jury was authorized to conclude that the defendant's actions were the proximate cause of the victim's death, and that the withdrawal of life support was not the intervening and ultimate cause of the victim's death because the defendant caused the victim's severe brain injuries, which required the use of life support to attempt recovery and to reduce brain swelling; it was reasonably foreseeable that the victim would be taken off life support when the victim's condition failed to improve; and, although it was theoretically possible for the victim to survive, the medical examiner (ME) noted that the ME could not opine as to whether the victim would have survived. Stribling v. State, 304 Ga. 250, 818 S.E.2d 563 (2018).
Felony Murder
1. In General
Georgia legislature intended felony murder to encompass all felonies as defined in former Code 1933, § 26-401 and not just dangerous or forcible felonies. Baker v. State, 236 Ga. 754, 225 S.E.2d 269 (1976) (see O.C.G.A. § 16-1-3(5)).
Evidence was sufficient to find the defendant guilty of felony murder based on the felony of cruelty to children; the child's age, the extent of the child's injuries, the nature of the assault to which the child was subjected, and the force with which the child was struck was sufficient evidence from which a jury, applying generally-accepted societal norms, could conclude whether the defendant caused cruel or excessive physical pain. Kennedy v. State, 277 Ga. 588, 592 S.E.2d 830 (2004).
Felony murder does not require malice or intent to kill. It does, however, require that the defendant possess the requisite criminal intent to commit the underlying felony. Holliman v. State, 257 Ga. 209, 356 S.E.2d 886, cert. denied, 484 U.S. 933, 108 S. Ct. 306, 98 L. Ed. 2d 265 (1987).
Defendant's convictions for felony murder and the underlying crime of aggravated assault were supported by sufficient evidence because no proof of the defendant's criminal intent to murder was required for the felony murder conviction, and the aggravated assault conviction did not require proof that the defendant intended to injure the victim, as only proof that the defendant intended to do the act that placed the victim in reasonable apprehension of harm was required. Smith v. State, 280 Ga. 490, 629 S.E.2d 816 (2006).
Felony murder does not require proof of intent, transferred or otherwise, as an element of the homicide. Towns v. State, 260 Ga. 423, 396 S.E.2d 215 (1990), cert. denied, Barrett v. State, 263 Ga. 533, 436 S.E.2d 480 (1993), overruled on other grounds, Wall v. State, 269 Ga. 506, 500 S.E.2d 904 (1998).
Person who commits felony is liable for any murder that occurs as result of the commission of that felony, without regard to whether the person commits, intended to commit, or acted to commit the murder of the victim. Roberts v. State, 257 Ga. 180, 356 S.E.2d 871 (1987).
Bifurcated trial on separate charges.
- Trial court did not violate defendant's double jeopardy rights when it bifurcated the trial, allowing defendant to be tried on a malice murder and felony murder charge. The killing for which defendant was charged was not the subject of another prosecution and defendant's guilt was determined by the same jury in the same prosecution. Jones v. State, 276 Ga. 663, 581 S.E.2d 546 (2003).
Prosecutor's comments in opening statements were permissible.
- Trial court properly denied defendant's motion for a new trial pursuant to O.C.G.A. § 5-5-23 following defendant's conviction of felony murder; the prosecutor did not improperly bolster the credibility of a witness during opening statements. Wilson v. State, 276 Ga. 674, 581 S.E.2d 534 (2003).
Conviction required reversal because evidence was improperly excluded.
- During a trial for felony murder while in the commission of cruelty to a child arising from the death of the defendant's child from brain trauma sustained while the child was in the defendant's care, the defendant was improperly prevented from cross-examining a person who was in the apartment at the time about the person's history of inappropriate behavior toward the person's own child, including allegations of child abuse, because it was a crucial element of the defense that the person was a likely suspect, and, under former O.C.G.A. § 24-4-6 (see now O.C.G.A. § 24-14-6), the circumstantial evidence did not exclude the reasonable hypothesis that the person was the likely culprit; the defendant's conviction required reversal because it was not highly improbable that the jury's verdict would have been different if the evidence had been admitted, and the error therefore could not be considered harmless. Scott v. State, 281 Ga. 373, 637 S.E.2d 652 (2006).
Only one felony is required to trigger felony-murder rule, but the state could allege more than one armed robbery in indictment and thereby cause multiple robberies to become lesser included offenses. Collier v. State, 244 Ga. 553, 261 S.E.2d 364 (1979), cert. denied, 445 U.S. 946, 100 S. Ct. 1346, 63 L. Ed. 2d 781 (1980), overruled on other grounds, Satterfield v. State, 248 Ga. 538, 285 S.E.2d 3 (1981); Thompson v. State, 263 Ga. 23, 426 S.E.2d 895 (1993), overruled on other grounds, McClellan v. State, 274 Ga. 819, 561 S.E.2d 82 (2002).
When there are multiple underlying felonies, the state is not required to elect between the felonies when charging the defendant with felony murder. State v. McBride, 261 Ga. 60, 401 S.E.2d 484 (1991).
Appropriate manner for charging felony murder in instances when more than one underlying felony is alleged is to indict for one count of felony murder, and enumerate the multiple underlying felonies. State v. McBride, 261 Ga. 60, 401 S.E.2d 484 (1991).
Parties to crime.
- Given the testimony provided by both the codefendant and the codefendant's former wife, to whom the defendant admitted to firing the fatal shots killing the victim, which netted the victim's cellular phone and pager and evidence describing how the defendant participated in the events that happened before, during, and after the commission of the crimes, sufficient evidence was presented to uphold the defendant's convictions for felony murder and armed robbery as a party to the crimes. Pruitt v. State, 282 Ga. 30, 644 S.E.2d 837 (2007).
Evidence established more than the mere presence of the defendant during the commission of the offense of aggravated assault and felony murder predicated on aggravated assault: (1) the defendant assaulted the victim during the drive to the murder scene; (2) the defendant participated in a plot to burn the victim's body and stood lookout while the body was buried; (3) the defendant did not attempt to report the crime; and (4) the defendant watched as another person stabbed the victim before attempting to intervene. Navarrete v. State, 283 Ga. 156, 656 S.E.2d 814 (2008), cert. denied, 129 S. Ct. 104, 172 L. Ed. 2d 33 (2008).
Evidence was sufficient to authorize a rational trier of fact to find beyond a reasonable doubt that the defendant was guilty as a party to malice murder, aggravated assault, possession of a firearm during the commission of a crime, and tampering with evidence because the evidence showed that before, during, and after the commission of the crimes, the defendant was present and shared the defendant's companionship with the defendant's brothers; the state's evidence authorized the inferences that the defendant, who had assisted the defendant's brothers in attacking the cousin of one of the victims, was not an innocent bystander, that the defendant drove the defendant's brothers to the crime scene knowing that one of the brothers was armed, that the defendant willingly stayed with the defendant's brothers while the brothers tried to start a fight and threatened to kill someone, and that the defendant ran to the defendant's car and drove the brothers away immediately after the brothers had shot one of the victims. Teasley v. State, 288 Ga. 468, 704 S.E.2d 800 (2010).
Evidence was sufficient to convict the defendant as a party to the crimes of felony murder and possession of a firearm during the commission of a felony in connection with the shooting death of one of the accomplices to an attempted armed robbery because the defendant was not just an innocent bystander as the defendant admitted that the defendant was with the accomplices before the shooting; the jury could have reasonably inferred that the defendant was the person whom two witnesses overheard in the background of a call encouraging the armed robbery; and the defendant admitted that the defendant accompanied the accomplices knowing that the buyer and the group the defendant was with planned to rob each other during a purported drug deal. Frazier v. State, 308 Ga. 450, 841 S.E.2d 692 (2020).
Felony murder is subject to same penalties as malice murder. Burke v. State, 234 Ga. 512, 216 S.E.2d 812 (1975).
Convictions for both voluntary manslaughter and felony murder.
- Verdicts of voluntary manslaughter and felony murder were not mutually exclusive under the facts of the case. Smith v. State, 272 Ga. 874, 536 S.E.2d 514 (2000).
Felony murder was prohibited with malice murder conviction.
- When a prisoner was convicted of malice murder under O.C.G.A. § 16-5-1(a), a jury did not return a verdict on felony murder counts because O.C.G.A. § 16-1-7 prohibited a conviction for both offenses for the death of a single victim. Further, the defendant's crime of aggravated assault under O.C.G.A. § 16-5-21(a) also merged with the malice murder offense as it was a crime included within the greater offense. Newland v. Hall, 527 F.3d 1162 (11th Cir. 2008), cert. denied, 555 U.S. 1183, 129 S. Ct. 1336, 173 L. Ed. 2d 607 (2009).
Polygraph results corroborated accomplice's testimony.
- Sufficient evidence supported the defendant's felony murder conviction because the defendant's polygraph results, which the defendant stipulated to admitting at trial, corroborated the accomplice's inculpatory testimony. Thornton v. State, 279 Ga. 676, 620 S.E.2d 356 (2005).
Admission of irrelevant evidence did not require mistrial.
- During a trial for felony murder while in the commission of cruelty to a child, evidence that a defendant's romantic partner did not know that the defendant was married was irrelevant; although the defendant's objection to the admission of the evidence was improperly overruled, the defendant's motion for a mistrial was properly denied because a mistrial was not mandated. Scott v. State, 281 Ga. 373, 637 S.E.2d 652 (2006).
Jury resolves conflicts in evidence.
- Defendant's conviction for felony murder and possession of a firearm in the commission of a crime was supported by sufficient evidence; while there was a conflict in the evidence as to whether the defendant shot the victim in self-defense, it was the role of the jury, not the court, to resolve conflicts in the evidence. Jackson v. State, 279 Ga. 721, 620 S.E.2d 828 (2005).
Felony murder not lesser included offense.
- In a prosecution on separate counts of malice murder, armed robbery, and kidnapping, the trial court did not err in failing to charge the jury on felony murder as a lesser included offense. Henry v. State, 265 Ga. 732, 462 S.E.2d 737 (1995).
Multiple felony murder convictions, only one person killed.
- Under O.C.G.A. § 16-1-7(a), it was improper to sentence the defendant to two felony murder counts under O.C.G.A. § 16-5-1(c) because there was only one death involved. Rhodes v. State, 279 Ga. 587, 619 S.E.2d 659 (2005).
Because the prohibition against double jeopardy does not permit a defendant to be punished on multiple murder counts for a single homicide, the superior court incorrectly sentenced the defendant on each felony murder count. Kipp v. State, 294 Ga. 55, 751 S.E.2d 83 (2013).
When elements of malice and underlying felony both exist in murder case, the law does not preclude verdicts of guilty of both malice and felony murder. However, where there is a single victim, the defendant may be sentenced on either but not both. Smith v. State, 258 Ga. 181, 366 S.E.2d 763 (1988).
Victim need not die during commission of underlying felony.
- There is no merit to the contention that the victim must die during the commission of the underlying felony under a felony-murder indictment. O.C.G.A. § 16-5-1(c), defining felony murder, requires that the death need only be caused by an injury which occurred during the res gestae of the felony. State v. Cross, 260 Ga. 845, 401 S.E.2d 510 (1991).
Sentence following felony murder and vehicular homicide conviction.
- After defendant was convicted of felony murder and vehicular homicide, the trial court properly sentenced defendant to life imprisonment for felony murder since the felony murder statute is separate from the vehicular homicide statute and is not ambiguous about the appropriate sentence. Diamond v. State, 267 Ga. 249, 477 S.E.2d 562 (1996).
Circumstantial evidence was sufficient to sustain conviction in death of child.
- Evidence that a defendant's 13-month-old child died while in the defendant's care from brain trauma caused by being struck by or against an object or violently shaken, at a time when one other person and that person's child were in the defendant's apartment, provided sufficient circumstantial evidence under former O.C.G.A. § 24-4-6 (see now O.C.G.A. § 24-14-6) to enable a rational trier of fact to find the defendant guilty beyond a reasonable doubt of felony murder while in the commission of cruelty to a child; questions as to the reasonableness of hypotheses were to be decided by the jury, and the jury's authorized finding that evidence, though circumstantial, was sufficient to exclude every reasonable hypothesis save that of guilt was not to be disturbed unless the guilty verdict was insupportable as a matter of law. Scott v. State, 281 Ga. 373, 637 S.E.2d 652 (2006).
Circumstantial evidence supported the defendant's conviction of the felony murder of the defendant's two-month-old child. The victim's grandparent had not had contact with the victim on the day of the murder, and the evidence that the victim was well when the victim's other parent left the house, combined with a medical examiner's testimony and time line regarding the time of the child's death, excluded the other parent's guilt as well. Nixon v. State, 284 Ga. 800, 671 S.E.2d 503 (2009).
Contrary to a defendant's contention that the state presented only circumstantial evidence under former O.C.G.A. § 24-4-6 (see now O.C.G.A. § 24-14-6) that did not exclude all reasonable hypotheses except that of the defendant's guilt, the evidence was sufficient to support the conviction for felony murder and aggravated assault; the defendant's infant child died of a massive closed head trauma complicated by blunt force chest trauma, and the defendant had the sole care of the child just before the child suffered rib injuries allegedly due to the defendant pushing on the child's chest while the child was choking and just before the child suffered seizure-like symptoms. Berryhill v. State, 285 Ga. 198, 674 S.E.2d 920 (2009).
Evidence was sufficient to authorize a rational trier of fact to find the defendant guilty of felony murder beyond a reasonable doubt because the victim did not have physical injuries when the victim's mother left the house on the day of the crime, and the defendant was the only person present during the hours in which the victim was physically injured; the pathologist testified that the location and severity of injuries was inconsistent with a mere fall from the bed. Whitaker v. State, 291 Ga. 139, 728 S.E.2d 209 (2012).
Circumstantial evidence was sufficient to convict the defendant of malice murder in connection with the beating death of the victim, the defendant's 10-month-old daughter, because, at the time the victim died, the victim had sustained numerous injuries in the days and hours leading up to the victim's death; the defendant was the sole adult with the victim in the hours preceding the victim's death; the jury heard expert testimony that the victim's injuries were not consistent with a fall; and the defendant had made an incriminating statement in a letter to the victim's mother while awaiting trial. Walker v. State, 308 Ga. 33, 838 S.E.2d 792 (2020).
Evidence was sufficient to support conviction.
- Evidence was sufficient to support convictions for felony murder, aggravated assault, and possession of a firearm during the commission of a crime since the record revealed that the defendant was riding in a car, made a gang sign to some people on the street, and in response to their obscene gesture, the defendant took out a gun and fired at the people, killing two people and wounding one. Defendant's contention that the defendant was acting to protect the defendant and others in the car, that the defendant fired into the air, and that the defendant did not mean to hurt anyone was found to lack merit. Ingram v. State, 276 Ga. 223, 576 S.E.2d 855 (2003).
Evidence was sufficient to support the defendant's conviction for felony murder because the evidence showed that the defendant arrived at the apartment of a person the defendant had been dating, that the defendant started arguing with that person, that the murder victim, who was also dating that person, tried to escort the defendant out of the apartment, and that the defendant suddenly stabbed and killed the murder victim. Daniels v. State, 276 Ga. 632, 580 S.E.2d 221 (2003).
Defendant's conviction was not based solely on circumstantial evidence because there was ample direct evidence that the defendant committed the murder, including the defendant's own inculpatory statements. White v. State, 276 Ga. 583, 581 S.E.2d 18 (2003).
Because the defendant shot a victim in the head after an argument and also shot at another victim but failed to hit the second victim, a rational trier of fact could have found that defendant was guilty of felony murder, possession of a firearm during the commission of a crime, and possession of a firearm by a convicted felon. Hightower v. State, 278 Ga. 39, 597 S.E.2d 362 (2004).
Evidence was sufficient to support the defendant's murder conviction because the defendant was with the victim the evening before the victim's body was discovered in the victim's bed, the defendant's freshly imprinted palm print was found on the wall above the bed, the defendant's blood-stained shirt was found stuffed into a toilet bowl in the victim's bathroom, the victim's blood was on another of the defendant's shirts found at the defendant's home, and post-mortem testing showed that the defendant and the victim engaged in sex on the night of the murder. Lassic v. State, 278 Ga. 701, 606 S.E.2d 266 (2004).
When a victim paid the defendant money the victim owed, and, after the victim paid the money, the defendant told the victim that the victim was going to die anyway and shot the victim as the victim sat in a vehicle with two other people, the evidence was sufficient to allow a rational trier of fact to find the defendant guilty beyond a reasonable doubt of felony murder, possession of a weapon by a convicted felon, and possession of a weapon during the commission of a felony. Stephens v. State, 279 Ga. 43, 609 S.E.2d 344 (2005).
Evidence was sufficient to support the defendant's convictions for felony murder, aggravated assault, and giving a false statement when the defendant and the codefendant were arrested when the codefendant sought medical treatment for a gunshot wound sustained in the incident, the codefendant gave police a false name and said that the codefendant was shot when someone tried to rob the codefendant, the codefendant told a neighbor who saw the wound that someone else was worse off than the codefendant was, the defendant asked the neighbor's niece to tell police the codefendant was at the niece's house on the night of the crime and was robbed when leaving, and, while in jail, the defendant told one inmate the defendant shot someone in the incident and told another inmate that the defendant was involved in a robbery of this victim that went bad, and that the defendant and the codefendant had been looking for a safe with money and marijuana. Styles v. State, 279 Ga. 134, 610 S.E.2d 23 (2005).
Evidence that showed defendant and other members of a gang attacked rival gang members outside a restaurant and that defendant fired two shots into the back of the brother of two rival gang members after the victim had been beaten with a small bat, that defendant stated to another gang member that defendant had shot the victim, and that the gun used to kill the victim was found in defendant's backyard, supported the convictions for felony murder and possession of a firearm during the commission of a felony. Yat v. State, 279 Ga. 611, 619 S.E.2d 637 (2005).
Evidence was sufficient to support defendant's convictions for felony murder, aggravated assault, and possession of a firearm in the commission of a felony in a case because defendant, who had engaged in previous altercations with the victim, got out of defendant's car after seeing the victim on the street, ran up to the victim, shot the victim, returned to defendant's car, ran back to the victim and shot the victim again, and then got in defendant's car and drove off, as all of the elements of those offenses were established. Hayes v. State, 279 Ga. 642, 619 S.E.2d 628 (2005).
Evidence that (1) the victim died as the result of a verbal altercation between the defendant and the victim, which escalated into a physical confrontation; (2) eyewitnesses saw the defendant swinging a knife; and (3) the state's expert said the victim died of a stab wound to the chest was sufficient to allow a trier of fact to find defendant guilty of felony murder in the course of an aggravated assault beyond a reasonable doubt. McDaniel v. State, 279 Ga. 801, 621 S.E.2d 424 (2005).
Circumstantial evidence was sufficient to allow a jury to find defendant committed felony murder and aggravated assault beyond a reasonable doubt when there was testimony that defendant was seen wearing a trench coat, waved down the victim's vehicle, leaned in through an open window in the vehicle, fled after firing two shots, saying, "I believe I shot him," forensic evidence was consistent with this testimony, defendant and the codefendant were earlier seen trying to sell a gun, a trench coat with missing buttons was found in the codefendant's house, and its buttons matched a button found in the victim's car. Burns v. State, 280 Ga. 24, 622 S.E.2d 352 (2005).
As defendant and the victim were engaged in a heated verbal exchange, defendant went to defendant's room and obtained a serrated knife, returned to where the victim was and stabbed the victim in the chest, which resulted in the victim's heart being punctured, and defendant later admitted to the stabbing, the evidence was sufficient to support the verdict finding defendant guilty of felony murder and aggravated assault, in violation of O.C.G.A. §§ 16-5-1 and16-5-21, as well as possession of a knife during the commission of a felony; the jury was authorized to find defendant's claim of self-defense lacking in credibility. Delanoval v. State, 280 Ga. 36, 622 S.E.2d 811 (2005).
Defendant's convictions for felony murder, aggravated assault, and possession of a knife during the commission of a felony were supported by sufficient evidence; while defendant argued that defendant acted in self-defense in stabbing the victim in the chest during a confrontation, the jury was authorized to disbelieve the defendant's testimony in favor of the testimony of the state's witnesses. Delanoval v. State, 280 Ga. 36, 622 S.E.2d 811 (2005).
Sufficient evidence was introduced to support defendant's convictions for felony murder and burglary despite defendant's claims that the defendant was not sufficiently involved in the crimes to be convicted on those charges. Joyner v. State, 280 Ga. 37, 622 S.E.2d 319 (2005).
Evidence was sufficient to support defendant's conviction for felony murder because defendant was involved in a physical altercation with the victim which escalated into a group fight, defendant was armed with a gun while the victim was unarmed, and defendant shot the victim while the victim kneeled before defendant on the ground. Hudson v. State, 280 Ga. 123, 623 S.E.2d 497 (2005).
Evidence was sufficient to support a felony murder conviction because: (1) the victim was stabbed to death in an apartment; (2) the defendant was alone in the apartment with the victim the night before the victim's body was found; (3) the defendant's bloody fingerprint was found in the apartment; (4) the victim's blood was found on the shorts the defendant was wearing on the night of the murder; and (5) the defendant told police that the defendant could not remember the events of the night in question, denied that the defendant had ever been in the victim's apartment, but believed that the defendant and the victim were attacked by unknown persons. Rojas v. State, 280 Ga. 139, 625 S.E.2d 750 (2006).
Sufficient evidence supported a conviction for felony murder while committing an aggravated assault because the defendant admitted that the defendant shot blindly at someone entering the room, rather than shooting accidentally. Gabriel v. State, 280 Ga. 237, 626 S.E.2d 491 (2006).
Evidence was sufficient to find the defendant guilty of voluntary manslaughter in violation of O.C.G.A. § 16-5-2, felony murder predicated on possession of a firearm by a convicted felon in violation of O.C.G.A. § 16-5-1, two counts of aggravated assault in violation of O.C.G.A. § 16-5-21, possession of a firearm by a convicted felon in violation of O.C.G.A. § 16-11-131, and possession of a firearm during the commission of a felony murder in violation of O.C.G.A. § 16-11-106, as the defendant was angered by the victim's presence in the residence, the defendant assaulted the victim with a baseball bat and threatened to kill the victim if the victim did not leave the residence, and when the victim returned to the residence, the defendant fatally shot the victim in the stomach. Lawson v. State, 280 Ga. 881, 635 S.E.2d 134 (2006).
Evidence supported a defendant's convictions for fleeing and attempting to elude a police officer as an underlying offense for felony murder, theft by taking, vehicular homicide, disregarding a traffic control device, failing to stop at a stop sign, and reckless driving as: (1) the defendant stole a vehicle and was spotted by an officer shortly after the vehicle was reported as stolen; (2) when the officer began to follow the vehicle, the vehicle rapidly accelerated; (3) the officer followed the stolen vehicle for several blocks, with both vehicles traveling between 60-70 miles per hour; (4) the vehicle continued to accelerate after the officer turned on the officer's blue lights and siren; (5) when the stolen vehicle ran a red light, the vehicle struck a car, killing the driver; and (6) the officer and the owner of the stolen vehicle identified the defendant as the person driving the stolen vehicle. Ferguson v. State, 280 Ga. 893, 635 S.E.2d 144 (2006).
Evidence supported a defendant's conviction for malice murder, felony murder while in commission of an aggravated assault, aggravated assault with a deadly weapon, and possession of a firearm during the commission of a felony as: (1) the defendant came to a tenant's apartment and told the victim that the defendant just shot someone in the backyard; (2) the tenant heard the victim calling the tenant's name; (3) another witness heard a series of gunshots and then someone being beaten, was familiar with the victim and recognized the victim's voice as the victim hollered, "You stomping me. I've been shot. You already done shot me," and saw the defendant emerge from behind the residence with a gun in the defendant's hand; (4) the defendant held the gun to the head of the witness, but then instructed the witness to leave the area; and (5) the victim's death was caused by two fatal gunshot wounds to the neck and chest and there was blunt force trauma to the head. Compton v. State, 281 Ga. 45, 635 S.E.2d 766 (2006).
Because a rational trier of fact could have found the defendant guilty of felony murder, based on sufficient evidence that said defendant shot the unarmed victim after a failed attempt to purchase cocaine, thus rejecting a claim of self-defense, the defendant's felony murder conviction was upheld on appeal. McNeal v. State, 281 Ga. 427, 637 S.E.2d 375 (2006).
When the victim was killed during the theft of the victim's vehicle, the evidence was sufficient for a jury to convict the defendant of felony murder, aggravated assault, and armed robbery; the defendant told others where the vehicle was, then stripped the vehicle; a call was placed from the victim's cell phone to the house of one of the defendant's grandparents; police found some of the victim's belongings at the home of the defendant's cousin; and a witness and two cousins of the defendant stated that the defendant admitted shooting the victim. Paige v. State, 281 Ga. 504, 639 S.E.2d 478 (2007).
Defendant's conviction for felony murder and related charges was upheld on appeal because the evidence showed that the defendant admitted to killing to the defendant's girlfriend and others and the gun used to shoot the victim was the same that the defendant had shot at a party earlier in the evening; the defendant had asked the victim for a ride home from the party and the evidence indicated that defendant shot the victim twice and dumped the body in a wooded area. Lee v. State, 281 Ga. 511, 640 S.E.2d 287 (2007).
There was sufficient evidence to support the defendant's convictions of felony murder and aggravated assault resulting from an incident when shots were fired from a van at the victims, who were riding in a car that had formerly belonged to a drug dealer; the defendant had argued with the drug dealer the day of the shooting, the defendant's wrecked car was found in the same place as the van, the surviving victim identified the defendant as the driver of the van, the van had been traded to the defendant's brother, and even if the defendant did not actually fire the shots, being the driver would authorize the defendant's conviction under O.C.G.A. § 16-2-20(a). Yancey v. State, 281 Ga. 664, 641 S.E.2d 524 (2007).
Sufficient evidence existed to support five defendants' convictions for felony murder and burglary as the evidence enabled any rational trier of fact to have found the defendants guilty beyond a reasonable doubt based on the state's introduction of both direct and circumstantial evidence to prove that the defendants rode together in a truck and participated in the invasion of the victim's house; although much of the state's case depended on accomplice testimony, the state presented additional corroborating evidence in the nature of the black clothing, weapons, and cellular telephone records, which tended to connect defendants to the crime. Guyton v. State, 281 Ga. 789, 642 S.E.2d 67 (2007).
Because sufficient evidence was presented that the defendant was provoked by an attack on a sibling, and that the defendant had a history of abusive relationships with several men, the voluntary manslaughter of the male victim was supported by the evidence; moreover, evidence of the victim's stabbing and death also supported the jury's verdict with respect to the aggravated assault with a deadly weapon, felony murder, and possession of a knife during the commission of a felony charges. Breland v. State, 285 Ga. App. 251, 648 S.E.2d 389 (2007).
There was sufficient evidence to support the defendant's convictions of felony murder, possession of a firearm by a convicted felon, and possession of a firearm during the commission of a felony; a witness who sold drugs for the defendant had gotten into a dispute with a third person over drugs before the shooting, the defendant upon seeing the victim asked the witness if the victim was the third person in question and then shot the victim, and witnesses placed the defendant at the scene of the crime and testified that the witnesses saw the defendant carrying a gun. Johnson v. State, 282 Ga. 235, 647 S.E.2d 48 (2007).
Evidence from eyewitnesses that the defendant had been in a heated argument with the victim, the defendant left the scene and returned with a gun, the defendant again argued with the victim, pulling out the gun and shooting the victim three times, and that the bullets recovered from the victim confirmed that the bullets were fired from the defendant's weapon, was sufficient to enable a rational trier of fact to reject the defendant's self-defense claim and to support the defendant's convictions for felony murder, aggravated assault, and possession of a firearm during the commission of a felony. Bolston v. State, 282 Ga. 400, 651 S.E.2d 19 (2007).
It was not necessary for the state's circumstantial evidence against a defendant to exclude every conceivable hypothesis, and contrary to the defendant's assertions, the state of undress the victim was found in, coupled with DNA evidence that linked the defendant to the victim, was sufficient to support a jury's conclusion that the defendant raped and murdered the victim as opposed to having committed necrophilia or having engaged in consensual sex with the victim before the victim died. Walker v. State, 282 Ga. 406, 651 S.E.2d 12 (2007).
There was sufficient evidence to support a defendant's conviction for felony murder of the love interest of the defendant's spouse, and the trial court did not err by denying the defendant's motions for a directed verdict or for a new trial; the trial court properly concluded that the defendant failed to prove by a preponderance of the evidence that the defendant was incompetent to stand trial based on the testimony of a state psychiatrist who determined that the defendant had some intellectual limitations and a problem with literacy, but found the defendant capable of rational and logical discussion about the circumstances of the incident to be tried, was capable of assisting in the defense, and that defendant understood the nature and object of the legal proceedings. The trial court also did not err by refusing the defendant's requested jury charges as the charges either did not relate to the evidence or the charge given was all that was necessary. Velazquez v. State, 282 Ga. 871, 655 S.E.2d 806 (2008).
Evidence was sufficient to enable a jury to conclude that the defendant was guilty of committing the crimes of murder, felony murder, aggravated assault, burglary, and armed robbery beyond a reasonable doubt based on the evidence showing that: (1) a security guard at the hotel wherein the victim was murdered saw the vehicle the defendant often borrowed; (2) a homeless woman identified the defendant fleeing from the scene shortly after the shots were fired; (3) an acquaintance of the defendant's testified that the defendant said the defendant was going to get some money and flashed a .25 caliber handgun and invited the acquaintance to participate; and (4) the crime lab technician testified that the bullets that killed the victim came from the same gun that killed another victim the defendant was alleged to have murdered. McKnight v. State, 283 Ga. 56, 656 S.E.2d 830 (2008).
With regard to defendant's felony murder conviction, it was within the jury's province to reject the voluntary manslaughter option on the special verdict form, finding instead that defendant was guilty of felony murder as, although defendant testified that defendant believed the victim was reaching for a weapon, police investigators testified that defendant had not told the investigators that, and the jury was not required to accept as true the version of events to which defendant testified, but could assess defendant's credibility and weigh defendant's testimony against other evidence. Sewell v. State, 283 Ga. 558, 662 S.E.2d 537 (2008).
Testimony from an eyewitness that the defendant and the victim scuffled and fell to the ground, and that the defendant knelt over the victim, stabbing the victim repeatedly with a knife, was sufficient to support the defendant's convictions of felony murder and aggravated assault with a deadly weapon. Lampley v. State, 284 Ga. 37, 663 S.E.2d 184 (2008).
Evidence supported a defendant's convictions of felony murder, aggravated assault, and possession of a firearm during the commission of a felony. Witnesses saw the defendant walk with the victim from a store to the victim's car and later run from the scene following the sounds of a gunshot and a car crash, and the defendant admitted pulling a gun on the victim and said that the gun had gone off during a struggle, after which the victim tried to drive away. Petty v. State, 283 Ga. 268, 658 S.E.2d 599 (2008).
Evidence was sufficient to support two defendants' conviction of felony murder based on robbery when the defendants and a third person arranged to meet the victim to buy marijuana but decided before the meeting to take the marijuana instead; the first defendant brought a pistol and handed the pistol to the third person; the defendants and the third person ran away after the victim handed them the marijuana; and the third person fatally shot the victim when the victim pursued the three. Allen v. State, 283 Ga. 304, 658 S.E.2d 580 (2008).
Evidence supported defendant's convictions of felony murder during commission of aggravated assault and of possessing a firearm while committing the murder; after defendant argued with the victim and hit the victim while they were riding in a car, defendant and the victim got out of the car where defendant shot at the victim multiple times, defendant fled the scene but later surrendered to authorities and stated that defendant had murdered the victim, and at trial defendant claimed that the gun accidentally discharged when defendant was trying to return the gun to the victim. Lashley v. State, 283 Ga. 465, 660 S.E.2d 370 (2008).
Evidence was sufficient to support a defendant's conviction for felony murder based on aggravated assault and theft of the victim's car since the evidence established, inter alia, that the victim met the defendant at a motel, that the victim's blood was found in the motel room, and that a witness observed a female body in a tub in the trunk of the victim's car, which the defendant had been driving. Edmond v. State, 283 Ga. 507, 661 S.E.2d 520 (2008).
Evidence that showed that, inter alia, a victim was standing in the driveway of the victim's employer with the victim's spouse when the defendant approached the victim in an angry manner, that they entered into a brief verbal exchange, and that the defendant then fired a gun, striking the victim in the head, was sufficient to support the defendant's conviction for felony murder. Browning v. State, 283 Ga. 528, 661 S.E.2d 552 (2008).
Evidence was sufficient to support convictions of murder, felony murder, and armed robbery when the defendant and the codefendant offered to give the victim a ride, the defendant pointed a gun at the victim and told the victim to give the defendant the victim's money; the defendant became angry when the defendant saw that there was no money in the victim's wallet, and the defendant shot the victim in the neck, then dumped the victim's body and the wallet in a parking lot. Lockheart v. State, 284 Ga. 78, 663 S.E.2d 213 (2008).
Sufficient evidence was presented to convict a defendant of felony murder based on evidence that the defendant and a codefendant approached the victims' rental car and brandished guns; while pistol whipping the victims and robbing them of their property, the defendant's gun went off and fatally wounded the first victim; and a gun matching the caliber of bullet recovered from the first victim during the autopsy was found during the execution of a search warrant at a hotel where the defendant had visited a guest on three occasions. Watkins v. State, 285 Ga. 107, 674 S.E.2d 275 (2009).
Evidence supported the convictions of felony murder, aggravated assault, and possession of a knife during the commission of a felony. The victim's grandchild saw the defendant stab the victim after an argument, then went to a relative for help; the defendant then attacked the relative and fled, throwing the knife the defendant used to stab the victim in the bushes; when the defendant was found by police shortly thereafter, the defendant admitted to stabbing the victim; and a medical examiner testified that the bulk of the victim's stabs came from behind and that the cut on the defendant's hand was an offensive wound likely sustained as the defendant was stabbing the victim with enough force to break one of the victim's ribs. Butler v. State, 285 Ga. 518, 678 S.E.2d 92 (2009).
Evidence was sufficient to authorize a rational trier of fact to find the defendant guilty beyond a reasonable doubt of felony murder, aggravated assault, and possession of a firearm during the commission of a crime because a witness identified the defendant as the person the witness saw shooting and running, and witnesses testified that the day of the shooting the defendant told the witnesses that the victim had robbed the defendant; the mother of the defendant's children testified that the night of the shooting, the defendant came to her apartment in the same complex where the shooting took place, breathing heavily and wearing a shirt with bullet holes in the shirt. Allen v. State, 286 Ga. 392, 687 S.E.2d 799 (2010).
Evidence was sufficient to enable a rational trier of fact to find the defendant guilty beyond a reasonable doubt of felony murder while in the commission of aggravated assault because psychiatric testimony regarding the defendant's brain impairment and paranoid schizophrenia, and how defendant's mental condition would affect defendant's responses in an interview, did not make defendant's confession involuntary when the psychiatrist who testified as to the defendant's mental condition also testified that the defendant was competent to stand trial, was not delusional, and knew the difference between right and wrong; the evidence was not made insufficient by asserted inconsistencies in the defendant's confession, whether the inconsistencies were internal or with respect to other evidence, regarding identification of the weapon, how many times the defendant went to the victim's home, and defendant's knowledge of what killed the victim. Williams v. State, 287 Ga. 199, 695 S.E.2d 246 (2010).
Conviction for felony murder during the commission of criminal attempt to commit armed robbery was affirmed because evidence was presented that: (1) the defendant, the codefendant, and an accomplice went to a drug dealer's apartment to steal money; (2) the accomplice entered the apartment to buy marijuana; (3) the defendant and the codefendant then entered the apartment; (4) when the drug dealer resisted, the defendant shot and killed the drug dealer; (5) the accomplice, in exchange for a plea deal, assisted the police in recording incriminating telephone conversations with the codefendant; and (6) the gun that was used in the shooting was found in the codefendant's apartment. Moon v. State, 288 Ga. 508, 705 S.E.2d 649 (2011).
Evidence supported the defendant's convictions for felony murder predicated on armed robbery, armed robbery, and aggravated assault because the evidence showed that the defendant and the codefendant, after discussing the idea of stealing marijuana and whatever cash the victim had on the victim, arranged to meet with the victim to buy marijuana from the victim. When the victim got into the back seat of the defendant's vehicle and pulled out a bag of marijuana, the codefendant drew a gun and shot the victim, fatally wounding the victim. Herbert v. State, 288 Ga. 843, 708 S.E.2d 260 (2011).
Evidence was sufficient to enable any rational trier of fact to find the defendant guilty beyond a reasonable doubt of felony murder and aggravated battery in connection with the death of a victim, the defendant's infant daughter, because the evidence showed that the defendant was the only person caring for the victim during the relevant time period and that the defendant caused the victim's death. Brinson v. State, 289 Ga. 150, 709 S.E.2d 789 (2011).
In a felony murder case, testimony of eyewitnesses, cell phone exchanges between the cell phone in the defendant's possession and that of the victim just minutes before the shooting, the identification of a car used by the defendant as the car involved in the crime, and the defendant's statements about the shooting of the victim constituted sufficient evidence to enable a jury to find the defendant guilty beyond a reasonable doubt. Slaughter v. State, 289 Ga. 790, 716 S.E.2d 180 (2011).
Evidence supported the defendant's convictions for felony murder, aggravated battery, kidnapping with bodily injury, aggravated assault, and burglary, after the state presented independent corroboration in support of an accomplice's testimony connecting the defendant to the crimes; the defendant's statements to police, the defendant's actions before and after the crimes, and the defendant's girlfriend's testimony stating that the defendant asked the girlfriend to lie about the defendant's whereabouts corroborated the defendant's guilt. Brown v. State, 291 Ga. 750, 733 S.E.2d 300 (2012).
Evidence was sufficient to convict the defendant of felony murder and two counts of cruelty to a person age 65 or older because the defendant was a paid care provider for the victim, a disabled veteran; the Department of Veteran Affairs contracted with an adult daycare facility to provide care and supervision for the victim on weekdays and made arrangements with a transportation service to drive the victim to and from the daycare; the defendant knew that the victim's daycare center was closed on the day the victim died; the temperatures were freezing outside on that day; the defendant refused to allow the victim back into the house; and the victim died from hypothermia due to exposure to freezing temperatures. Smith v. State, 301 Ga. 348, 801 S.E.2d 18 (2017).
Evidence was sufficient to convict the three defendants of unlawful participation in criminal gang activity through the commission of an aggravated assault and an aggravated battery and felony murder predicated upon criminal gang activity involving a simple battery because the defendants wore red clothing and were associated with a criminal street gang; the victim waved a blue bandana and started talking about a rival gang; the three defendants participated in beating the victim; the defendants followed the victim into the road, and beat the victim until the victim lost consciousness; the victim was almost immediately struck by a car and killed; and the witnesses testified that the three defendants were among the people who left the victim lying on the road. Anthony v. State, 303 Ga. 399, 811 S.E.2d 399 (2018).
Defendant's conviction for felony murder was supported by evidence that the defendant agreed to sell methamphetamine and possessed a handgun, which the defendant gave to the defendant's cohort on the way to the drug sale; the two then robbed the two victims and shot at both victims, killing one; the two left the scene together, telephoned a senior gang member, and traveled to a gang safe house in Atlanta together. Boyd v. State, 306 Ga. 204, 830 S.E.2d 160 (2019).
Circumstantial evidence was sufficient to convict the defendant of felony murder predicated on criminal attempt to commit armed robbery because the victim was found dead from gunshot wounds; the victim's wallet was missing when the victim was found; the suspect fled the scene in a small, silver sedan; the defendant's co-indictee was driving a vehicle matching that description in the area at the time of the murder; and the defendant stated in a jailhouse telephone conversation that the defendant was involved in the week-long crime spree. Perdomo v. State, 307 Ga. 670, 837 S.E.2d 762 (2020).
Circumstantial evidence of the defendant's contentious relationship with the victim, who lived in a cabin on the defendant's property, that the victim was struck multiple times with a hatchet found in the defendant's trailer, and that a gun found in the defendant's hotel room used to shoot the victim, supported the defendant's felony murder conviction. Eggleston v. State, Ga. , S.E.2d (Sept. 28, 2020).
Evidence sufficient although cause of death undeterminable.
- Evidence that the defendant made threatening remarks about the victim and then assaulted the victim in the defendant's trailer home, resulting in the victim becoming unconscious and then dying, along with evidence that the defendant admitted the murder, hid the body, and sold the victim's car was sufficient to find the defendant guilty of felony murder in spite of the fact that the medical cause of death was undeterminable due to the body's decomposition. Currier v. State, 294 Ga. 392, 754 S.E.2d 17 (2014).
Felony murder after backing over victim with car.
- Evidence supported convictions for aggravated assault, theft by taking, and felony murder when the evidence showed that the defendant pulled the victim out of the victim's car, beat the victim with a pistol, stole the car, and deliberately backed over the victim; before the crime, the defendant told an eyewitness to those acts that the defendant planned to rob the victim; and the defendant used the victim's phone after the victim's death. Lupoe v. State, 284 Ga. 576, 669 S.E.2d 133 (2008).
Felony murder in conjunction with robbery.
- Evidence was sufficient to support convictions of felony murder and possession of cocaine. A person fitting the defendant's description, wearing black clothing and carrying a black garbage bag, ran from the store where the victim worked; within an hour of the shooting, the defendant, who lived three blocks away, gave a neighbor's child "cigars without tobacco" and lottery tickets from a black garbage bag, and said that the defendant had "hit a lick"; packages of tobacco tubes were found on the ground between the store and the defendant's apartment complex; the victim's wallet was found in a trash receptacle at the complex, and a police dog followed the scent on the wallet to the defendant's apartment; officers searching the defendant's apartment found cocaine, a handgun, black clothing, a black stocking, and a novelty dollar bill of the sort that had been given to the victim the night before the shooting; and the bullet that killed the victim was fired from the handgun in the defendant's room. Jones v. State, 284 Ga. 672, 670 S.E.2d 790 (2008).
Felony murder in gang activity.
- As the defendant drove a car slowly by a house where rival gang members were while a car passenger repeatedly fired an assault rifle at the house, resulting in the death of two victims and injuries to two others, the defendant's convictions for felony murder, aggravated assault, and possession of a firearm during the commission of a felony were supported by the evidence. Deleon v. State, 285 Ga. 306, 676 S.E.2d 184 (2009).
Evidence authorized the jury to find the defendant guilty beyond a reasonable doubt of murder, felony murder, aggravated assault, and possession of a weapon during the commission of a felony because contrary to the defendant's arguments, the evidence showed that the person who was sitting in the back seat of the victim's car was not sitting directly behind the victim, but instead, that person was in the rear seat on the passenger's side of the car; the forensics testing showed that the murderer was located to the left of the victim, not the right, and there was blood spatter on the seat behind the victim from which the jury could have inferred that no one was sitting there at the time of the shooting. Julius v. State, 286 Ga. 413, 687 S.E.2d 828 (2010).
Evidence adduced was sufficient to authorize a rational trier of fact to find beyond a reasonable doubt that the defendant was guilty of felony murder, armed robbery, and aggravated assault for attacking six people in a home because one of the victims stated that the victim saw defendant in the doorway after shots had been fired; whether the deal a codefendant made with the state rendered the codefendant's testimony biased to a degree that left the codefendant less creditworthy was a determination to be made by the jury. Mikell v. State, 286 Ga. 434, 689 S.E.2d 286, overruled on other grounds, Manley v. State, 287 Ga. 338, 698 S.E.2d 301 (2010).
When the three defendants were found guilty of felony murder predicated on the defendants unlawful participation in criminal gang activity through the commission of a simple battery, and the defendants were also found guilty of voluntary manslaughter, the trial court properly convicted the defendants of felony murder because unlawful participation in criminal gang activity through the commission of a simple battery was not just a simple battery as it involved a nexus between the simple battery and the activities of the criminal street gang; and the culpability for unlawful participation in criminal gang activity was generally not susceptible of mitigation by the sort of provocation and passion that voluntary manslaughter involved. Anthony v. State, 303 Ga. 399, 811 S.E.2d 399 (2018).
Verdicts not inconsistent.
- Verdicts convicting a defendant of felony murder and vehicular homicide were not inconsistent because the felony murder and the underlying aggravated assault were based on the defendant driving a vehicle at the victim's vehicle, while the vehicular homicide charge was based on the defendant causing the victim's death by intentionally changing lanes when it was not safe to do so, meaning that the two crimes were based on distinct underlying acts, and it was neither legally nor logically impossible to convict the defendant of both crimes. Mills v. State, 280 Ga. 232, 626 S.E.2d 495 (2006).
Similar offense evidence properly admitted.
- With regard to a defendant's convictions for malice murder, aggravated assault, and possession of a firearm by a convicted felon arising out of the shooting deaths of a woman and her unborn child and the shooting at another person, because the evidence was sufficient to establish the required similarity between the charged crimes and a 1989 shooting offense, the trial court's allowance of the evidence regarding the 1989 offense was not clearly erroneous. Biggs v. State, 281 Ga. 627, 642 S.E.2d 74 (2007).
Direct or approximate cause resulted in felony murder conviction.
- Evidence was sufficient to convict a defendant on a charge of felony murder as the evidence showed that the defendant had leveled two blows with a pistol to the victim's head and testimony from the medical examiner established that either the blows or the victim's striking the victim's head on the pavement when the victim fell as a result of the blows caused the victim's fatal injuries; thus, the defendant's blows were either the direct or proximate cause of the victim's death. Chaney v. State, 281 Ga. 481, 640 S.E.2d 37 (2007).
Proximate causation was shown in the defendant's conviction for felony murder in an armed robbery of a seller of hair (for hair weaves) because it was foreseeable that the victim would fight back and that, when the victim's friend was shot at, the victim would shoot the defendant's sister. Menzies v. State, 304 Ga. 156, 816 S.E.2d 638 (2018).
Instruction on proximate cause in relationship to felony murder.
- Trial court did not err in failing to instruct the jury on the law regarding proximate cause and its relationship to felony murder because the omission of additional language concerning proximate cause could not be considered a clear or obvious error under O.C.G.A. § 17-8-58; the jury was instructed that to find the defendant guilty of felony murder while in the commission of felony criminal attempt to possess cocaine, the jury had to find beyond a reasonable doubt that the felony was dangerous per se or, by the attendant circumstances in the case, created a foreseeable risk of death, and the jury was also instructed that for felony murder to be found, the jury had to find that, in the commission of the underlying felony, the defendant caused the death of another human being irrespective of malice. Sapp v. State, 290 Ga. 247, 719 S.E.2d 434 (2011).
No error in failing to charge on proximate cause.- Trial court did not plainly err by failing to instruct the jury on proximate cause because the court did instruct the jury that the defendant was indicted for felony murder for causing the victim's death by cutting the victim with a knife and the trial court properly defined felony murder. Campbell-Williams v. State, Ga. , S.E.2d (Aug. 24, 2020).
Bragging about murder as evidence.
- Felony murder shown when the defendant was overheard bragging about shooting the victim. Watkins v. State, 276 Ga. 578, 581 S.E.2d 23 (2003).
Evidence sufficient for malice murder of business partner.
- Evidence that the defendant and the victim disagreed about how their car wash business was to be run, that the defendant started removing supplies from the business, that the defendant obtained a gun and returned to the car wash, that the defendant talked to the victim outside the car wash while witnesses were inside the car wash, that the witnesses saw the defendant fire shots toward the ground and the victim's body was later found on the ground, and that the defendant admitted shooting the victim because the defendant was tired of the victim taking money from the business, was sufficient to support the defendant's conviction for malice murder although a new trial had to be held due to procedural errors that occurred. Laster v. State, 276 Ga. 645, 581 S.E.2d 522 (2003).
No error in failing to charge on intervening cause of death.- Trial court did not plainly err by failing to instruct the jury on an intervening cause of death based on the victim's friend's failure to bring the victim directly to the hospital because the instruction was not supported by the evidence because it was reasonably foreseeable that when the defendant stabbed the victim, the victim would die without immediate medical intervention. Campbell-Williams v. State, Ga. , S.E.2d (Aug. 24, 2020).
Felony murder in death of a child.
- Evidence was sufficient to support the defendant's convictions for felony murder in violation of O.C.G.A. § 16-5-1(c) and child cruelty in violation of O.C.G.A. § 16-5-70(b) after the record revealed that the eight-month old victim suffered a lacerated liver resulting from blunt force trauma to the abdomen, the injury was inflicted 12-24 hours prior to death, and that despite the infant's obvious pain and tenderness in the abdominal area, the defendant refused to take the infant, or to allow the child's parent to take the infant, to seek medical attention for fear that the baby would be taken away; although the indictment did not charge that the defendant committed the predicate act of child cruelty with malice within the count alleging felony murder, such was not insufficient because the separate count alleging child cruelty indicated that it was committed with malice. Mikenney v. State, 277 Ga. 64, 586 S.E.2d 328 (2003).
Evidence supported the defendant's convictions of felony murder while in the commission of cruelty to children in the first degree and making a false statement to a government agency after a 23-month-old child whom the defendant had been baby-sitting died from severe aspiration pneumonia due to brain swelling and bleeding on the surface of the brain caused by multiple blows to the child's head and face; the defendant was the only adult with the child during the afternoon and early evening in question, the child had appeared uninjured and was walking when the child visited a store earlier in the day, the child had "pattern injury" contusions indicating that hair had been pulled out, a medical examiner testified that the child's brain swelling would have prevented the child from performing normal functions such as walking, talking, or waking, and the defendant told several conflicting stories about how the child had been injured. Banta v. State, 282 Ga. 392, 651 S.E.2d 21 (2007).
There was sufficient evidence to support the defendant's convictions for the felony murder and aggravated battery of the defendant's two-month-old child: (1) the child, who had been in good health at a pediatric checkup earlier in the day, was limp and cold when the defendant brought the child to an office where the child's other parent had an appointment; (2) the child was diagnosed as a "shaken baby"; and (3) the defendant was the only person with the child during and immediately prior to the onset of the child's symptoms. Smith v. State, 283 Ga. 237, 657 S.E.2d 523 (2008).
Felony murder committed by vehicle.
- Evidence was sufficient to support felony murder and aggravated assault convictions because: (1) the defendant, after exchanging blows with the defendant's spouse while in a car, left the area but returned shortly thereafter in the car; (2) one eyewitness saw the defendant strike the spouse with the front of the car, back up striking the spouse again with the rear of the car, and drive off; (3) other witnesses saw two persons brought to the scene by the defendant beating and stomping the victim; and (4) the medical examiner testified that the victim died from blunt force head trauma consistent with being struck by a vehicle and that the force of the fatal blow would most likely have left the victim unconscious or unable to walk around. Rankin v. State, 278 Ga. 704, 606 S.E.2d 269 (2004).
Sufficient evidence supported a conviction for felony murder because the testimony of witnesses established that, when the victim's vehicle re-entered a highway, after defendant had run the victim off the road, it was safe to do so and the defendant then abruptly changed lanes, rammed the vehicle into the rear of the victim's vehicle, and pushed the vehicle along the highway without applying the brakes. Mills v. State, 280 Ga. 232, 626 S.E.2d 495 (2006).
When defendants struck another car while fleeing from the scene of an armed robbery defendants' committed, and expert testimony established that the driver of the car was killed by blunt impact injuries caused by the crash, the evidence was sufficient to support defendants' felony murder convictions. Mitchell v. State, 282 Ga. 416, 651 S.E.2d 49 (2007).
Evidence sufficient for felony murder conviction despite absence of victim's body.
- In a murder prosecution in which the victim's body was never found, the evidence established that defendant and the victim had left a ball park where they worked within five minutes of each other, that the victim's car was found abandoned at a gas station adjacent to the park, that a person whose voice characteristics matched defendant's said on the telephone that defendant had taken the victim at "the station," and that defendant made incriminating statements to fellow inmates, was sufficient evidence to convict defendant of murder, and to deny a directed verdict of acquittal. Hinton v. State, 280 Ga. 811, 631 S.E.2d 365 (2006).
Felony murder committed by inmates against another inmate.
- Evidence supported a defendant's conviction for felony murder (aggravated assault) as: (1) the authorities received a note stating the victim had not committed suicide in the victim's jail pod, but that the pod's inmates had murdered the victim; (2) the defendant told an agent that the defendant had complied with a co-indictee's directive to give the victim a bearhug and, when the defendant picked up the victim, the co-indictee strangled the victim with an elastic bandage; (3) the defendant also told the agent that some of the inmates believed that the victim was going to report to authorities that some inmates were chipping away at the defendant's window in an attempt to escape; (4) the chiseling around the defendant's window and a rod that served as the chisel were discovered; and (5) a forensic pathologist testified that the victim's injuries were not commonly found in a hanging, but were consistent with a ligature strangulation. McKinney v. State, 281 Ga. 92, 635 S.E.2d 153 (2006).
2. Underlying Felony
"Felony" defined.
- Under the felony-murder statute, a "felony" means any felony that is dangerous per se or which by the attendant circumstances creates a foreseeable risk of death. Ford v. State, 262 Ga. 602, 423 S.E.2d 255 (1992).
Proof of felony required.
- Proof of elements of offense of felony murder necessarily requires proof of elements of felony. Woods v. State, 233 Ga. 495, 212 S.E.2d 322 (1975); Atkins v. Hopper, 234 Ga. 330, 216 S.E.2d 89 (1975).
Defense counsel was not ineffective under Ga. Const. 1983, Art. I, Sec. I, Para. XIV and U.S. Const., amend. 6 for failure to request a bifurcated trial on felony murder under O.C.G.A. § 16-5-1 and on possession of a firearm by a convicted felon in violation of O.C.G.A. § 16-11-131; because the possession count was a predicate offense for the felony murder count, the prior conviction that was admitted into evidence was relevant to the felony murder count, and it was not necessary to sever the possession count. Wells v. State, 281 Ga. 253, 637 S.E.2d 8 (2006).
Evidence was insufficient to support conviction for offense of felony murder based on armed robbery since there was no evidence to show that the defendants took any money or items from the restaurant at which the crime occurred or its employees, or even that they entered the restaurant after firing a fatal shot from the doorway threshold. Prater v. State, 273 Ga. 477, 541 S.E.2d 351 (2001).
Conviction of the defendants for felony murder could not be upheld on the basis that they committed attempted armed robbery and killed the victim in the course of such crime since the court instructed the jury with regard to armed robbery but not with regard to attempted armed robbery. Prater v. State, 273 Ga. 477, 541 S.E.2d 351 (2001).
"He causes" defined.
- Supreme Court of Georgia overrules State v. Crane, 247 Ga. 779 (1981), and its subsequent cases relying upon Crane. The felony murder statute, O.C.G.A. § 16-5-1(c), requires only that the defendant's felonious conduct proximately cause the death of another person. The causation issue should be decided by a properly instructed jury at trial, using the customary proximate cause standard. State v. Jackson, 287 Ga. 646, 697 S.E.2d 757 (2010).
Underlying felony is a lesser included offense of felony murder under former Code 1933, § 26-505. Woods v. State, 233 Ga. 495, 212 S.E.2d 322 (1975); Atkins v. Hopper, 234 Ga. 330, 216 S.E.2d 89 (1975) (see O.C.G.A. § 16-1-6).
Felony fleeing and attempting to elude a police officer under O.C.G.A. § 40-6-395 served as a predicate to felony murder. State v. Tiraboschi, 269 Ga. 812, 504 S.E.2d 689 (1998).
Felony murder may be predicated upon underlying felony which is itself part of the homicide. Baker v. State, 236 Ga. 754, 225 S.E.2d 269 (1976).
Conviction of felony murder, predicated upon underlying felony which is itself a part of the homicide, does not violate doctrine of due process. Larkin v. State, 247 Ga. 586, 278 S.E.2d 365 (1981).
Location of underlying felony.
- Defendant's murder of the victim was within the res gestae of the kidnapping with bodily injury since the victim was under the continuous control of the defendant until the victim was killed; to hold otherwise would lead to the absurdity that a defendant who commits kidnapping with bodily injury in one county, and abducts the victim to a second county where defendant kills the victim without malice aforethought, could not be charged with felony murder in either county. Lee v. State, 270 Ga. 798, 514 S.E.2d 1, cert. denied, 528 U.S. 1006, 120 S. Ct. 503, 145 L. Ed. 2d 388 (1999).
Possession of a weapon on school property.
- Because defendant's possession of a weapon on school property was dangerous under the circumstances, the offense was sufficient to support defendant's conviction for felony murder. Mosley v. State, 272 Ga. 881, 536 S.E.2d 150 (2000).
Aggravated assault can be felony triggering operation of felony-murder rule. To demonstrate malice murder, evidence that the defendant acted in reckless disregard of human life is as equally probative as evidence that defendant acted with a specific intent to kill. Sutton v. State, 245 Ga. 192, 264 S.E.2d 184 (1980).
Aggravated assault is a felony, and a death, although unintended, resulting from such assault may constitute felony murder. Marable v. State, 154 Ga. App. 426, 268 S.E.2d 720 (1980).
Aggravated assault, assault with a deadly weapon, upon the homicide victim can support a finding of felony murder. Strong v. State, 251 Ga. 540, 307 S.E.2d 912 (1983).
Aggravated assault as underlying felony.
- When a defendant was charged in an indictment with malice murder and with possession of a pistol during the commission of a crime, and the indictment alleged that appellant shot the victim with a pistol contrary to the laws of Georgia, the trial court could charge the jury on felony murder, with aggravated assault as the supporting felony. Middlebrooks v. State, 253 Ga. 707, 324 S.E.2d 192 (1985).
Evidence was sufficient to support convictions of the aggravated assault of one victim and of the felony murder of another victim, based on the underlying felony of aggravated assault of that victim. Walker v. State, 258 Ga. 443, 370 S.E.2d 149 (1988).
When defendant killed the victim by stabbing the victim with a knife, the trial court was authorized in charging the jury on the principle of felony murder, the felony being aggravated assault. Catchings v. State, 256 Ga. 241, 347 S.E.2d 572 (1986).
Defendant's aggravated assault conviction did not merge into a felony murder conviction, because neither the murder nor the underlying felony of criminal attempt to commit armed robbery required the state to prove the element of reasonable apprehension of receiving a violent injury, which was a required element of the aggravated assault count as indicted. Willingham v. State, 281 Ga. 577, 642 S.E.2d 43 (2007).
Two defendants were properly convicted of felony murder with aggravated assault, O.C.G.A. § 16-5-21(a)(2), as the predicate felony since the evidence established that the defendants killed the victim by repeatedly striking the victim's face and head, and the jury was authorized to conclude that the defendants' hands and feet were used as deadly weapons. Dasher v. State, 285 Ga. 308, 676 S.E.2d 181 (2009).
Evidence was sufficient to enable the trial court to find, beyond a reasonable doubt, that the defendant possessed the intent necessary to commit aggravated assault, O.C.G.A. § 16-5-21(a), and felony murder, O.C.G.A. § 16-5-1(c), because the defendant used a vehicle as an offensive weapon while the defendant was extremely drunk, and the evidence was sufficient to prove both forms of simply assault under O.C.G.A. § 16-5-20(a)(1)-(2) by the defendant against all six of the victims; the defendant engaged in an extended high-speed car chase with a driver, deliberately rammed the other driver's truck, and attempted to smash into the other driver head-on after the truck stalled, and within minutes after the driver escaped, the defendant came upon the other five victims by swerving sharply into oncoming traffic and slamming into a vehicle. Guyse v. State, 286 Ga. 574, 690 S.E.2d 406 (2010).
Evidence was sufficient to authorize a rational trier of fact to find the defendant guilty beyond a reasonable doubt of murder and aggravated assault because the defendant's conduct before, during, and after the crimes supported the finding that the defendant was a party thereto, notwithstanding the jury's acquittal of the defendant on three weapons charges. Allen v. State, 288 Ga. 263, 702 S.E.2d 869 (2010).
Defendant's conviction for aggravated assault was not authorized because the count of the indictment that alleged aggravated assault had to be merged into the felony murder count; although the felony murder and the underlying felony were committed on different victims, the count of the indictment alleging felony murder set forth the aggravated assault against a victim as the underlying felony supporting the charge of felony murder. Glass v. State, 289 Ga. 542, 712 S.E.2d 851 (2011).
State proved that the defendant possessed the intent required to commit the predicate aggravated assault and conspiracy felonies for the felony murder conviction because evidence was sufficient to authorize a rational jury to conclude that the defendant, with a coparty and coconspirator, intended to rob the victim using a deadly weapon, that the victim was reasonably apprehensive of receiving a violent injury as a result of their intentional acts, and that the defendant was guilty beyond a reasonable doubt as a party to the crimes for which the defendant was convicted pursuant to O.C.G.A. § 16-2-2. Johnson v. State, 289 Ga. 498, 713 S.E.2d 376 (2011).
Jury was authorized to find that the evidence was sufficient to find the defendant guilty beyond a reasonable doubt of felony murder during the commission of aggravated assault in the manner alleged in the indictment because at trial the medical examiner testified that the cause of the victim's death was suffocation; although the defendant told an ex-spouse over the phone that the defendant choked the victim, there was no other evidence to corroborate that statement while there was much physical and scientific evidence that pointed to the cause of death as suffocation. Davis v. State, 290 Ga. 421, 721 S.E.2d 886 (2012).
Because the case law provided a defendant with an avenue to argue that a specific felony offense could not serve as a predicate to felony murder when such offense was neither inherently dangerous nor life-threatening, but aggravated assault with a deadly weapon was the paradigmatic inherently dangerous felony, the defendant's argument that the case law precluded the defendant's felony murder conviction based on aggravated assault with a deadly weapon was meritless. Eberhart v. State, 307 Ga. 254, 835 S.E.2d 192 (2019).
Aggravated assault committed by police sergeant as underlying felony.
- Evidence was sufficient to convict the defendant, a former police sergeant, of felony murder based on aggravated assault with a deadly weapon, specifically a TASER, because the medical examiner determined that the victim died from hypertensive cardiovascular disease exacerbated by physical exertion and conducted electrical stimulation from the application of the TASERs in drive-stun mode; and the state presented evidence that the repeated tasing of the victim in drive-stun mode over a span of about 20 minutes when the victim was exhausted from running and handcuffed not only inflicted intense physical pain, but also materially accelerated the victim's death minutes later. Eberhart v. State, 307 Ga. 254, 835 S.E.2d 192 (2019).
Aggravated assault, possession of firearm, and discharge of firearm sufficient to support felony murder conviction.
- Because the defendant and an accomplice ordered the victim and another individual against a wall, took the victim's money at gunpoint, and the defendant began to point and wave the gun when it fired, resulting in the victim being shot and subsequently dying, the evidence was sufficient for a rational trier of fact to find the defendant guilty of felony murder while committing aggravated assault and of possession of a firearm. Taylor v. State, 279 Ga. 706, 620 S.E.2d 363 (2005).
Accomplice to aggravated assault.
- Evidence that the defendant was seen making notes at the crime scene the day of the shooting, that the defendant accompanied the coconspirator knowing that the coconspirator intended to rob a cab driver, and that the defendant drove the coconspirator away after the shooting of the cab driver authorized the jury to find that the defendant was a party to the crime of aggravated assault committed with a deadly weapon, and hence to felony murder. Brown v. State, 278 Ga. 724, 609 S.E.2d 312 (2004).
Even if defendant decided to take victim's money only after twice shooting the victim, the jury was authorized to find that the offense of murder was committed while defendant was engaged in the commission of the offense of armed robbery. Davis v. State, 255 Ga. 588, 340 S.E.2d 862, cert. denied, 479 U.S. 871, 107 S. Ct. 243, 93 L. Ed. 2d 168 (1986).
Evidence was sufficient to support the defendant's convictions on two counts of felony murder predicated on the underlying felony of aggravated assault, one count of armed robbery, and two counts of possession of a firearm in the commission of a crime, as the evidence showed that the defendant brandished a handgun and forced the two victims to give the defendant money, and that the defendant then fatally shot them after one victim argued with other people the defendant was with regarding the purity of a drug purchase the one victim had just made. Harden v. State, 278 Ga. 40, 597 S.E.2d 380 (2004).
Death growing out of aggravated assault is either malice murder or felony murder, or else it is not punishable as a homicide. Baker v. State, 236 Ga. 754, 225 S.E.2d 269 (1976); Cole v. State, 254 Ga. 286, 329 S.E.2d 146 (1985).
Escape as lesser offense of felony murder.
- Conviction for escape must be set aside, where it merges into greater crime of felony murder. Gore v. State, 246 Ga. 575, 272 S.E.2d 306 (1980).
Underlying felony of armed robbery did not merge with defendant's felony-murder conviction, where the underlying felony charged in the indictment was committed upon one victim and the felony murder charged in another count of the indictment was committed upon another person. Kimbrough v. State, 254 Ga. 504, 330 S.E.2d 875 (1985).
Criminal attempt-armed robbery is a lesser included offense of felony murder. To demonstrate malice murder, evidence that the defendant acted in reckless disregard of human life is as equally probative as evidence that defendant acted with a specific intent to kill. Farley v. State, 238 Ga. 181, 231 S.E.2d 761 (1977).
Robbery of gas station attendant.
- Evidence that the defendant shot the victim, a service station attendant, while attempting to rob the service station with a revolver was sufficient to support the defendant's conviction for felony murder. Brockman v. State, 292 Ga. 707, 739 S.E.2d 332 (2013).
Charges of burglary and murder not legally incompatible.
- Charge of burglary based on defendant's intent to commit aggravated assault on occupant of dwelling and murder for death of occupant during burglary were neither legally incompatible nor lesser included offenses of each other. Williams v. State, 250 Ga. 553, 300 S.E.2d 301, overruled on other grounds by Venturino v. State, 830 S.E.2d 110, 2019 Ga. LEXIS 435 (Ga. 2019), cert. denied, 462 U.S. 1124, 103 S. Ct. 3097, 77 L. Ed. 2d 1356 (1983).
Evidence was sufficient to support defendant's convictions for malice murder and burglary, where defendant entered the victim's apartment with keys that defendant had as a maintenance worker. Oliver v. State, 276 Ga. 665, 581 S.E.2d 538 (2003).
Homicide within res gestae of underlying felony of burglary.
- Defendants' conviction for felony murder was affirmed because the homicide was within the res gestae of the underlying felony of burglary for the purpose of the felony-murder rule since defendants were observed in the area of the burglaries, their vehicle was parked at one of the burglarized homes, and police maintained continuous observation of defendants and their vehicle throughout the chase and subsequent death of another motorist. Westmoreland v. State, 287 Ga. 688, 699 S.E.2d 13 (2010).
Cruelty to children as defined by O.C.G.A. § 16-5-70 may constitute the underlying felony in a felony murder prosecution. Estes v. State, 251 Ga. 347, 305 S.E.2d 778 (1983).
Evidence that the cause of death was loss of blood due to a laceration of the liver caused by blunt force trauma to the abdomen, most likely a punch with a fist, was sufficient to show either excessive pain or the malice required for a conviction of felony murder with cruelty to children. Folson v. State, 278 Ga. 690, 606 S.E.2d 262 (2004).
Evidence that there was an 80 to 90 percent chance that injuries that caused the death of a defendant's 10-month-old child were inflicted within an hour of the child's death, that the defendant left the apartment at 4:10 P.M., that an attending physician was called to the emergency room at 5:46 P.M., and that the child was dead on arrival at the emergency room was sufficient to support the defendant's convictions for felony murder while in commission of cruelty to a child in the second degree, aggravated assault, and cruelty to a child in the first degree; the evidence permitted the jury to conclude that the time frame in which the child's injuries were inflicted included the time before the defendant left for work, there was evidence concerning the defendant's actions before and after the child's death that indicated the defendant's guilt, and the jury was not required to accept the defendant's version of events. White v. State, 281 Ga. 276, 637 S.E.2d 645 (2006).
Sufficient evidence supported a conviction of felony murder while in the commission of cruelty to children in the first degree: (1) the pathologist who performed the child's autopsy testified that the 14-month-old child, who had been injured while left in the defendant's care, died from multiple blunt force injuries that were inconsistent with falling off a bed or being dropped, as claimed by the defendant; (2) a defense pathologist agreed that there were at least seven distinct impact sites on the child's head and about 105 impact sites on the child's body; and (3) there was evidence that two years before, the defendant's six-month-old child had been left in the defendant's care and had been returned to the child's parent with unexplained bruises and other injuries. Moore v. State, 283 Ga. 151, 656 S.E.2d 796 (2008).
Evidence was sufficient to convict the defendant of felony murder, predicated on cruelty to children in the second degree for failing to obtain medical treatment for the victim, because the defendant's oldest daughter heard a bump and the victim cry sometime before 10 o'clock in the evening; the medical examiner said the victim was alive for approximately three hours after experiencing the trauma to the victim's head; it was evident that the victim experienced head trauma because of the vomit in the defendant's bedroom; and the medical examiner testified the victim sustained four impacts to the victim's head and the injuries sustained were inconsistent with a household fall. Jones v. State, 302 Ga. 488, 807 S.E.2d 344 (2017).
Conspiracy to commit armed robbery.
- Since murder is probable consequence of conspiracy to commit armed robbery, codefendant is equally responsible for murder although the codefendant was not actual slayer and was not present at the time of killing. Fortner v. State, 248 Ga. 107, 281 S.E.2d 533 (1981).
Cardiac arrest during burglary.
- Evidence that the cause of death was cardiac arrest caused by the victim's small coronary arteries and the stress of events during the burglary was sufficient to sustain a conviction for felony murder. Durden v. State, 250 Ga. 325, 297 S.E.2d 237 (1982).
Possession of firearm by convicted felon.
- Crime of possession of a firearm by a convicted felon does not merge with act of shooting the firearm; therefore, a jury may find a convicted felon guilty of felony murder by treating the felon's possession of a firearm in committing the murder as the underlying felony. Scott v. State, 250 Ga. 195, 297 S.E.2d 18 (1982); Brand v. State, 258 Ga. 378, 369 S.E.2d 896 (1988).
A status felony, including the possession of a firearm by a convicted felon, is not inherently dangerous and, under circumstances which involve no assault or any other criminal conduct, is not a felony upon which a felony murder conviction may be obtained. Ford v. State, 262 Ga. 602, 423 S.E.2d 255 (1992).
Defendant's demurrer to a charge of felony murder, predicated on a charge of possession of a weapon by a convicted felon, in violation of O.C.G.A. § 16-11-131, which was predicated on defendant's out-of-state misdemeanor conviction for involuntary manslaughter, for which the maximum sentence was five years imprisonment, was properly sustained, because § 16-11-131(a) did not give defendant adequate notice that defendant's misdemeanor conviction could be used as the predicate felony for a charge of possession of a firearm by a convicted felon. State v. Langlands, 276 Ga. 721, 583 S.E.2d 18 (2003).
Defendant's conviction of possession of a firearm by a convicted felon under O.C.G.A. § 16-11-131 merged with the defendant's conviction of felony murder under O.C.G.A. § 16-5-1(c) predicated on possession of a firearm by a convicted felon. Lawson v. State, 280 Ga. 881, 635 S.E.2d 134 (2006).
Defendant's conviction of voluntary manslaughter under O.C.G.A. § 16-5-2 did not require reversal of the defendant's conviction of felony murder under O.C.G.A. § 16-5-1(c) when the underlying felony was possession of a firearm by a convicted felon, as those offenses did not merge. Lawson v. State, 280 Ga. 881, 635 S.E.2d 134 (2006).
Conviction of felony murder upheld.
- When the state's evidence showed that the defendant pulled into a parking lot while the victim was robbing a friend of the defendant's, waited in the defendant's car until the victim came around a corner, and then shot the victim three times without the victim ever having aimed the victim's gun at the defendant, there was sufficient evidence to convict the defendant of felony murder based on the defendant's killing the victim while being a convicted felon in possession of a firearm in violation of O.C.G.A. § 16-11-131; although the defendant claimed that the defendant acted in self-defense, the jury was free to reject the defendant's claim. Roper v. State, 281 Ga. 878, 644 S.E.2d 120 (2007).
Convicted felon in possession of a firearm who furnishes it to another for the purpose of shooting a third person may be found guilty of felony murder even though the trigger-man is found guilty of malice murder. Whitehead v. State, 255 Ga. 526, 340 S.E.2d 885 (1986).
Victim shot during theft.
- Felony-murder rule is applicable where defendant's purpose in shooting victim was to commit theft. Edwards v. State, 233 Ga. 625, 212 S.E.2d 802 (1975).
Offense of misuse of a firearm while hunting can serve as the predicate felony to a felony murder conviction. Chapman v. State, 266 Ga. 356, 467 S.E.2d 497 (1996).
Distributing controlled substance as underlying felony.
- Defendant may be convicted of felony murder based on the underlying felony of distributing a controlled substance if that felony is inherently dangerous, and if the defendant directly causes the death of the victim while in the commission of the felony. Hulme v. State, 273 Ga. 676, 544 S.E.2d 138 (2001).
Evidence was sufficient to support conviction of felony murder based on the underlying felony of distributing a controlled substance since the defendant controlled the dosages of methadone that the victim took on a daily basis and gave the victim a dosage on the day of the victim's death that could have been lethal without regard to other drugs the victim might have consumed. Hulme v. State, 273 Ga. 676, 544 S.E.2d 138 (2001).
Evidence that the defendants knew the victim had been drinking and taking drugs when they injected the victim with oxycodone, and that the victim died of a drug overdose was sufficient to prove that the defendants directly caused the victim's death in the commission of a felony, the distribution of oxycodone. Carter v. State, 285 Ga. 394, 677 S.E.2d 71 (2009).
Participation in drug transaction meant no instruction on justification.
- Based on the evidence supporting the defendant's participation in a felony drug transaction at the time of the fatal shooting of the victim, the trial court was authorized to instruct the jury pursuant to O.C.G.A. § 16-3-21(b)(2) that a person was not justified in using force in defense of self or others if the person was attempting to commit, committing, or fleeing after the commission or attempted commission of a felony; the defendant affirmatively chose to engage in the potentially dangerous and violent criminal business of a felony drug deal before the fatal confrontation with the victim took place. Smith v. State, 290 Ga. 768, 723 S.E.2d 915 (2012).
Child abuse.
- Ample evidence concerning the child victim's condition and expert testimony regarding the same was presented to authorize the jury to find defendant guilty of committing felony murder by holding the child in scalding water, and guilty of committing cruelty to a child by failing to provide medical attention, and to reject the evidence and hypothesis defendant presented in an attempt to refute the charges. Robles v. State, 277 Ga. 415, 589 S.E.2d 566 (2003).
Voluntary and involuntary manslaughter do not invoke felony murder rule.
- Voluntary manslaughter, and felony of involuntary manslaughter where it applies, are not themselves felonies which will invoke felony-murder rule as to death of main victim. Therefore, if a jury finds felonious manslaughter, they should not go on to reason that this offense, being itself a felony, turns the killing into a felony murder. The jury should be instructed in accordance with this principle. Malone v. State, 238 Ga. 251, 232 S.E.2d 907 (1977).
When the jury renders a verdict for voluntary manslaughter, the jury cannot also find felony murder based on the same underlying aggravated assault. Edge v. State, 261 Ga. 865, 414 S.E.2d 463 (1992).
Voluntary manslaughter is a lesser included offense of felony murder. Young v. State, 141 Ga. App. 261, 233 S.E.2d 221 (1977).
With respect to jury instructions, voluntary manslaughter is a lesser included offense of felony murder under O.C.G.A. §§ 16-1-6 and16-5-1(c), because an act done in passion involves a less culpable mental state than the state of real or imputed malice which is the foundation of the felony-murder rule. Therefore, where facts warrant it, a charge on voluntary manslaughter may indeed be given in a felony-murder trial. Malone v. State, 238 Ga. 251, 232 S.E.2d 907 (1977).
Defendant, who shot the victim in the abdomen, should not have been convicted of both voluntary manslaughter in violation of O.C.G.A. § 16-5-2 and felony murder while in the commission of an aggravated assault in violation of O.C.G.A. § 16-5-1(c); there was one assault, and the jury found that the fatal assault was mitigated by provocation and passion, so only the voluntary manslaughter conviction was proper. Lawson v. State, 280 Ga. 881, 635 S.E.2d 134 (2006).
Conviction of both felony murder and underlying felony is proscribed, since latter is lesser included offense of former. Woods v. State, 233 Ga. 495, 212 S.E.2d 322 (1975); Atkins v. Hopper, 234 Ga. 330, 216 S.E.2d 89 (1975).
Defendant in felony-murder trial cannot be convicted of felony upon which conviction of felony murder is based, as it is a lesser included offense of felony murder. Collier v. State, 244 Ga. 553, 261 S.E.2d 364 (1979), cert. denied, 445 U.S. 946, 100 S. Ct. 1346, 63 L. Ed. 2d 781 (1980), overruled on other grounds, Satterfield v. State, 248 Ga. 538, 285 S.E.2d 3 (1981); Thompson v. State, 263 Ga. 23, 426 S.E.2d 895 (1993), overruled on other grounds, McClellan v. State, 274 Ga. 819, 561 S.E.2d 82 (2002).
Defendant may not be convicted lawfully of both felony murder and an underlying felony if the felony murder and underlying felony were committed on different victims, and when the count of the indictment alleging felony murder sets forth the underlying felony or felonies supporting the charge of felony murder. Walker v. State, 254 Ga. 149, 327 S.E.2d 475, cert. denied, 474 U.S. 865, 106 S. Ct. 185, 88 L. Ed. 2d 154 (1985).
Defendant may not be convicted of felony murder and also be convicted of the underlying felony (cruelty to children) which was alleged by the indictment to support the conviction of felony murder. Zackery v. State, 257 Ga. 442, 360 S.E.2d 269 (1987).
Defendant may not be convicted of felony murder and also be convicted of the underlying felony which was alleged by the indictment to support the felony murder conviction; and sentence for the aggravated assault was therefore vacated. Jones v. State, 264 Ga. 144, 442 S.E.2d 245 (1994).
Evidence of guilt overwhelming despite attempt to commit felony murder not recognized crime.
- Assuming without deciding that an attempt to commit felony murder is not a recognized crime in Georgia, the evidence supporting the defendant's other convictions was overwhelming; thus, the inclusion of the attempt to commit felony murder counts, even if erroneous, would not have prejudiced the jury's consideration of guilt as to the other counts in the indictment. Summerlin v. State, 339 Ga. App. 148, 793 S.E.2d 477 (2016).
Challenge to felony murder conviction moot.
- Defendant's challenge to the defendant's felony murder conviction was moot because that conviction was vacated by operation of law. Mills v. State, 287 Ga. 828, 700 S.E.2d 544 (2010).
Possession of controlled substance.
- Because the defendant participated in a felony drug deal as the purchaser, the defendant was affirmatively choosing to engage in a dangerous and potentially violent criminal activity; thus, the defendant's criminal attempt to possess cocaine was dangerous and sufficiently connected to the murder so as to also serve as an underlying felony for the felony murder conviction. Chance v. State, 291 Ga. 241, 728 S.E.2d 635 (2012).
3. Termination of Underlying Felony
Homicide as felony murder committed after technical completion of underlying felony.
- Murder may be committed in commission of a felony so as to come within O.C.G.A. § 16-5-1(c), although the murder does not take place until after the felony itself has been technically completed, if it is committed within res gestae of the felony. Collier v. State, 244 Ga. 553, 261 S.E.2d 364 (1979), cert. denied, 445 U.S. 946, 100 S. Ct. 1346, 63 L. Ed. 2d 781 (1980), overruled on other grounds, Satterfield v. State, 248 Ga. 538, 285 S.E.2d 3 (1981); Thompson v. State, 263 Ga. 23, 426 S.E.2d 895 (1993), overruled on other grounds, McClellan v. State, 274 Ga. 819, 561 S.E.2d 82 (2002).
Whether felony is terminated is question of fact for jury unless evidence is so overwhelming that reasonable people could not differ. Collier v. State, 244 Ga. 553, 261 S.E.2d 364 (1979), cert. denied, 445 U.S. 946, 100 S. Ct. 1346, 63 L. Ed. 2d 781 (1980), overruled on other grounds, Satterfield v. State, 248 Ga. 538, 285 S.E.2d 3 (1981); Thompson v. State, 263 Ga. 23, 426 S.E.2d 895 (1993), overruled on other grounds, McClellan v. State, 274 Ga. 819, 561 S.E.2d 82 (2002).
When underlying felony terminates for purposes of felony-murder rule.
- Weight of authority holds that underlying felony continues during escape phase of felony if there is continuous pursuit immediately organized, and felony terminates at point perpetrator has arrived at place of seeming security or when perpetrator is no longer pursued by authorities. Collier v. State, 244 Ga. 553, 261 S.E.2d 364 (1979), cert. denied, 445 U.S. 946, 100 S. Ct. 1346, 63 L. Ed. 2d 781 (1980), overruled on other grounds, Satterfield v. State, 248 Ga. 538, 285 S.E.2d 3 (1981); Thompson v. State, 263 Ga. 23, 426 S.E.2d 895 (1993), overruled on other grounds, McClellan v. State, 274 Ga. 819, 561 S.E.2d 82 (2002).
What constitutes pursuit so as to continue underlying felony during escape.
- Mere fact of delay in beginning pursuit until alarm can be sounded and pursuit organized and instituted does not necessarily segregate flight and prevent its being part and parcel of crime. Collier v. State, 244 Ga. 553, 261 S.E.2d 364 (1979), cert. denied, 445 U.S. 946, 100 S. Ct. 1346, 63 L. Ed. 2d 781 (1980), overruled on other grounds, Satterfield v. State, 248 Ga. 538, 285 S.E.2d 3 (1981); Thompson v. State, 263 Ga. 23, 426 S.E.2d 895 (1993), overruled on other grounds, McClellan v. State, 274 Ga. 819, 561 S.E.2d 82 (2002).
Homicide committed in flight from felony invokes felony-murder rule.
- Homicide is within res gestae of underlying felony for purpose of felony-murder rule if it is committed while fleeing scene of crime. Collier v. State, 244 Ga. 553, 261 S.E.2d 364 (1979), cert. denied, 445 U.S. 946, 100 S. Ct. 1346, 63 L. Ed. 2d 781 (1980), overruled on other grounds, Satterfield v. State, 248 Ga. 538, 285 S.E.2d 3 (1981); Thompson v. State, 263 Ga. 23, 426 S.E.2d 895 (1993), overruled on other grounds, McClellan v. State, 274 Ga. 819, 561 S.E.2d 82 (2002).
When victims were killed while defendant was fleeing the scene of a burglary, defendant was still in the commission of the burglary for purposes of the felony murder rule. Diamond v. State, 267 Ga. 249, 477 S.E.2d 562 (1996).
There was no fatal variance between a felony-murder indictment, which alleged that the defendant and an accomplice beat and choked a home-invasion robbery victim, and the proof at trial, which showed that the victim died of smoke inhalation after being left unconscious in a burning house, because the choking rendered the victim unconscious and proximately caused the victim's death in the fire. Cooper v. State, 286 Ga. 66, 685 S.E.2d 285 (2009).
Effect of perpetrator's arrest.
- Underlying felony can terminate for purpose of felony-murder rule if perpetrator is arrested. Collier v. State, 244 Ga. 553, 261 S.E.2d 364 (1979), cert. denied, 445 U.S. 946, 100 S. Ct. 1346, 63 L. Ed. 2d 781 (1980), overruled on other grounds, Satterfield v. State, 248 Ga. 538, 285 S.E.2d 3 (1981); Thompson v. State, 263 Ga. 23, 426 S.E.2d 895 (1993), overruled on other grounds, McClellan v. State, 274 Ga. 819, 561 S.E.2d 82 (2002).
For arrest to terminate felony for purpose of felony-murder rule, perpetrator must be subjected to complete custody; perpetrator must acquiesce and submit to arrest; and perpetrator's surrender must be complete and continuous. Collier v. State, 244 Ga. 553, 261 S.E.2d 364 (1979), cert. denied, 445 U.S. 946, 100 S. Ct. 1346, 63 L. Ed. 2d 781 (1980), overruled on other grounds, Satterfield v. State, 248 Ga. 538, 285 S.E.2d 3 (1981); Thompson v. State, 263 Ga. 23, 426 S.E.2d 895 (1993), overruled on other grounds, McClellan v. State, 274 Ga. 819, 561 S.E.2d 82 (2002).
Deadly Weapons
That instrument is a weapon likely to produce death may be shown by circumstantial evidence.
- An instrument may be shown to be a weapon likely to produce death, by direct proof as to its character, by exhibition of it to jury, or by evidence as to nature of wound, or other evidence such as would warrant jury in finding the instrument was one calculated to produce death; the evidence need not be direct, but may be circumstantial. Kennedy v. State, 191 Ga. 22, 11 S.E.2d 179 (1940) (decided under former Code 1933, §§ 26-1003, 26-1004).
That weapon is one likely to produce death may be shown by nature of wound. Blakewood v. State, 196 Ga. 34, 25 S.E.2d 643 (1943) (decided under former Code 1933, §§ 26-1003, 26-1004).
An automobile is not per se a deadly weapon; when death results from its reckless or unlawful use, state relies upon implied malice in prosecution for murder in such instance. Huntsinger v. State, 200 Ga. 127, 36 S.E.2d 92 (1945) (decided under former Code 1933, §§ 26-1003, 26-1004).
Shoe or boot as weapon likely to produce death.
- Shoe or boot, when used to severely and brutally kick a helpless man, lying down, on his head, could be properly classified as a blunt instrument and a weapon likely to produce death. Goss v. State, 61 Ga. App. 621, 7 S.E.2d 87 (1940) (decided under former Code 1933, §§ 26-1003, 26-1004).
Whether limb of tree is a weapon likely to produce death is a jury question. Smithwick v. State, 199 Ga. 292, 34 S.E.2d 28 (1945) (decided under former Code 1933, §§ 26-1003, 26-1004).
Hands as deadly weapons.
- Evidence that the victim was hit so hard by the defendant from behind that the victim's arms flew up in the air as the victim fell, causing the victim's fatal vertebral artery hemorrhage, was sufficient to authorize a jury to find defendant used defendant's hands as deadly weapons to commit felony aggravated assault, and thus felony murder. Miller v. State, 275 Ga. 730, 571 S.E.2d 788 (2002), cert. denied, 538 U.S. 1004, 123 S. Ct. 1911, 155 L. Ed. 2d 835 (2003).
Automobile as deadly weapon.
- Defendant's possession of a stolen automobile was sufficient to support a felony murder conviction, as the vehicle's possession played a role in the defendant's decision to flee, and a decision to remain in the stolen car in order to flee created a foreseeable risk of death; further, the jury was authorized to infer from this conduct that the defendant had an intent to injure in attempting to elude the police. Turner v. State, 281 Ga. 487, 640 S.E.2d 25 (2007).
Lamps as deadly weapons.
- Evidence was sufficient to support convictions of felony murder and of aggravated assault when during an argument the defendant threw a glass-jug lamp, fatally injuring one victim and causing the other to lose consciousness and require seven stitches. Hester v. State, 283 Ga. 367, 659 S.E.2d 600 (2008).
When the defendant was accused of felony murder and aggravated assault by throwing a lamp at the victims, because the indictment alleged that the lamp was an object that when used offensively against a person was likely to and actually did result in serious bodily injury, an allegation that the lamp was a deadly weapon was not required. Furthermore, the indictment was not too vague as the defendant clearly was apprised that the defendant would have to defend against the allegation that the defendant struck one victim on and about the head with the lamp, and the defendant admitted to a law enforcement officer that the defendant had thrown the lamp at the other victim. Hester v. State, 283 Ga. 367, 659 S.E.2d 600 (2008).
Evidence of cause of death.
- Evidence authorized a jury to find that the victim died as a result of blows inflicted by the defendant because an emergency room physician testified that the victim was beaten with a blunt instrument, received multiple, and serious, head blows, and that the victim died from brain injuries when the victim was later removed from life support systems. Phillips v. State, 280 Ga. 728, 632 S.E.2d 131 (2006).
Jury Instructions
Court charging regarding both murder and voluntary manslaughter.
- If there is a doubt, however slight, as to whether offense is that of murder or voluntary manslaughter, it is the duty of the court to submit the law of both murder and manslaughter and let the jury determine the grade of the offense of the homicide. Thomas v. State, 47 Ga. App. 237, 170 S.E. 303 (1933) (decided under former Penal Code 1910, §§ 61, 62); Thomas v. State, 51 Ga. App. 455, 180 S.E. 760 (1935) (decided under former Code 1933, §§ 26-1003, 26-1004); Hayes v. State, 51 Ga. App. 462, 180 S.E. 762 (1935) (decided under former Code 1933, §§ 26-1003, 26-1004); Goldsmith v. State, 54 Ga. App. 268, 187 S.E. 694 (1936) (decided under former Code 1933, §§ 26-1003, 26-1004); Dickey v. State, 60 Ga. App. 199, 3 S.E.2d 238 (1939) (decided under former Code 1933, §§ 26-1003, 26-1004); North v. State, 69 Ga. App. 836, 26 S.E.2d 892 (1943) (decided under former Code 1933, §§ 26-1003, 26-1004); Harris v. State, 77 Ga. App. 842, 50 S.E.2d 152 (1948) (decided under former Code 1933, §§ 26-1003, 26-1004).
Taken as a whole, jury re-charge did not lead the jury to believe that passion and provocation were relevant only as to felony murder or permit the jury to convict the defendant of malice murder despite having found that the defendant killed the victim while acting in sudden passion resulting from serious provocation; in the initial charge the jury was informed that a finding of malice was necessary for a homicide to constitute murder, was given the definition of express malice, and was told malice could be implied if there was no considerable provocation. Williams v. State, 279 Ga. 154, 611 S.E.2d 19 (2005).
Since the defendant was convicted of malice murder, any error in charging the jury to consider voluntary manslaughter only after finding reasonable doubt as to the existence of malice murder was harmless. Williams v. State, 279 Ga. 154, 611 S.E.2d 19 (2005).
Jury was properly charged that it could not find the defendant guilty of felony murder if it concluded the underlying felony of aggravated assault was the result of passion and provocation, but would be authorized to find the defendant guilty of voluntary manslaughter. Williams v. State, 279 Ga. 154, 611 S.E.2d 19 (2005).
In a murder prosecution, a defendant was not entitled to an instruction on voluntary manslaughter because testimony that the defendant shot the victim because the defendant panicked and was frightened showed, at best, that the defendant was attempting to repel an attack, not that there was sufficient anger to invoke passion. Bell v. State, 280 Ga. 562, 629 S.E.2d 213 (2006).
Charge on manslaughter unnecessary where state's unrefuted evidence shows premeditation.
- Where state's evidence shows that homicide was premeditated murder, and defendant introduces no evidence, and there is nothing in defendant's statement that indicates in the slightest that the homicide was manslaughter, court does not err in failing to charge on law of manslaughter. Murray v. State, 214 Ga. 350, 104 S.E.2d 905 (1958) (decided under former Code 1933, §§ 26-1003, 26-1004).
Charge on transferred intent inappropriate.
- Because the charge on transferred intent was not adjusted to the evidence, it was error for the trial court to so instruct the jury, and trial counsel performed deficiently by failing to object to the giving of that charge and the prosecutor's closing argument addressing the inapplicable principles of transferred intent; there was no evidence that the defendant was intending to shoot any other person when the defendant shot the victim so as to bring the case within the typical "innocent bystander" scenario in which the doctrine of transferred intent was applied, but in light of the overwhelming evidence of the defendant's guilt, it was highly probable that the charge did not contribute to the verdict. Boatright v. State, 289 Ga. 597, 713 S.E.2d 829 (2011).
Instructing on logical order in which to consider offenses.
- Instructions were not subject to objection, where the trial court did not instruct the jury that it had to find the defendant not guilty of any particular offense prior to considering any lesser offense; rather, it simply gave the jury a logical order in which to consider the offenses. Zackery v. State, 257 Ga. 442, 360 S.E.2d 269 (1987).
"Shall be implied" language of instruction did not unconstitutionally shift burden of proof to the defendant, as the language instructed the jury that the jury must find malice if the state proved the predicate facts of no considerable provocation and an abandoned and malignant heart. Humphrey v. Boney, 785 F.2d 1495 (11th Cir. 1986).
Charge that malice is presumed from intentional killing and that it rests with defendant to show justification or excuse unless they appear from state's evidence is not unconstitutionally burden-shifting. Burger v. State, 238 Ga. 171, 231 S.E.2d 769 (1977).
Charge on malice need not be in exact language of section.
- When judge on trial of one charged with murder, undertakes to define that offense, and malice, as employed in definition of murder, it is better to charge in language of statute, but failure to use this identical language does not constitute prejudicial error, where no essential element is omitted from the definition, and nothing is added to impair meaning as expressed in the statute. Adams v. State, 188 Ga. 668, 4 S.E.2d 663 (1939) (decided under former Code 1933, §§ 26-1003, 26-1004).
Slight variation from language of section in charge on implied malice does not constitute error where section is substantially complied with. Shepherd v. State, 150 Ga. 799, 105 S.E. 485 (1920) (decided under former Penal Code 1910, §§ 61, 62).
Malaprop in jury instruction.
- Trial court's malaprop in instructing the jury that the jury was authorized to convict the defendant on malice murder based on malice or forethought, rather than malice aforethought, was a singular occurrence, and the jury was otherwise properly and accurately charged on malice murder; and the jury was instructed that the state was required to prove every material allegation of the indictment - which included the language "malice aforethought" - and every essential element of the offenses charged therein. Walker v. State, 308 Ga. 33, 838 S.E.2d 792 (2020).
No error in recharging jury.
- There was no error either in the jury recharge clarifying malice murder, or in the reception of the guilty verdicts; the actual guilty verdicts against both defendants were not received and published until after the jurors heard the recharge and then retired for further deliberations. Cox v. State, 279 Ga. 223, 610 S.E.2d 521 (2005).
Trial court did not err by defining "malice aforethought" in response to a request from the jury for a recharge because the instruction was based on the pattern charge and was legally correct; given the correct and detailed instructions contained in the trial court's original charge to the jury, it was unlikely that the jury was confused by the recharge, which clearly indicated that premeditation was not an element of the crime. Dukes v. State, 290 Ga. 486, 722 S.E.2d 701 (2012).
Denying request to recharge jury on affirmative defenses not reversible error.
- Because no abuse of discretion resulted from the trial court's order denying defense counsel's request that the court recharge the jury on the affirmative defenses of accident and reasonable discipline of a minor, but the court granted the jury's request for a recharge as to the offenses of malice murder and felony murder, the defendant's felony murder and cruelty to children convictions were affirmed. Johnson v. State, 281 Ga. 770, 642 S.E.2d 827 (2007).
Charge of mutual combat.
- Erroneous failure to charge on mutual combat is reversible error where verdict is for murder. Davis v. State, 76 Ga. App. 427, 46 S.E.2d 520 (1948) (decided under former Code 1933, §§ 26-1003, 26-1004).
When the defendant maintained that the trial court erred in failing to charge the law of mutual combat, but the evidence showed at most that the defendant and the victim pushed one another and "threw a few punches," and there was no evidence that they mutually agreed or intended to fight with deadly weapons, the requested charge was not warranted by the evidence and the trial court did not err in refusing to give the instruction. Martin v. State, 258 Ga. 300, 368 S.E.2d 515 (1988).
Trial court properly chose not to give a jury charge on mutual combat in the defendant's criminal trial, whereupon the defendant was convicted of felony murder, as there was no evidence that during the physical altercation between the defendant, the victim, and others, the victim was armed with a deadly weapon; in fact, the evidence allowed the jury to find that the victim was unarmed during the fight while the defendant was armed with a gun. Hudson v. State, 280 Ga. 123, 623 S.E.2d 497 (2005).
Trial counsel did not perform deficiently by failing to request a charge on mutual combat because there was no evidence of a mutual intention to fight; at trial, the defendant presented the defense of accident and asserted that the defendant lacked any intention to shoot the victim, but there was no evidence reflecting that the defendant and the victim mutually agreed to fight each other. Boatright v. State, 289 Ga. 597, 713 S.E.2d 829 (2011).
Motive as proper subject for attorneys' closing arguments.
- The motive for the killing, or lack thereof, is proper subject matter for the closing arguments of both the prosecution and the defense. Wade v. State, 258 Ga. 324, 368 S.E.2d 482 (1988), cert. denied, 502 U.S. 1060, 112 S. Ct. 941, 117 L. Ed. 2d 111 (1992).
Charge on intent in murder trial did not unconstitutionally shift the burden of proof. Parker v. State, 256 Ga. 363, 349 S.E.2d 379 (1986).
Instruction on voluntary manslaughter warranted.
- Although there was sufficient evidence to support a defendant's conviction for murder beyond a reasonable doubt with regard to the stabbing death of the victim, which the defendant claimed was in self-defense, the defendant's conviction was reversed as the trial court erred in failing to give a jury instruction on voluntary manslaughter because there was evidence that the defendant overreacted and was outnumbered by the victim and another and could have felt threatened. Webb v. State, 284 Ga. 122, 663 S.E.2d 690 (2008).
Instruction on voluntary manslaughter not warranted.
- Where defendant was convicted of malice murder, the trial court properly refused to charge the jury on voluntary manslaughter, as there was no evidence that defendant stabbed the victim as the result of passion arising from reasonable provocation. Bell v. State, 276 Ga. 206, 576 S.E.2d 876 (2003).
In a murder prosecution, the trial court properly refused to give jury instructions on voluntary manslaughter, involuntary manslaughter, pointing a pistol at another, and accident as: (1) no evidence of provocation was presented; (2) the victim faced a window through which the defendant pointed a pistol and reacted to the presence of a gun; (3) a demand from the defendant showed an apprehension of receiving a violent injury; and (4) the evidence showed that the victim was killed during the defendant's effort to rob the victim at gunpoint. Roberts v. State, 282 Ga. 548, 651 S.E.2d 689 (2007).
Because the evidence presented showed that the defendant acted in a rational and calculating fashion in retrieving a car jack, breaking out the exterior light to darken the scene, and then quietly snuck into and through the victim's house in search of the victim, and did not show that the defendant's actions were the result of a sudden, violent, and irresistible passion, the defendant was not entitled to a charge on voluntary manslaughter, and a malice murder conviction was upheld on appeal. Taylor v. State, 282 Ga. 502, 651 S.E.2d 715 (2007).
In a malice murder prosecution, as the evidence did not show the defendant was provoked seriously enough to cause a reasonable person to fatally stab the victim, the defendant was not entitled to a voluntary manslaughter instruction under O.C.G.A. § 16-5-2(a). Boyd v. State, 284 Ga. 46, 663 S.E.2d 218 (2008).
Trial court did not err by refusing to give the defendant's request for a jury instruction on voluntary manslaughter because the record failed to reveal any evidence that would support a voluntary manslaughter charge; the evidence and testimony at trial revealed that although a gun was in the victim's car at the time of the murder, the victim did not say or do anything before the defendant shot the victim, let alone do anything that would constitute the "serious provocation" necessary to warrant a charge on voluntary manslaughter. Lawrence v. State, 286 Ga. 533, 690 S.E.2d 801 (2010).
During the defendant's trial for murder, the trial court did not err by refusing the defendant's request to charge the jury on voluntary manslaughter because in the absence of any evidence of a romantic relationship between the defendant and the teenaged victim, there could be no serious provocation created by the victim's call to her ex-boyfriend that could have aroused passion in a reasonable person pursuant to O.C.G.A. § 16-5-2(a). Crawford v. State, 288 Ga. 425, 704 S.E.2d 772 (2011).
Trial court did not err by refusing to charge the jury on voluntary manslaughter because the defendant's testimony that the defendant was not upset but fired a gun out of fear, in self-defense, and in defense of the defendant's parent showed that the defendant did not shoot a child in the heat of passion, and the other evidence was not to the contrary; rather, the testimony of the neighbors, who were the child's parents and the only other trial witnesses present during the shooting demonstrated, at most, that the defendant could have opened fire in response to the neighbors' heated or angry statements, which, as a matter of law, could not constitute "serious provocation" within the meaning of O.C.G.A. § 16-5-2(a). Davidson v. State, 289 Ga. 194, 709 S.E.2d 814 (2011).
During the defendant's murder trial, the trial court did not err by denying the defendant's request to charge on the lesser included offense of voluntary manslaughter, O.C.G.A. § 16-5-2, since the defendant testified that the defendant fired a pistol because the defendant was "just scared," and acting out of fear was not the same as acting in the heat of a sudden irresistible passion. Funes v. State, 289 Ga. 793, 716 S.E.2d 183 (2011).
Trial court did not give the jury an incomplete charge regarding the lesser included offense of voluntary manslaughter because the instruction did not prevent the jury from fully considering voluntary manslaughter and was adequate to inform the jury that before the jury could convict defendant of malice or felony murder, the jury had to first consider whether there was sufficient evidence of passion or provocation to support a conviction for voluntary manslaughter. Kendrick v. State, 290 Ga. 873, 725 S.E.2d 296 (2012).
Instruction on involuntary manslaughter warranted.
- With regard to a defendant's conviction for the felony murder of the defendant's wife, with aggravated assault as the underlying felony, the trial court erred by refusing the defendant's requested charge on involuntary manslaughter with pointing a pistol at another as the predicate misdemeanor, which entitled the defendant to a new trial based on the defendant testifying that the shooting occurred inadvertently when, in the course of horseplay with the pistol, the defendant pulled the trigger while pointing the pistol at the victim's head, not knowing there was a round in the chamber. Manzano v. State, 282 Ga. 557, 651 S.E.2d 661 (2007).
Given evidence at trial that the defendant, age 15, was playing with a gun near the back of the defendant's father's head when the defendant shot the defendant's father, the trial court erred in refusing the defendant's request to charge on involuntary manslaughter as a lesser included offense of malice murder, not just as a lesser included offense of felony murder, and appellate counsel was ineffective in failing to make this argument. The "unlawful act" required for involuntary manslaughter could have been reckless conduct under O.C.G.A. § 16-5-60. Seabolt v. Norris, 298 Ga. 583, 783 S.E.2d 913 (2016).
Instruction on involuntary manslaughter not warranted.
- Because the state did not allege that the felony murder victim died as a result of non-felony conduct, but the victim's death occurred as a result of the defendant's commission of a felony in the course of fleeing and attempting to elude the police, an involuntary manslaughter instruction was not warranted. Turner v. State, 281 Ga. 487, 640 S.E.2d 25 (2007).
When evidence established either that defendant intentionally shot and killed the victim or that a pistol discharged accidentally and no offenses occurred, this showed either commission of felony murder and aggravated assault or commission of no offense, and the trial court did not err in refusing to give a lesser included offense charge on involuntary manslaughter based on reckless conduct. Lashley v. State, 283 Ga. 465, 660 S.E.2d 370 (2008).
When the defendant was charged with felony murder, with cruelty to a child in the first degree as the underlying felony, the trial court properly denied the defendant's request for a jury instruction on felony involuntary manslaughter under O.C.G.A. § 16-5-3(a) as a lesser included offense. Contrary to the defendant's argument, the state did not present any evidence that the child died as a result of lack of medical care; furthermore, because the defendant argued that it was the child's parent who shook the child and that the defendant only tried to revive the child, such an instruction was not necessary because the evidence showed either the charged crime or no crime. Bostic v. State, 284 Ga. 864, 672 S.E.2d 630 (2009).
Trial court did not err in refusing to instruct the jury on voluntary manslaughter as a lesser included crime of malice murder because a charge on voluntary manslaughter was precluded by the evidence when there was no evidence to illustrate the existence of provocation before the fatal shots were fired; the defendant assaulted the victim with a deadly weapon and then fired the fatal shots into the victim's back, and there was no evidence that the defendant had any type of relationship with the friend who was arguing with the victim that would explain an impassioned attack. Hicks v. State, 287 Ga. 260, 695 S.E.2d 195 (2010), overruled on other grounds by McClure v. State, 306 Ga. 856, 834 S.E.2d 96 (2019).
Trial court did not err by failing to give the defendant's requested charge on the lesser included offense of involuntary manslaughter, O.C.G.A. § 16-5-3, because the defendant's admitted act of purposefully putting a gun to the fearful victim's head and pulling the trigger constituted the felony offense of aggravated assault, O.C.G.A. § 16-5-21, not reckless conduct, O.C.G.A. § 16-5-60(b); the defendant's testimony that the victim began crying when the victim saw the gun provided evidence that the victim perceived the gun to be a loaded weapon that could be used to inflict a violent injury, which was a reasonable perception, and the jury's verdict of guilty on the felony murder charge established the existence of all the elements of the underlying felony offense of aggravated assault. Jones v. State, 289 Ga. 145, 710 S.E.2d 127 (2011).
Trial court did not err by denying the defendant's request to charge the jury on involuntary manslaughter as a lesser included offense of the felony murder charge because the defendant's admitted act of purposefully firing a gun at the victim constituted the felony offense of aggravated assault, not reckless conduct; the jury's verdict of guilty on the felony murder charge established the existence of all the elements of the underlying felony offense of aggravated assault. Kendrick v. State, 290 Ga. 873, 725 S.E.2d 296 (2012).
Charge on party to crime proper.
- During the defendant's trial for felony murder, the trial court did not err in giving a charge on party to a crime because the charge given was legally correct and was supported by evidence presented at trial; in addition to the evidence linking the defendant to the commission of the crimes for which the defendant was convicted, there was evidence from an expert firearms examiner concerning the amount of time it would take for one person to shoot and re-load the two-shot derringer believed to be the murder weapon in order to fire six shots into the two victims, there was evidence that a confidential informant had told authorities that two shooters killed the victims, and the defendant testified that a drug dealer knew about the drug transaction between the defendant and one of the victims, that the defendant had loaned the defendant's truck to the drug dealer and had sold the defendant's derringers to the drug dealer prior to the murder of the victims. Baptiste v. State, 288 Ga. 653, 706 S.E.2d 442 (2011).
When the defendant was convicted of murder, armed robbery, and related crimes in connection with the death of the victim, the defendant's counsel was not ineffective for failing to object to the trial court's jury instruction on parties to a crime, insofar as the indictment did not specifically charge the defendant as a party, because it was well-settled that the indictment need not specifically charge a criminal defendant as a party to the crime in order to permit a jury instruction on accomplice liability and authorize a conviction based thereon. Babbage v. State, 296 Ga. 364, 768 S.E.2d 461 (2015).
Failure to charge on implied malice is not harmful when the jury is instructed that the jury must find actual malice before finding defendant guilty of malice murder. Jackson v. State, 269 Ga. 494, 500 S.E.2d 902 (1998).
Instruction defining express and implied malice as requiring neither premeditation nor a preconceived intention to kill was a correct statement of the law. Wright v. State, 255 Ga. 109, 335 S.E.2d 857 (1985).
Presumption that killing was intentional and malicious.
- In prosecution for murder, trial court correctly charged that if state proved that defendant killed person named in indictment by use of a deadly weapon, the killing would be presumed to be intentional and malicious unless circumstances of alleviation, excuse, or justification appeared to satisfaction of jury. Felts v. State, 244 Ga. 503, 260 S.E.2d 887 (1979), aff'd, 632 F.2d 605 (5th Cir. 1980), cert. denied, 451 U.S. 1028, 101 S. Ct. 3019, 69 L. Ed. 2d 398 (1981), overruled on other grounds, Baker v. Montgomery, 811 F.2d 55 (11th Cir. 1987); but see Holloway v. McElroy, 474 F. Supp. 1363 (M.D. Ga. 1979), aff'd, 632 F.2d 605 (5th Cir. 1980), cert. denied, 451 U.S. 1028, 101 S. Ct. 3019, 69 L. Ed. 2d 398 (1981), overruled on other grounds, Baker v. Montgomery, 811 F.2d 55 (11th Cir. 1987).
As to a charge of malice murder, because the trial court erroneously gave the state's requested jury instruction that the law presumed an intention to kill and malice was to be implied from the use of a deadly weapon, the defendant's malice murder conviction had to be reversed. Further, the error could not be considered harmless as: (1) there were no witnesses to the shooting; (2) the victim was shot only once; (3) the defendant claimed to have fired the weapon during a struggle with the victim after the defendant's accomplices fled the scene; and (4) the fact that the fatal shot was fired from a distance of three or more feet was not inconsistent with the defendant's story of a struggle and did not overwhelmingly establish that the defendant acted with malice in shooting the victim. Warren v. State, 283 Ga. 42, 656 S.E.2d 803 (2008).
Constitutionality of presumptions of malice and intent.
- Charges in homicide prosecution that malice is presumed from intentional killing and that intent is presumed from use of a deadly weapon did not violate due process, because there is a rational connection between facts proved and facts presumed. Patterson v. State, 239 Ga. 409, 238 S.E.2d 2 (1977), aff'd, 632 F.2d 605 (5th Cir. 1980), cert. denied, 451 U.S. 1028, 101 S. Ct. 3019, 69 L. Ed. 2d 398 (1981), overruled on other grounds, Baker v. Montgomery, 811 F.2d 55 (11th Cir. 1987); but see Holloway v. McElroy, 474 F. Supp. 1363 (M.D. Ga. 1979), aff'd, 632 F.2d 605 (5th Cir. 1980), cert. denied, 451 U.S. 1028, 101 S. Ct. 3019, 69 L. Ed. 2d 398 (1981), overruled on other grounds, Baker v. Montgomery, 811 F.2d 55 (11th Cir. 1987).
Charge on assault with intent to murder when death not necessarily caused by intentional shooting.
- When one is charged with murder by shooting and evidence does not demand finding that victim died from such gunshot wounds and defendant admits shooting, a verdict of guilty of assault with intent to murder may be authorized and it is not error to charge the jury on such lesser crime. Kimbro v. State, 113 Ga. App. 314, 147 S.E.2d 876 (1966) (decided under former Code 1933, §§ 26-1003, 26-1004).
Jury instructions on presumption of intent did not shift burden.
- Jury charge that "a presumption is a conclusion which the law draws from given facts"; that presumptions are rebuttable; and that the state must prove every element of the crime, including intent, beyond a reasonable doubt as a whole did not impermissibly shift the burden of proof to the defendant. Roberson v. State, 253 Ga. 239, 319 S.E.2d 444 (1984).
Presumptions as to intent and malice are not unconstitutionally burden-shifting.
- It is not unconstitutionally burden-shifting to presume that intentional homicide is malicious until the contrary appears, nor to presume intent to kill from use of deadly weapon. Such charges to a jury lay no burden of proof on defendant, but merely require defendant in certain circumstances to go forward with evidence. Thomas v. State, 240 Ga. 454, 241 S.E.2d 204 (1978).
Instruction on presumption must note it is rebuttable.
- Court erred in charging the jury that, "If you find that a homicide is proved to have been committed in this case by the defendant, and with a weapon that you find was, in the manner in which it was used upon the occasion in question, a weapon likely to produce death, the law would presume malice and the intent to kill," without also informing the jury that the presumption of intent may be rebutted. Trenor v. State, 252 Ga. 264, 313 S.E.2d 482 (1984).
Instruction removing presumption of innocence.- Instruction which told the jury, at defendant's trial for felony-murder based upon the commission of armed robbery, that the acts of a person of sound mind and discretion are presumed to be the product of the person's will was reversible error, because it removed the presumption of innocence and relieved the state of the burden of proving beyond a reasonable doubt that defendant intentionally committed the felony of armed robbery by requiring the jury to presume that the defendant intended to perform defendant's actions. Hall v. Kelso, 892 F.2d 1541 (11th Cir. 1990).
Instruction on inferred intent and malice from proven circumstances.
- Trial court's jury instruction in a murder prosecution that intent may be inferred from proven circumstances or by the acts and conduct of the defendant or may be presumed when it would be the natural and necessary consequence of the particular acts did not impermissibly relieve the prosecution of the prosecution's burden of proving intent beyond a reasonable doubt or otherwise undermine the fact-finding responsibility of the jury. Lamb v. Jernigan, 683 F.2d 1332 (11th Cir. 1982), cert. denied, 460 U.S. 1024, 103 S. Ct. 1276, 75 L. Ed. 2d 496 (1983).
Instruction on the presumption of malice was not interpreted as burden-shifting. Jarrell v. Balkcom, 735 F.2d 1242 (11th Cir. 1984), cert. denied, 471 U.S. 1103, 105 S. Ct. 2331, 85 L. Ed. 2d 848 (1985).
Instruction on implying malice.
- Jury instruction in a murder prosecution that malice shall be implied where no considerable provocation appears and where all the circumstances of the killing show an abandoned and malignant heart could not, in view of the strong circumstantial evidence that preceded it, have been interpreted by the jury as changing the reasonable-doubt burden of proof they were initially told that the prosecution had to meet. Lamb v. Jernigan, 683 F.2d 1332 (11th Cir. 1982), cert. denied, 460 U.S. 1024, 103 S. Ct. 1276, 75 L. Ed. 2d 496 (1983).
Instruction that "malice shall be implied where no considerable provocation appears and where all of the circumstances of the killing show an abandoned and malignant heart" did not improperly relieve the state of its burden of proving malice. Walden v. State, 251 Ga. 505, 307 S.E.2d 474 (1983).
Trial court does not err in charging, relative to implied malice, the language of O.C.G.A. § 16-5-1. Mapp v. State, 258 Ga. 273, 368 S.E.2d 511 (1988).
When the defendant was charged with murder under O.C.G.A. § 16-5-1, the post-evidentiary charge, in which the jury was instructed that malice may be implied when no considerable provocation appears and when all the circumstances of the killing show an abandoned and malignant heart, being more favorable to appellant than the acceptable statutory charge, was not reversible error. Gambrel v. State, 260 Ga. 197, 391 S.E.2d 406 (1990).
Instruction stating "malice may be inferred" did not impermissibly shift burden of proof to the defendant. Adams v. State, 255 Ga. 356, 338 S.E.2d 860 (1986).
Instruction on inferring intent from use of deadly weapon.
- Although the trial court erred by instructing the jury that it could infer intent to kill from the use of a deadly weapon, the error was harmless because defendant was found guilty of felony murder rather than malice murder. Ross v. State, 276 Ga. 747, 583 S.E.2d 850 (2003).
Defendant's challenge to a jury instruction regarding inferring the intent to kill from the use of a deadly weapon failed; because felony murder did not require intent to kill (defendant only had to have intended to commit the underlying felony), any inference regarding the intent to kill would have had no bearing on the commission of felony murder. Brown v. State, 278 Ga. 544, 604 S.E.2d 503 (2004)(Unpublished).
In a trial on a charge of malice murder, while the trial court erred in charging the jury that it could infer the intent to kill if a person used a deadly weapon and caused the death of a human being, the error was harmless because there was overwhelming evidence of malice, and thus, it was highly probable that the improper charge did not contribute to the verdict. Davis v. State, 279 Ga. 11, 608 S.E.2d 628 (2005).
Harris v. State, 273 Ga. 608, 543 S.E.2d 716 (2001), which held that a jury charge on malice that allowed a jury to infer an intent to kill by a defendant's use of a deadly weapon, applied to the defendant's case, which was pending on direct review when Harris was decided; however, any error in giving the jury the erroneous charge was harmless in light of the overwhelming evidence of malice. Flanders v. State, 279 Ga. 35, 609 S.E.2d 346 (2005).
Instruction on the effect of a deadly weapon, which stated that malice and intent to kill would be presumed if the murder was committed with a "weapon likely to produce death," was upheld. Jarrell v. Balkcom, 735 F.2d 1242 (11th Cir. 1984), cert. denied, 471 U.S. 1103, 105 S. Ct. 2331, 85 L. Ed. 2d 848 (1985).
Instruction erroneously shifted burden to defendant.
- It was erroneous to charge in a homicide prosecution that the law presumes that every homicide is malicious until the contrary appears from the circumstances of alleviation, excuse, or justification and that it is incumbent upon the accused to make out such circumstances to the jury's satisfaction unless such circumstances appear from the evidence produced against the accused; but the error was harmless beyond a reasonable doubt where the evidence of guilt was so overwhelming that the error could not have contributed to the jury's decision to convict. Lamb v. Jernigan, 683 F.2d 1332 (11th Cir. 1982), cert. denied, 460 U.S. 1024, 103 S. Ct. 1276, 75 L. Ed. 2d 496 (1983).
Instructions on malice and flight not burden-shifting.
- See Ingram v. State, 253 Ga. 622, 323 S.E.2d 801 (1984), cert. denied, 473 U.S. 911, 105 S. Ct. 3538, 87 L. Ed. 2d 661 (1985).
Following jury instruction impermissibly shifted the burden on to the defendant to disprove malice: "When and if a killing is proved to your satisfaction to be the intentional act of the defendant, himself, the presumption of innocence with which he enters upon the trial is removed from him. And, the burden is upon him to justify or mitigate the homicide, unless the evidence introduced against him shows justification or mitigation." Dix v. Newsome, 584 F. Supp. 1052 (N.D. Ga. 1984).
Instruction which unconstitutionally shifted the burden of proof was harmless error where, even absent the erroneous charge, no rational jury would have drawn any other inferences from defendant's conduct but that defendant intended to kill the victim. Lancaster v. Newsome, 880 F.2d 362 (11th Cir. 1989).
"Use of deadly weapon" charge is error, whether or not it is accompanied by an instruction that the jury has discretion to make the inference. This new rule of criminal procedure will be applied to all cases in the pipeline. Harris v. State, 273 Ga. 608, 543 S.E.2d 716 (2001).
Jury instructions regarding intent impermissibly shifted burden of proof and rendered conviction invalid. Franklin v. Francis, 720 F.2d 1206 (11th Cir. 1983), aff'd, 471 U.S. 307, 105 S. Ct. 1965, 85 L. Ed. 2d 344 (1985).
Erroneous instruction harmless if intent not at issue.
- An instruction which could lead a reasonable juror to understand as creating a mandatory presumption of intent may nevertheless be found to be harmless if intent is not at issue in the case or is overwhelmingly proved. Burger v. Kemp, 785 F.2d 890 (11th Cir. 1986), aff'd, 483 U.S. 776, 107 S. Ct. 3114, 97 L. Ed. 2d 638 (1987).
Instruction shifting burden where defendant claims self-defense.
- An erroneous charge to the jury that shifted the burden of persuasion to defendant on the element of intent was harmless, where defendant relied on the defense of self-defense. White v. State, 255 Ga. 731, 342 S.E.2d 304 (1986).
Trial court erred in failing to charge a jury on the principles of retreat when self-defense was a defendant's sole defense, the prosecution placed the concept of retreat in issue during cross-examination of the defendant, and evidence of the defendant's guilt on charges that included aggravated assault was not overwhelming. Felder v. State, 291 Ga. App. 740, 662 S.E.2d 826 (2008).
Charge that when defendant admits killing defendant must show justification is not erroneous.
- On trial of one charged with murder, it is not error to charge jury that if the defendant admits the killing, the law places upon the defendant the burden to satisfy the jury that the defendant was justified under some rule of law, unless admissions, together with evidence in the case against the defendant, or statement of the defendant, show justification or mitigation. Gay v. State, 173 Ga. 793, 161 S.E. 603 (1931) (decided under former Penal Code 1910, §§ 61, 62).
When defendant admits homicide without stating excuse or justification.
- Charge on confessions is authorized when accused admits homicide of which accused is charged and in connection therewith states no facts or circumstances showing excuse or justification for killing; and this is true although, when referring on another occasion to the killing, the accused states facts or circumstances showing excuse or justification therefor. Weatherby v. State, 213 Ga. 188, 97 S.E.2d 698 (1957) (decided under former Code 1933, §§ 26-1003, 26-1004).
Effect of state's evidence showing mitigating circumstances, justification, or alleviation.
- When any of the state's evidence shows mitigating circumstances, justification, or alleviation, it is error to charge that malice will be presumed from commission of homicide with a deadly weapon, and that burden rests upon the accused to show justification or mitigation. Jordon v. State, 232 Ga. 749, 208 S.E.2d 840 (1974).
When the evidence as to provocation and self-defense is in dispute, it should be submitted to the jury to determine if the killing was with malice, express or implied. West v. State, 251 Ga. 458, 306 S.E.2d 909 (1983).
Erroneous instruction on implied malice.
- In prosecution for murder it was error to instruct that "implied malice is an intention to kill which is proven either by the act of the killing itself, the surrounding circumstances, or the absence of any provocation"; a reasonable juror could have construed the instruction as an irrebuttable direction to find intention to kill upon proof of either (1) absence of provocation or (2) the act of killing itself. Parks v. State, 254 Ga. 403, 330 S.E.2d 686 (1985).
Charge on felony murder under malice murder indictment is not error where warranted by evidence. Marable v. State, 154 Ga. App. 426, 268 S.E.2d 720 (1980).
Instructions on felony murder and aggravated assault moot in light of malice murder conviction.
- Any issue concerning the trial court's issuance of instructions to the jury on the offenses of felony murder and aggravated assault became moot when a defendant was convicted and sentenced on a charge of malice murder. Parker v. State, 282 Ga. 897, 655 S.E.2d 582 (2008).
Charge of felony-murder without defining elements of underlying felony is harmful error. Edwards v. State, 233 Ga. 625, 212 S.E.2d 802 (1975).
Instruction on nexus between felony and death.
- Trial court did not err in charging the jury on the nexus requirement between the felony and the death of the victim because the trial court gave the jurors the pattern charge on felony murder at least three times. Johnson v. State, 289 Ga. 650, 715 S.E.2d 99 (2011).
Application of forcible felony instruction.
- On appeal from a conviction for voluntary manslaughter as a lesser-included offense of malice murder, the appeals court found that no error or prejudice resulted from the trial court's denial of the defendant's request for an aggravated battery charge as a forcible felony in support of the defendant's justification claim, and affirmed the trial court's choice to charge on aggravated assault and rape as the defendant failed to present evidence of any reasonable belief that the use of force was necessary to prevent the commission of an aggravated battery. Wicker v. State, 285 Ga. App. 294, 645 S.E.2d 712 (2007).
Charge of self-defense and accident.
- Where the defendant based the defense upon a claim of justification, and the court charged the jury as to self defense and accident, the court's refusal to charge involuntary manslaughter was not error. Willis v. State, 258 Ga. 477, 371 S.E.2d 376 (1988).
Charge of accident not warranted.
- In a prosecution for felony murder and the predicate felonies of aggravated battery, O.C.G.A. § 16-5-24(a), and first-degree child cruelty, O.C.G.A. § 16-5-70, assuming arguendo that the evidence supported an instruction on accident, the trial court's failure to give that instruction was not reversible error as the jury's conclusion that the defendant acted with malice, which was supported by overwhelming evidence, necessarily meant that the jury would have rejected any accident defense. Sears v. State, 290 Ga. 1, 717 S.E.2d 453 (2011).
Instruction on alibi.
- Where the evidence in support of the defense of alibi does not show the impossibility of the defendant's presence at the scene of the crime at the time of its commission, the failure of the court to charge the law of alibi is not error. Hulett v. State, 262 Ga. 194, 415 S.E.2d 642 (1992).
Trial court did not sua sponte err in failing to charge jury on identity as: (1) there was Georgia law requiring a trial judge to warn the jury against the possible dangers of mistaken identification of an accused as the person committing a crime; and (2) such was not required after the jury had already been charged as to the presumption of innocence, reasonable doubt, burden of proof, credibility of witnesses, and impeachment of witnesses. Lee v. State, 281 Ga. 776, 642 S.E.2d 835 (2007).
Issuance of sequential jury charge in trial for malice, murder, felony murder, and aggravated assault.
- In a prosecution for malice murder, felony murder, and aggravated assault, although no error resulted from the trial court's issuance of a sequential jury charge, because the jury found in the defendant's favor on the defense of justification as to the malice murder count, the finding also applied to the felony murder charge. Thus, the trial court erred in finding the defendant guilty of both felony murder and the underlying felony of aggravated assault. Turner v. State, 283 Ga. 17, 655 S.E.2d 589 (2008).
Instructions on both murder and voluntary manslaughter should be given where warranted.
- On trial of murder case, if there is any evidence, however slight, as to whether offense is murder or voluntary manslaughter, instruction as to law of both offenses should be given to jury. Birdsong v. State, 140 Ga. App. 719, 231 S.E.2d 813 (1976); Raines v. State, 247 Ga. 504, 277 S.E.2d 47 (1981); Coleman v. State, 256 Ga. 306, 348 S.E.2d 632 (1986).
It is permissible for the court to instruct the jury that it might consider voluntary manslaughter if it did not believe that the defendant was guilty of malice murder and if it did not believe that defendant was guilty of felony murder. This is not a "sequential" charge of the type disallowed by the holding in Edge v. State, 261 Ga. 865(2), 414 S.E.2d 463 (1992). Shaw v. State, 263 Ga. 88, 428 S.E.2d 566 (1993).
Error in charge on presumed intent was harmless where defendant had pleaded self-defense.- Error, if any, in jury charge on presumed intent in trial for malice murder was harmless where defendant had pleaded self-defense at trial and had acknowledged that homicide was intentional. Holloway v. McElroy, 632 F.2d 605 (5th Cir. 1980).
Evidence of good character alone does not require charge on voluntary manslaughter in murder case, although good character may of itself constitute a defense in behalf of an accused so as to generate reasonable doubt of guilt. Swett v. State, 242 Ga. 228, 248 S.E.2d 629 (1978).
Self-defense instruction properly refused.
- When, in a trial for homicide, the record contained no evidence of a verbal threat made by the victim to the defendant, and there was testimony that the victim said he could "get out of the car and discuss this like a man," whereupon the victim exited his car and "reached for" the defendant, but after the victim saw the defendant's handgun, he re-entered his automobile, these acts, standing alone, did not constitute a sufficient threat to render pointing a loaded pistol at another a lawful act of self-defense. Rhodes v. State, 257 Ga. 368, 359 S.E.2d 670 (1987).
While the defendant admitted shooting the victim, the defendant, with the help of an expert witness, attempted to show that the defendant had shot the victim in order to release oneself and the defendant's family from a voodoo or "roots" spell the victim had cast over them for a long period of time, the trial court's refusal to charge on self-defense was proper. McDaniel v. State, 257 Ga. 345, 359 S.E.2d 642 (1987).
Because no construction of the evidence would support a finding that the defendant shot in self-defense pursuant to O.C.G.A. § 16-3-21(a), the trial court properly refused to charge on that issue; the defendant pointed to no evidence that the defendant entered a fracas between the victim and the victim's friend in defense of the friend, and the unarmed victim was shot three times in the back as the victim was attempting to flee after the defendant assaulted the victim with a firearm. Hicks v. State, 287 Ga. 260, 695 S.E.2d 195 (2010), overruled on other grounds by McClure v. State, 306 Ga. 856, 834 S.E.2d 96 (2019).
Trial court was authorized to instruct the jury pursuant to O.C.G.A. § 16-3-21(b)(2) that self-defense was inapplicable when the defendant was attempting to commit or was committing a felony because the defendant made an affirmative choice to engage in a dangerous and potentially violent criminal activity when the defendant participated in a drug transaction. Davis v. State, 290 Ga. 757, 725 S.E.2d 280 (2012).
Instruction on vehicular homicide.
- Trial court did not err in denying the defendant's request to instruct the jury on vehicular homicide as a lesser-included offense of felony murder because that lesser-included offense was not before the jury; before the case went to the jury, the trial court entered a directed verdict in the defendant's favor on the greater offense of felony murder and, thus, as the jury did not consider the greater offense, it could likewise not consider the lesser included offense for which the defendant had not been indicted. Johnson v. State, 289 Ga. 650, 715 S.E.2d 99 (2011).
Charge on accident not warranted.
- Where in a murder trial the defendant testified that defendant deliberately fired through a glass window pane at a large figure, a charge on accident was not authorized. Duke v. State, 256 Ga. 671, 352 S.E.2d 561 (1987).
Because the defendant admitted killing the defendant's spouse and witnesses testified that the spouse feared the defendant would kill the spouse if the spouse left, the evidence was sufficient to find the defendant guilty of malice murder; consequently, the trial court did not err in declining to give a charge on "accident." Mathis v. State, 279 Ga. 100, 610 S.E.2d 62 (2005).
Trial court did not err in rejecting the defendant's request to instruct the jury on the affirmative defense of accident, O.C.G.A. § 16-2-2, since although the defendant said that the defendant did not fire a gun intentionally, the defendant also testified that the defendant climbed into bed with the victim holding a loaded handgun with the defendant's finger on the trigger because the defendant wanted the victim to understand the seriousness of the defendant's concerns about infidelity; while the defendant initially denied pointing the gun at the victim and said the defendant kept the gun by the defendant's side, the defendant later admitted that the defendant did point the gun at the victim's head and that the gun went off when the victim smacked the gun away, and misuse of a firearm in the manner described by the defendant showed a degree of culpability that constituted criminal negligence. Mills v. State, 287 Ga. 828, 700 S.E.2d 544 (2010).
Reckless conduct instruction unwarranted in felony murder trial.
- Because the evidence in the defendant's felony murder trial, with aggravated assault as the underlying felony, showed without dispute that, although the defendant might not have intended to kill the victim, the defendant intentionally gunned the engine and then drove at the victim, who was acting aggressively and was armed with a knife, the trial judge did not err in denying the defendant's request for a reckless conduct instruction, but properly instructed the jury on the issue of justification. Berry v. State, 282 Ga. 376, 651 S.E.2d 1 (2007).
Trial court did not err by failing to include reckless conduct on the verdict form as a lesser-included offense of felony murder because a separate reckless conduct option was not required to be on the verdict form since there was no evidence of reckless conduct other than that which directly related to the death of the victim, thus, the reckless conduct charge had to be in the context of involuntary manslaughter. Banks v. State, 329 Ga. App. 174, 764 S.E.2d 187 (2014).
Instruction on mistake of fact not warranted.
- In a murder prosecution, the fact that the defendant testified to a belief that the defendant was required to defend self because the victim was about to drag the defendant down the street with a truck did not entitle the defendant to a mistake of fact defense under O.C.G.A. § 16-3-5, because the trial court gave a complete charge on the principles of law relating to the asserted defenses of justification and self-defense. Bell v. State, 280 Ga. 562, 629 S.E.2d 213 (2006).
"Flight" charge not warranted.
- When the state's evidence in a murder case was that prior to trial, while the defendant was free on bond and before a trial date had been set, the defendant married a member of the armed services and went with the spouse for a period of time to West Germany, but the defendant made no attempt to evade trial nor failed to appear at trial, and the undisputed evidence showed that the defendant fully cooperated with the authorities in their investigation of the victim's death, there was no evidence of "flight" from which an inference of a consciousness of guilt might be drawn, and a flight charge should not have been given. Duke v. State, 256 Ga. 671, 352 S.E.2d 561 (1987).
No harm from alleged error in instructions on murder where defendant convicted of manslaughter and thereby acquitted of murder. Chancellor v. State, 165 Ga. App. 365, 301 S.E.2d 294 (1983).
Charge on lesser offense of voluntary manslaughter warranted.
- See Wesley v. State, 166 Ga. App. 28, 303 S.E.2d 124 (1983).
Lack of proper jury instruction resulted in improper conviction.
- When an original indictment charged the defendant with murder and with possessing a firearm during the commission of that murder, but the jury found the defendant guilty of the lesser included offense of voluntary manslaughter, the defendant was improperly convicted of possession of a firearm during the commission of a crime as there was no instruction identifying voluntary manslaughter as a felony. Prather v. State, 259 Ga. App. 441, 576 S.E.2d 904 (2003).
Failure to charge on lesser included offense of voluntary manslaughter not error absent written request made at or before close of evidence in trial for malice murder. Howe v. State, 250 Ga. 811, 301 S.E.2d 280 (1983).
Court did not err in refusing to charge the jury on voluntary manslaughter when, even if the evidence had justified such a charge, absent a written request, it is not error to fail to so charge. Mosley v. State, 257 Ga. 382, 359 S.E.2d 653 (1987).
Voluntary manslaughter charge is not warranted when the only alleged evidence of provocation is the victim resisting an armed robbery. Nance v. State, 272 Ga. 217, 526 S.E.2d 560, cert. denied, 531 U.S. 950, 121 S. Ct. 353, 148 L. Ed. 2d 284 (2000).
In a murder prosecution, a jury charge on voluntary manslaughter, as a lesser-included offense, was unwarranted, as the evidence showed that the defendant had the chance to walk away from a heated argument with the victim, but instead calmly retrieved a knife, concealed it, and deliberately re-initiated the argument before plunging the knife into the victim's abdomen. Ballard v. State, 281 Ga. 232, 637 S.E.2d 401 (2006).
Trial court's refusal to charge the jury on voluntary manslaughter as a lesser included offense of murder was not erroneous when evidence of a sudden, violent, and irresistible passion resulting from serious provocation was lacking. Walker v. State, 281 Ga. 521, 640 S.E.2d 274 (2007).
Failure to charge on involuntary manslaughter as a lesser included offense of felony murder.
- Trial court did not err by refusing to charge the jury on involuntary manslaughter in the commission of a lawful act in an unlawful manner, O.C.G.A. § 16-5-3(b), as a lesser included offense of a felony murder charge based on the underlying offense of cruelty to children: the defendant had not requested such a charge in writing; moreover, the evidence, including the defendant's claim that the child's death was caused by an accidental fall while the defendant was playing with the child, did not warrant a charge on lawful act-unlawful manner involuntary manslaughter. Moore v. State, 283 Ga. 151, 656 S.E.2d 796 (2008).
Instruction on terroristic threats.
- In a trial for murder of her husband, defendant's requested jury charge regarding terroristic threats was properly refused, where none of the alleged threats by the victim were corroborated as contemplated by O.C.G.A. § 16-11-37. Chapman v. State, 258 Ga. 214, 367 S.E.2d 541 (1988).
Instruction on concealing a death.
- Concealing a death, O.C.G.A. § 16-10-31, and felony murder, O.C.G.A. § 16-5-1, have entirely different elements and require proof of totally different facts, and thus, the crime of concealing a death is not included, as a matter of fact or law, in felony murder during the commission of aggravated assault; a trial court's refusal to give a requested charge on concealing the death of another as a lesser included offense of felony murder was proper. Chapman v. State, 280 Ga. 560, 629 S.E.2d 220 (2006).
Absent request, judge need not charge regarding turbulent or violent character of the deceased. Fudge v. State, 190 Ga. 340, 9 S.E.2d 259 (1940) (decided under former Code 1933, §§ 26-1003, 26-1004).
Jury charge held harmless error.
- See Stephens v. Kemp, 846 F.2d 642 (11th Cir.), cert. denied, 488 U.S. 872, 109 S. Ct. 189, 102 L. Ed. 2d 158 (1988).
Although the trial court erred in charging the jury that if a person of sound mind and discretion intentionally and without justification used a deadly weapon or instrumentality in the manner in which such weapon or instrumentality was ordinarily used and thereby caused the death of a human being, the jury could infer malice and the intent to kill, it was highly probable that the erroneous instruction did not contribute to the verdict because there was evidence that the defendant participated in two meetings to plan the murder, instructed a codefendant on how to perform the murder, was present at the victim's home on the morning the victim was killed, and accepted payment for the murder. Owens v. State, 286 Ga. 821, 693 S.E.2d 490, cert. denied, 131 S. Ct. 156, 178 L. Ed. 2d 93 (2010), overruled on other grounds by Shelton v. Lee, 2016 Ga. LEXIS 452 (Ga. 2016).
Sequential charge held reversible error.
- Because trial court's recharge improperly emphasized malice murder and felony murder, preventing the jury from giving full consideration to voluntary manslaughter, this amounted to reversible error; thus, defendant's felony murder conviction had to be reversed. Lewis v. State, 283 Ga. 191, 657 S.E.2d 854 (2008).
Court did not err in failing to recharge jury as to mutual combat when the jury requested a recharge on murder and voluntary manslaughter, but there was no request as to a recharge on mutual combat. Welch v. State, 257 Ga. 197, 357 S.E.2d 70 (1987).
Erroneous failure to charge on mutual combat.
- When one is on trial for murder and a verdict for voluntary manslaughter is returned, it is not reversible error for the court to fail to charge law of mutual combat as applied to self-defense, since a verdict for voluntary manslaughter is an acquittal of murder. Davis v. State, 76 Ga. App. 427, 46 S.E.2d 520 (1948) (decided under former Code 1933, §§ 26-1003, 26-1004).
Erroneous charge on malice is harmless error where only issue is identity of accused.
- When the only issue was as to the identity of the accused, it appearing without dispute that the persons who killed the deceased were guilty of the offense of murder, it was not cause for a new trial that the trial judge did not define express malice in the exact language of the statute, in that the judge omitted the word "unlawfully" as contained therein. Peeples v. State, 178 Ga. 675, 173 S.E. 850 (1934) (decided under former 1933, Code §§ 26-1002, 26-1003, 26-1004).
Cruelty to children instruction not required in malice murder prosecution.
- In a prosecution for malice murder, the trial court did not err in refusing to give an instruction on cruelty to children as an included offense. Loren v. State, 268 Ga. 792, 493 S.E.2d 175 (1997).
Instruction on parental obligations under § 19-7-2. - In a prosecution for malice murder of defendant's minor child, the trial court did not err in refusing to give an instruction on the parental obligation to provide for the maintenance, protection, and education of a minor child under O.C.G.A. § 19-7-2. Loren v. State, 268 Ga. 792, 493 S.E.2d 175 (1997).
Instruction that "a reckless disregard for human life may be equivalent to the specific intent to kill" was not error. Walden v. State, 251 Ga. 505, 307 S.E.2d 474 (1983).
Charges in homicide prosecution that malice is presumed from intentional killing and that intent is presumed from use of deadly weapon are not unconstitutionally burden-shifting because the instruction does not shift any burden of proof or persuasion to defendant. Patterson v. State, 239 Ga. 409, 238 S.E.2d 2 (1977).
No error in failing to charge on mere presence.
- Evidence elicited at trial did not support a charge on mere presence because the defendant took an active role in the crime; the defendant drove the codefendants to the crime scene with the intent to rob, the defendant turned off the car's lights to assist in accosting the victims by surprise, the defendant drove the defendant's comrades away from the crime, and the defendant tried to get rid of the stolen car. Huckabee v. State, 287 Ga. 728, 699 S.E.2d 531 (2010).
In a murder prosecution, the trial court did not err when the court refused to give the defendant's requested charge on mere presence as there was no evidence that the defendant was merely present when the victim was shot; instead, the uncontroverted evidence showed that the defendant took an active part in the victim's death. Flowers v. State, 291 Ga. 122, 728 S.E.2d 196 (2012).
No error in failing to charge on accessory after the fact.
- Because the defendant was not charged with being an accessory after the fact, the trial court did not err when the court refused to give a charge on accessory after the fact. Huckabee v. State, 287 Ga. 728, 699 S.E.2d 531 (2010).
Instruction on inherent dangerousness not required.
- Trial court did not err in refusing to instruct the jury regarding inherent dangerousness because an instruction on inherent dangerousness was not required. Chance v. State, 291 Ga. 241, 728 S.E.2d 635 (2012).
Conflicts and credibility for jury's resolution.
- There was sufficient evidence to show that the defendant was guilty of malice murder; all the matters that the defendant cited simply presented questions regarding conflicts in the evidence or credibility, which were properly for the jury's resolution. Conway v. State, 281 Ga. 685, 642 S.E.2d 673 (2007).
Death Penalty
Punishment of death does not invariably violate the Constitution. Gregg v. Georgia, 428 U.S. 153, 96 S. Ct. 2909, 49 L. Ed. 2d 859 (1976).
Death penalty statutes not racially discriminatory.- Petitioner, a death row inmate, in a federal habeas petition challenged the imposition of the death penalty, arguing that the death penalty was being administered in a racially discriminatory manner, the argument failed because the statistical evidence was not so strong as to permit no inference other than that the results were the product of a racially discriminatory intent or purpose in that the death penalty was sought in 58 percent of the possible death penalty cases where the defendant was black but in only 40 percent of the cases where the defendant was white, and sought in only 25 percent of the cases where the victim was black and 54 percent of the cases where the victim was white. Jefferson v. Terry, 490 F. Supp. 2d 1261 (N.D. Ga. 2007), aff'd in part and rev'd in part, 570 F.3d 1283 (11th Cir. Ga. 2009).
Prerequisite to involving death penalty.
- Before convicted defendant may be sentenced to death, jury, or trial judge in cases tried without a jury, must find beyond a reasonable doubt one of ten aggravating circumstances specified in former Code 1933, § 27-2534.1. Gregg v. Georgia, 428 U.S. 153, 96 S. Ct. 2909, 49 L. Ed. 2d 859 (1976) (see O.C.G.A, § 17-10-30).
Procedural safeguards to prevent abuse of death penalty are constitutionally adequate.
- Imposition of death penalty on proof of felony murder does not lead to freakish and wanton executions because procedural safeguards were enacted in order to prevent such abuses and have been held to be constitutionally adequate in that regard. Collier v. State, 244 Ga. 553, 261 S.E.2d 364 (1979), cert. denied, 445 U.S. 946, 100 S. Ct. 1346, 63 L. Ed. 2d 781 (1980), overruled on other grounds, Satterfield v. State, 248 Ga. 538, 285 S.E.2d 3 (1981); Thompson v. State, 263 Ga. 23, 426 S.E.2d 895 (1993), overruled on other grounds, McClellan v. State, 274 Ga. 819, 561 S.E.2d 82 (2002).
Sentence not disproportionate where defendant active party to murder.- When the defendant was not only present at the scene of the murder and participated in the assault and rape of two girls, but also assisted the codefendant in stripping the girls and binding the girls' hands, then turned the defendant's car around in the road, presumably to facilitate a quick getaway, and stood by the codefendant in the road while the latter shot the victims, the jury reasonably found that the defendant was an active party in the murder, and the defendant's death sentence was not disproportionate to the crime. Johnson v. Kemp, 585 F. Supp. 1496 (S.D. Ga. 1984), rev'd on other grounds, 759 F.2d 1503 (11th Cir. 1985).
Defendant's death sentence for malice murder was affirmed as the sentence was neither excessive nor disproportionate to the penalties imposed in similar cases in Georgia as the defendant had murdered at least four people and had attempted or planned to murder several other people; the defendant's death sentence was not imposed under the influence of passion, prejudice, or any other arbitrary factor. Williams v. State, 281 Ga. 87, 635 S.E.2d 146 (2006), cert. denied, 553 U.S. 1004, 128 S. Ct. 2046, 170 L. Ed. 2d 793 (2008).
Presentence hearing not required where death penalty not sought.
- Since upon conviction for murder where death penalty is not sought, the only punishment to be lawfully imposed is that of life imprisonment, there is no necessity to conduct a presentence hearing on issue of punishment, as trial court possesses no discretion in such instance. Brown v. State, 246 Ga. 251, 271 S.E.2d 163 (1980).
Life sentence automatic if death penalty not sought.
- If defendant is found guilty of murder, defendant automatically receives a life sentence under the murder statute if death penalty had not been asked for by prosecution. Parks v. State, 230 Ga. 157, 195 S.E.2d 911 (1973).
Death sentence for 17-year-old defendant prohibited.
- Habeas court found as a matter of fact that the defendant was 17 years old at the time of the murders for which the defendant was convicted and vacated the defendant's death sentences in light of the holding of the U.S. Supreme Court in Roper v. Simmons, 543 U.S. 551, 125 S. Ct. 1183,161 L. Ed. 2d 1 (2005) (Eighth Amendment forbids imposition of death penalty on juvenile offenders under age 18), that death sentences for crimes committed by persons under the age of 18 violate the Constitution of the United States. Terry v. Jenkins, 280 Ga. 341, 627 S.E.2d 7 (2006).
Rule of lenity did not apply in criminal attempt of murder.
- Trial court did not err by not applying the rule of lenity in sentencing the defendant on criminal attempt to commit a felony, rather than on aggravated assault, because the statutory language and indictment showed that the two counts did not address the same criminal conduct as the criminal attempt (of murder) included the substantial step of pulling the trigger of the handgun aimed at the victim's head, which additional step was not required for the commission of aggravated assault. Gonzalez v. State, 352 Ga. App. 83, 833 S.E.2d 727 (2019).
Merger
Because the General Assembly did not make the amendments to O.C.G.A. § 16-5-1 retroactive, the defendant was properly sentenced in conformity with the law as it was when the crime was committed, which provided that the sentences for causing a death, including a death caused by cruelty to children in the second degree, were imprisonment for life (with the possibility of parole), imprisonment for life without parole, or death. Jones v. State, 302 Ga. 488, 807 S.E.2d 344 (2017).
Aggravated battery conviction merged into the malice murder conviction where the medical examiner's testimony established that the same act caused the aggravated battery and the victim's death; thus, the same evidence was used to prove both crimes. Fulton v. State, 278 Ga. 58, 597 S.E.2d 396 (2004).
No merger of aggravated assault and murder.
- A conviction for possession of a firearm during the commission of a felony (O.C.G.A. § 16-11-106) does not merge with a conviction for felony murder. Hawkins v. State, 262 Ga. 193, 415 S.E.2d 636 (1992).
A conviction for discharging a gun within 50 yards of a public highway (O.C.G.A. § 16-11-103) does not merge into a felony murder conviction. Hawkins v. State, 262 Ga. 193, 415 S.E.2d 636 (1992).
An aggravated assault conviction did not merge as a matter of fact with a murder conviction because the evidence presented at trial showed that the defendant inflicted a severe, but non-fatal, beating upon the victim that was separate and distinct from the choking and strangling which resulted in the victim's death. Starks v. State, 283 Ga. 164, 656 S.E.2d 518 (2008).
Lesser offense held not to merge with conviction.
- Because the jury could reasonably have concluded that the victim's first two injuries from two non-fatal shots resulted from a separate offense than the third, the earlier shots were sufficient to support the aggravated assault conviction, separate from the third and fatal shot, and there was no merger of the aggravated assault offense with a separate charge of malice murder. Parker v. State, 281 Ga. 490, 640 S.E.2d 44 (2007).
Although both malice murder and cruelty to children required a malicious intent, O.C.G.A. §§ 16-5-1(a) and16-5-70(b), the fact that such intent supported an element in each crime did not warrant merging of the sentences when other mutually exclusive elements of the crimes remained, and the other elements of the two offenses had to be compared; malice murder, but not cruelty to children, required proof that defendant caused the death of another human being, O.C.G.A. § 16-5-1(a), and cruelty to children, but not malice murder, required proof that the victim was a child under the age of 18 who was caused cruel or excessive physical or mental pain, O.C.G.A. § 16-5-70(b). Each crime required proof of at least one additional element which the other did not and the crimes of malice murder and cruelty to children were not so closely related that multiple convictions were prohibited under other provisions of O.C.G.A. §§ 16-1-6 and16-1-7; accordingly, even if the same conduct established the commission of both malice murder and cruelty to children, the two crimes did not merge. Linson v. State, 287 Ga. 881, 700 S.E.2d 394 (2010).
Merger of cruelty to children, aggravated assault, and murder.
- Because separate cruelty to children and aggravated assault counts were based upon acts committed by the defendant on the day preceding the death of the victim, neither of those convictions merged into the felony murder count also filed against the defendant and, accordingly, separate sentences for those crimes were authorized. Christian v. State, 281 Ga. 474, 640 S.E.2d 21 (2007).
Merger doctrine is rejected with respect to felony-murder rule in Georgia. Baker v. State, 236 Ga. 754, 225 S.E.2d 269 (1976).
Merger of manslaughter conviction.
- When the defendant was engaged in a shoot-out with another and accidentally struck and killed an innocent third party, the defendant's conviction for voluntary manslaughter could be merged into a felony-murder conviction. Foster v. State, 264 Ga. 369, 444 S.E.2d 296 (1994).
Defendant's conviction of voluntary manslaughter under O.C.G.A. § 16-5-2 was improper as the defendant was also convicted of felony murder under O.C.G.A. § 16-5-1(c) for the same transaction, and this would have subjected the defendant to multiple convictions and punishments for one crime, which would have placed the defendant in double jeopardy in violation of Ga. Const. 1983, Art. I, Sec. I, Para. XVIII and U.S. Const., amend. 5. Lawson v. State, 280 Ga. 881, 635 S.E.2d 134 (2006).
Trial court properly refused to accept the jury's initial verdict finding the defendant guilty of both felony murder and voluntary manslaughter because the same aggravated assault charge was both the predicate felony for the felony murder charge and the act underlying the voluntary manslaughter charge; therefore, the jury could not find the defendant guilty of both felony murder and voluntary manslaughter because, as charged, the crimes were subject to the modified merger rule, and the first verdicts were ambiguous. Ingram v. State, 290 Ga. 500, 722 S.E.2d 714 (2012).
Modified merger and double jeopardy.
- Modified merger rule, which speaks to the validity of a verdict on a charge of felony murder when the jury also finds the accused guilty of voluntary manslaughter, is effective at the time the jury renders the jury's verdict and is not destroyed by the granting of a motion for new trial on the voluntary manslaughter charge; likewise, the presence or absence of a separate charge of aggravated assault in the indictment has no effect on a court's application of the modified merger rule because while the existence of a separate aggravated assault charge must be carefully considered in applying the rule and making determinations as to proper sentencing, its existence does not render the rule inapplicable. Williams v. State, 288 Ga. 7, 700 S.E.2d 564 (2010).
Modified merger rule applies.
- When the evidence would support a conviction for either felony murder or voluntary manslaughter, and the jury finds the defendant guilty of each offense, the modified merger rule applies if the underlying felony is directed against the homicide victim and is not independent, but rather is an integral part of the killing; under such rule, the defendant cannot be convicted and sentenced for felony murder because the voluntary manslaughter verdict indicates that the underlying felony is mitigated by provocation and passion. Sanders v. State, 281 Ga. 36, 635 S.E.2d 772 (2006).
Merger of underlying felony.
- Trial court erred in imposing a 20 year sentence for the burglary conviction since this conviction, as the underlying felony in the felony murder conviction, should have merged with the felony murder conviction. Sumrall v. State, 264 Ga. 148, 442 S.E.2d 246, cert. denied, 513 U.S. 1020, 115 S. Ct. 585, 130 L. Ed. 2d 499 (1994).
Defendant's conviction for felony fleeing and attempting to elude was vacated as the offense served as the underlying felony for a felony murder conviction and merged with the conviction for felony murder. Ferguson v. State, 280 Ga. 893, 635 S.E.2d 144 (2006).
Judgment convicting a defendant of cruelty to a child in the first degree and the sentence entered thereon were vacated because the crime should have merged for sentencing purposes with the defendant's felony murder conviction based on the underlying felony of cruelty to a child in the second degree; the state agreed that the crimes merged in fact, and an examination of the evidence in the context of the trial court's instructions to the jury indicated that the judgment and sentence had to be vacated. White v. State, 281 Ga. 276, 637 S.E.2d 645 (2006).
Defendant was incorrectly sentenced on the aggravated assault charge which was the underlying offense for one of the felony murder charges. Kipp v. State, 294 Ga. 55, 751 S.E.2d 83 (2013).
Merger of the most severe.
- When it is unclear which of two or more felonies is the underlying felony for a felony murder conviction, the trial court must merge only one, the most severe with respect to potential punishment, such that a court's conviction for rape warranted reversal in light of the lesser co-felony of burglary. Thompson v. State, 263 Ga. 23, 426 S.E.2d 895 (1993), overruled on other grounds, McClellan v. State, 274 Ga. 819, 561 S.E.2d 82 (2002).
Merger of malice murder and aggravated assault.
- When defendant fired a gun at a person and the bullet grazed that person, went through a wall, and killed another person, the aggravated assault and malice murder convictions did not merge for sentencing purposes. George v. State, 276 Ga. 564, 580 S.E.2d 238 (2003).
Trial court erred in sentencing defendant for malice murder and aggravated assault as the victim's death was caused by a combination of blunt force trauma and strangulation and the aggravated assault merged into the malice murder as a matter of fact. Young v. State, 280 Ga. 65, 623 S.E.2d 491 (2005).
Because the evidence the state used to prove that the defendant committed aggravated assault was the same that it used to prove that defendant committed malice murder, the aggravated assault offense merged into the malice murder as a matter of fact. Thus, the separate judgment of conviction and sentence for aggravated assault had to be vacated. Ludy v. State, 283 Ga. 322, 658 S.E.2d 745 (2008).
Trial court did not err in failing to merge the aggravated assault for which the defendant was sentenced into defendant's malice murder conviction because the two crimes were not established by the same conduct; the defendant's conduct did not establish the commission of both the aggravated assault and the murder because the aggravated assault was established by evidence that the defendant and the codefendant beat and strangled the victim, whereas the murder was established by evidence that they killed the victim by stabbing the victim's body. Hall v. State, 286 Ga. 358, 687 S.E.2d 819 (2010).
Separate judgments of conviction and sentences for aggravated assault were vacated because the defendant was convicted of and sentenced for both the malice murders of the two victims and the aggravated assaults of those victims, and although there was no merger of those crimes as a matter of law, the record established that the aggravated assault convictions merged into the malice murder convictions as a matter of fact. Vergara v. State, 287 Ga. 194, 695 S.E.2d 215 (2010).
Defendant's conviction and sentence for aggravated assault was vacated and the case was remanded to the trial court for resentencing because the aggravated assault conviction merged into the defendant's malice murder conviction as a matter of fact even though there was no merger of those crimes as a matter of law. Sharpe v. State, 288 Ga. 565, 707 S.E.2d 338 (2011).
Defendant's conviction for aggravated assault should have been merged into a malice murder conviction pursuant to O.C.G.A. § 16-1-7(a)(1), based on the "required evidence" test, as the aggravated assault, as pled, did not require proof of a fact not required to have been proved in the malice murder. Culpepper v. State, 289 Ga. 736, 715 S.E.2d 155 (2011).
Defendant's conviction for aggravated assault of the victim merged into the conviction for malice murder of the victim because there was no evidence that the victim suffered a non-fatal injury prior to a deliberate interval in the attack and a fatal injury thereafter; the forensic pathologist who conducted the autopsy catalogued the victim's wounds as "chop injuries" that fractured the victim's skull and incapacitated the victim and were likely inflicted with a hatchet, punctures and superficial, deep, and very deep incisions and stab wounds that were inflicted by knives. Alvelo v. State, 290 Ga. 609, 724 S.E.2d 377 (2012).
Defendant's conviction on a second aggravated assault should have merged into the malice murder conviction because the victim sustained two shots to the arm and one fatal shot to the back of the head, and the evidence did not authorize the finding of an additional "deliberate interval" between the second shot to the arm and the shot to the head; both were inflicted in close succession as the defendant confronted the victim. Ortiz v. State, 291 Ga. 3, 727 S.E.2d 103 (2012).
Two felony murder counts were vacated by operation of law given the malice murder verdict because both the malice murder and the aggravated assault counts were premised on the act of shooting the victim with a firearm, the assault verdict merged as a matter of fact with the malice murder verdict for sentencing purposes. The burglary count, O.C.G.A. § 16-7-1, did not merge with malice murder, O.C.G.A. § 16-5-1, because each crime required proof of an element that the other did not. Favors v. State, 296 Ga. 842, 770 S.E.2d 851 (2015).
Felony murder conviction merged with malice murder conviction; however, there was no merger of cruelty to children into malice murder. When the defendant was convicted of malice murder, felony murder, and cruelty to children, and there was a single victim, it was error to sentence the defendant to multiple life terms on the malice murder and felony murder counts; because the victim's age was an element of the crime of cruelty to children that was not included in malice murder, the underlying cruelty to children conviction did not merge into malice murder as a matter of fact. Collum v. State, 281 Ga. 719, 642 S.E.2d 640 (2007).
Merger of lesser conviction into felony murder conviction.
- When false imprisonment conviction was the underlying felony for defendant's conviction of felony murder, the false imprisonment conviction merged into the felony murder conviction and was vacated on appeal. Johnson v. State, 254 Ga. 591, 331 S.E.2d 578 (1985).
When either of the defendant's two felony convictions could have served as the underlying felony for defendant's felony murder conviction, the initial felony, and not both felonies, was vacated as having merged with the felony murder conviction. Johnson v. State, 254 Ga. 591, 331 S.E.2d 578 (1985).
Because the evidence that the defendant assaulted the victim with a shotgun was used to prove both an aggravated assault and malice murder, the aggravated assault conviction merged by fact into the malice murder conviction. Nix v. State, 280 Ga. 141, 625 S.E.2d 746 (2006).
Aggravated battery merged with attempted murder.
- Trial court erred in failing to merge the offense of family violence aggravated battery with attempted murder, as both convictions were established by the same conduct. Hernandez v. State, 317 Ga. App. 845, 733 S.E.2d 30 (2012).
Most reasonable understanding of the conviction for lesser included offenses statute as applied to attempted murder and aggravated battery is that the aggravated battery merges into the greater offense of attempted murder when the crimes are predicated upon the same conduct. The Georgia Supreme Court overrules Hernandez v. State, 317 Ga. App. 845 (2012), Zamudio v. State, 332 Ga. App. 37 (2015), and Dobbs v. State, 2020 Ga. App. Lexis 279 (2020), to the extent that those cases hold otherwise. Priester v. State, Ga. , 845 S.E.2d 683 (2020).
No merger with weapons possession convictions.
- Defendant's conviction for possession of a knife during the commission of a felony did not merge into the defendant's two convictions for malice murder. Hooks v. State, 284 Ga. 531, 668 S.E.2d 718 (2008), overruled on other grounds, Williams v. State, 287 Ga. 192, 695 S.E.2d 244 (2010).
Merged counts for sentencing.
- Trial court had to vacate the defendant's conviction and sentence for armed robbery given that armed robbery was charged as the felony underlying the defendant's conviction for felony murder; a separate conviction and sentence for armed robbery was not authorized under such circumstances. Joyner v. State, 280 Ga. 37, 622 S.E.2d 319 (2005).
Merger with armed robbery count proper.
- When a defendant had been convicted of malice murder, felony murder, armed robbery, and other crimes, the trial court did not err by failing to merge the armed robbery counts into the felony murder count predicated on the underlying felony of armed robbery as the felony murder count was vacated by operation of O.C.G.A. § 16-1-7, and the defendant could be sentenced for the felony conviction so long as the felony was not included in the murder as a matter of fact or law; here, the armed robbery was not included in the malice murder charge as a matter of fact or law; evidence showing the defendant's intent to rob the victim was not used in proving the murder, and evidence that the defendant shot the victim was not used to prove the armed robbery. Davis v. State, 281 Ga. 871, 644 S.E.2d 113 (2007).
Merger with aggravated assault and not armed robbery.
- Although an armed robbery served as the predicate felony for one count of felony murder, there was a separate felony murder count predicated on aggravated assault; hence, when the jury found the defendant guilty of both counts, it was within the trial court's discretion to choose to merge the aggravated assault rather than the armed robbery into the felony murder count for which appellant was sentenced. Hill v. State, 281 Ga. 795, 642 S.E.2d 64 (2007).
Defendant's conviction for armed robbery was properly not merged into a malice murder conviction pursuant to O.C.G.A. § 16-1-7(a)(1), based on the "required evidence" test, as each offense required proof of an element that the other did not. Culpepper v. State, 289 Ga. 736, 715 S.E.2d 155 (2011).
Aggravated assault with intent to rob did not merge with felony murder.
- Because the crime of aggravated assault by shooting the victim with a gun was the underlying felony for the defendant's felony murder conviction, it should have merged for sentencing purposes; however, the conviction for aggravated assault with intent to rob, O.C.G.A. § 16-5-21(a)(1), did not merge into the felony murder conviction because the felony murder charge required proof that the defendant caused the victim's death and used a deadly weapon, O.C.G.A. §§ 16-5-1(c) and16-5-21(a)(2). Norris v. State, 302 Ga. 802, 809 S.E.2d 752 (2018).
Aggravated assault merged with malice murder.
- Convictions against the defendant for both malice murder and aggravated assault were error under O.C.G.A. § 16-1-7(a)(1) as the aggravated assault was included within the malice murder conviction under O.C.G.A. § 16-1-6(1) because the same conduct established the commission of both offenses. Bell v. State, 284 Ga. 790, 671 S.E.2d 815 (2009).
With regard to a defendant's malice murder conviction arising from the suffocation death of the defendant's newborn daughter, the defendant's conviction and sentence for aggravated assault was vacated inasmuch as the evidence showed that the aggravated assault merged as a matter of fact with the malice murder conviction. Wright v. State, 285 Ga. 428, 677 S.E.2d 82 (2009), cert. denied, 558 U.S. 1123, 130 S. Ct. 1076, 175 L. Ed. 2d 903 (2010).
Malice murder and aggravated assault merged as a matter of fact.
- Defendant's conviction and sentence for aggravated assault was vacated as the malice murder and the aggravated assault charges merged as a matter of fact because the same evidence to prove aggravated assault as indicted, stabbing the victim with a knife, was used to prove malice murder. Williams v. State, 279 Ga. 154, 611 S.E.2d 19 (2005).
Underlying conspiracy conviction merged into felony murder conviction.
- Defendant's separate conviction for conspiracy was vacated because the conspiracy conviction was the underlying felony that formed the basis for the defendant's felony murder conviction; because the underlying conspiracy merged into the felony murder conviction, the trial court erred in entering a separate judgment of conviction and sentence on the jury's verdict finding the defendant guilty of conspiracy. Higuera-Hernandez v. State, 289 Ga. 553, 714 S.E.2d 236 (2011).
Conviction for apprehending criminal and malice murder.
- Defendant's conviction for hindering the apprehension of a criminal in violation of O.C.G.A. § 16-10-50 had to be set aside because defendant could not be convicted for both malice murder and hindering the apprehension of a criminal, which was the equivalent of the common law crime of being an accessory after the fact; a party cannot be convicted both of being a principal to the crime and an accessory after the fact. Hampton v. State, 289 Ga. 621, 713 S.E.2d 851 (2011), overruled on other grounds, Nalls v. State, 815 S.E.2d 38, 2018 Ga. LEXIS 396 (Ga. 2018).
Merger of criminal gang activity convictions with felony murder conviction.
- After the three defendants were properly found guilty of felony murder predicated upon criminal gang activity involving a simple battery, the trial court erred when the court failed to merge the defendants' criminal gang activity involving an aggravated assault and criminal gang activity involving an aggravated battery convictions into the felony murder conviction because all of the unlawful participation in criminal gang activity of which the three defendants were found guilty occurred at the same location, occurred at the same time, and was directed against the same victim. Anthony v. State, 303 Ga. 399, 811 S.E.2d 399 (2018).
Sentence
Felony murder conviction vacated upon sentence for malice murder.
- Inasmuch as the defendant's felony murder conviction was vacated by operation of law upon entry of the sentence for malice murder, a conviction for felony murder, and the life imprisonment imposed for that conviction, had to be vacated. Sanders v. State, 283 Ga. 372, 659 S.E.2d 376 (2008).
Reconciling verdict.
- Verdicts finding defendant guilty of voluntary manslaughter as a lesser included offense of each count of felony murder, O.C.G.A. § 16-5-2, but not guilty of voluntary manslaughter as a lesser included offense of the alleged malice murder of the victim, were not repugnant and could be reconciled. Carter v. State, 298 Ga. 867, 785 S.E.2d 274 (2016), cert. denied, 137 S. Ct. 646, 196 L. Ed. 2d 542 (U.S. 2017).
Sentence of life in prison plus years consecutive for convictions of felony murder and armed robbery did not exceed the statutorily authorized maximum and did not amount to cruel and unusual punishment; the felony murder statute, O.C.G.A. § 16-5-1, authorized a sentence of life in prison on conviction for felony murder, and the armed robbery statute, O.C.G.A. § 16-8-41, authorized a sentence of death or imprisonment for life or by imprisonment for not less than 10 nor more than 20 years. The trial court sentenced the defendant to life in prison for the felony murder conviction plus two 20-year terms, running concurrent to each other but consecutive to the felony murder sentence, for the two convictions for armed robbery, and thus the statutory maximum was not exceeded. Washington v. State, 285 Ga. 541, 678 S.E.2d 900 (2009).
Trial court erred by sentencing defendant to separate life sentences for malice murder and felony murder since there was only one victim in the case. Accordingly, the defendant's conviction for felony murder was vacated by operation of law. Martinez v. State, 283 Ga. 122, 657 S.E.2d 199 (2008).
Life sentence for felony-murder conviction based upon "status" offense.
- See Hall v. State, 259 Ga. 243, 378 S.E.2d 860 (1989).
Vacation of felony murder charge required vacation of sentence.
- When the defendant was sentenced to life in prison for malice murder and a concurrent term of life in prison for felony murder, it was error to sentence the defendant for the felony murder inasmuch as it stood vacated by operation of law; accordingly, the judgment of conviction and sentence as to the felony murder count had to be vacated. Sampson v. State, 282 Ga. 82, 646 S.E.2d 60 (2007).
Failure to find juvenile irreparably corrupt or permanently incorrigible.
- Defendant's sentence of life without parole had to be vacated because the trial court did not make any sort of determination on the record that the defendant, who was 17 years old, was irreparably corrupt or permanently incorrigible. Veal v. State, 298 Ga. 691, 784 S.E.2d 403 (2016).
Juvenile defendant not entitled to jury deterimation of life without possibility of parole.
- In light of the court's previous holdings that O.C.G.A. § 16-5-1 comported with the Sixth Amendment and Apprendi, a Georgia defendant convicted of murder committed when the defendant was a juvenile does not have a federal constitutional right under the Sixth Amendment to have a jury make the determination required by the Eighth Amendment of whether the juvenile was irreparably corrupt or permanently incorrigible before the juvenile is sentenced to serve life without parole. Raines v. State, Ga. , 845 S.E.2d 613 (2020).
Sentence of youth not excessive.
- Appellant's sentence of two consecutive terms of life imprisonment plus 85 years was not cruel and unusual punishment, despite being 17 years old at the time of the crimes, because the trial court followed the guidance offered in case law and explicitly considered the appellant's relatively young age and explained that the court balanced the appellant's youth against the vicious, mean, violent behavior and the adult conduct engaged in, which included the murder of not one but two innocent bystanders. Jones v. State, 296 Ga. 663, 769 S.E.2d 901 (2015), overruled in part by Veal v. State, 298 Ga. 691, 784 S.E.2d 403 (2016).
Sentence not excessive.
- Sentence of life in prison plus years consecutive for convictions of felony murder and armed robbery did not exceed the statutorily authorized maximum; the felony murder statute, O.C.G.A. § 16-5-1, authorized a sentence of life in prison on conviction for felony murder, and the armed robbery statute, O.C.G.A. § 16-8-41, authorized a sentence of death or imprisonment for life or by imprisonment for not less than 10 nor more than 20 years. The trial court sentenced defendant to life in prison for the felony murder conviction plus two 20-year terms, running concurrent to each other but consecutive to the felony murder sentence, for the two convictions for armed robbery, and thus the statutory maximum was not exceeded. Washington v. State, 285 Ga. 541, 678 S.E.2d 900 (2009).
Death penalty for murder conviction.
- Trial court did not err in sentencing the defendant to death for murder because the death was not excessive or disproportionate punishment within the meaning of Georgia law and was not unconstitutional, and the evidence presented at the defendant's sentencing trial was clearly sufficient to authorize a rational trier of fact to find beyond a reasonable doubt the existence, pursuant to O.C.G.A. § 17-10-30(b)(2), of the statutory aggravating circumstances of kidnapping with bodily injury, that the murder was outrageously or wantonly vile, horrible, or inhuman, and that the defendant had a prior record of conviction for a capital felony; the defendant's crimes could be called "premeditated" because the defendant already knew what the defendant was going to do when the defendant took the victim away from home. Loyd v. State, 288 Ga. 481, 705 S.E.2d 616, cert. dismissed, 565 U.S. 971, 132 S. Ct. 474, 181 L. Ed. 2d 309 (U.S. 2011).
Life without parole sentence.
- Defendant's sentence of life without parole did not amount to cruel and unusual punishment. Foster v. State, 294 Ga. 383, 754 S.E.2d 33 (2014).
Defendant's age at sentencing did not make sentence excessive.
- Fact that the defendant was 22 years old at the time the life sentence was imposed did not render the defendant's life sentence cruel and unusual punishment. Jessie v. State, 294 Ga. 375, 754 S.E.2d 46 (2014).
Double life sentence erroneous.
- Because sufficient evidence supported convictions for murder and possession of a knife during the commission of a crime, and the state met its burden in establishing an adequate chain of custody, two life sentences for the murder of one victim was improper, as the conviction for felony murder was simply surplusage; thus, the separate life sentence on the alternative felony murder count had to be vacated. Paschal v. State, 280 Ga. 430, 628 S.E.2d 586 (2006).
Triple life sentence improper.
- While the defendant's act of crashing into the victim's car, and killing the victim, while leading police on a high-speed chase through a residential neighborhood, supported a felony murder conviction, because there was only one victim, the defendant could only be convicted of one count of felony murder, and not three; hence, upon the state's concession, imposition of three life sentences was vacated, and the matter was remanded for resentencing. Turner v. State, 281 Ga. 487, 640 S.E.2d 25 (2007).
Consecutive sentences for two counts of malice murder proper.
- As a defendant was charged with the malice murder of two victims in different counts and was found guilty on each count, the defendant was properly sentenced separately on each count to run consecutively because the killing of different persons constituted separate crimes. Hooks v. State, 284 Ga. 531, 668 S.E.2d 718 (2008), overruled on other grounds, Williams v. State, 287 Ga. 192, 695 S.E.2d 244 (2010).
Life without parole could not be imposed upon conviction of malice murder.
- Because O.C.G.A. § 17-10-7(c) expressly excluded capital felonies from the statute's coverage, and malice murder was a capital felony, a sentence of life imprisonment without parole could not be imposed upon a malice murder conviction. Miller v. State, 283 Ga. 412, 658 S.E.2d 765 (2008).
Although the prosecutor and the trial court during the plea hearing erroneously told the defendant that the defendant would be subject to probation, the written sentence signed by the judge and the defendant and filed with the clerk showed that the trial court imposed a sentence of life with parole, not probation. Bell v. State, 294 Ga. 5, 749 S.E.2d 672 (2013).
Two life sentences for murder of single victim.
- Defendant's separate life sentence on an alternative felony murder count was vacated because the defendant was sentenced to life sentences for both malice and felony murder in the death of one victim. Newsome v. State, 288 Ga. 647, 706 S.E.2d 436 (2011).
One life sentence for each malice murder count.
- Defendant's three additional life sentences for felony murder were illegal and could not stand because the trial court erred in failing to sentence the defendant only on the two malice murder counts; the convictions for felony murder were simply surplusage, which should properly have been disposed of by the trial court's sentence of only one life sentence for each of the malice murder counts. Brown v. State, 289 Ga. 259, 710 S.E.2d 751, cert. denied, 132 S. Ct. 524, 181 L. Ed. 2d 368 (2011).
A life without parole sentence is permitted only in "exceptional circumstances," for the rare juvenile offender who exhibits such irretrievable depravity that rehabilitation is impossible; for those rarest of juvenile offenders whose crimes reflect permanent incorrigibility; for those rare children whose crimes reflect irreparable corruption - and not for the vast majority of juvenile offenders; life without parole sentences may be constitutionally imposed only on the worst-of-the-worst juvenile murderers, much like the Supreme Court has long directed that the death penalty may be imposed only on the worst-of-the-worst adult murderers. To the extent the decisions in Jones v. State, 296 Ga. 663 (2015) and Bun v. Stat., 296 Ga. 549 (2015) suggested otherwise, they are hereby disapproved. Veal v. State, 298 Ga. 691, 784 S.E.2d 403 (2016).
Because the state did not seek the death penalty, and the malice murder took place after April 29, 2009, the trial court was authorized to sentence the defendant to life without the possibility of parole for malice murder and was not required to recite that the court considered aggravating or mitigating circumstances in doing so. Parks v. State, 305 Ga. 712, 827 S.E.2d 669 (2019).
Sentence for felony murder and felony criminal attempt to possess cocaine.
- Separate judgment of conviction and sentence for criminal attempt to possess cocaine was vacated because after the jury found the defendant guilty of felony murder while in the commission of the felony of criminal attempt to possess cocaine, and also of the felony of criminal attempt to possess cocaine, the defendant was sentenced on each charge, but the defendant could not be sentenced on both felony murder and the underlying felony when found guilty of both. Sapp v. State, 290 Ga. 247, 719 S.E.2d 434 (2011).
Sentence for felony murder and involuntary manslaughter prohibited.
- Because the prohibition against double jeopardy does not permit a defendant to be punished on multiple murder counts for a single homicide, it was error for the trial court to sentence the defendant for involuntary manslaughter in light of the conviction for felony murder as there was only one homicide. Kipp v. State, 294 Ga. 55, 751 S.E.2d 83 (2013).
Sentence of life in prison without parole did not require jury determination.
- Because O.C.G.A. § 16-5-1 was amended to add life imprisonment without the possibility of parole as an authorized punishment for murder without regard to whether the state seeks the death penalty, life without parole fell within the statutory range, and counsel was not ineffective for failing to object to the defendant's sentence despite the absence of any jury determination that such punishment was appropriate. Babbage v. State, 296 Ga. 364, 768 S.E.2d 461 (2015).
Life sentence with possibility of parole for murder upheld.
- In the defendant's trial for murder, the trial court properly exercised the court's discretion to sentence the defendant to life in prison with the possibility of parole under O.C.G.A. §§ 16-5-1(e)(1),17-9-2, and17-10-7(a), rather than life without the possibility of parole, because parole did not extend the duration of the sentence. Blackwell v. State, 302 Ga. 820, 809 S.E.2d 727 (2018).
Application
1. In General
Election between felony and malice murder.
- It was not error for the trial court to refuse to require the state to elect between prosecuting defendant for malice murder or felony murder, where the trial court's charge to the jury made clear the fact that while the state was seeking a murder conviction under alternate theories of malice murder and felony murder, the defendant could be convicted of only one count of murder. Baty v. State, 257 Ga. 371, 359 S.E.2d 655 (1987).
Effect of indictment alleging both malice murder and felony murder on guilty verdict.
- When indictment alleged that the defendant committed murder "with malice aforethought . . . by means of arson," the count in effect alleged both malice murder and felony murder, rendering the jury's verdict of "guilty of Count 1 - murder" ambiguous and requiring the verdict to be construed as one for felony murder. Walker v. State, 254 Ga. 149, 327 S.E.2d 475, cert. denied, 474 U.S. 865, 106 S. Ct. 185, 88 L. Ed. 2d 154 (1985).
Intentional killing of mere trespasser with a deadly weapon is generally murder and not manslaughter. Hayes v. State, 58 Ga. 35 (1877) (decided under former Code 1873, §§ 4321, 4322).
Killing officer while the officer is legally arresting defendant in a legal manner constitutes murder. Brooks v. State, 114 Ga. 6, 39 S.E. 877 (1901) (decided under former Penal Code 1895, §§ 61, 62); Harper v. State, 129 Ga. 770, 59 S.E. 792 (1907) (decided under former Penal Code 1895, §§ 61, 62); Johnson v. State, 130 Ga. 27, 60 S.E. 160 (1908) (decided under former Penal Code 1895, §§ 61, 62).
Slaying of officer to avoid what defendant believes is a lawful arrest.
- Slaying of officer to avoid being taken into custody, while having reasonable grounds of belief that person is an arresting officer, and that the officer's object is to make a lawful arrest for a felony, constitutes murder. If homicide is committed without reasonable cause to know the officer's official character or purpose and without malice, it is manslaughter. Morton v. State, 190 Ga. 792, 10 S.E.2d 836 (1940) (decided under former Code 1933, §§ 26-1003, 26-1004).
When infliction of unlawful injury shall be considered proximate cause of death.
- An unlawful injury considered to be the efficient, proximate cause of death whenever it shall be made to appear either that: (1) the injury itself constituted the sole proximate cause of death; that (2) the injury directly and materially contributed to the subsequently accruing immediate cause of death; or that (3) the injury materially accelerated death, although proximately occasioned by a preexisting cause. Ward v. State, 238 Ga. 367, 233 S.E.2d 175 (1977).
When one inflicts an unlawful injury, such injury is the proximate cause of death if it directly and materially contributed to happening of subsequently accruing immediate cause of death. Larkin v. State, 247 Ga. 586, 278 S.E.2d 365 (1981).
Defendant was properly convicted of malice murder and other charges after the defendant shot an automatic weapon at two deputies who appeared at the defendant's house to serve the defendant with an arrest warrant, thus killing one deputy and injuring the other. Al-Amin v. State, 278 Ga. 74, 597 S.E.2d 332, cert. denied, 543 U.S. 992, 125 S. Ct. 509, 160 L. Ed. 2d 380 (2004), overruled on other grounds by State v. Lane, 2020 Ga. LEXIS 98 (Ga. 2020).
Circumstantial evidence.
- In prosecution for murder, cause of death may be shown by circumstantial evidence. McAllister v. State, 246 Ga. 246, 271 S.E.2d 159 (1980).
Corpus delicti and cause of death may be proved by circumstantial evidence. West v. State, 251 Ga. 458, 306 S.E.2d 909 (1983).
Despite the defendant's contention that the circumstantial evidence presented by the state was insufficient, both malice murder and kidnapping by bodily injury convictions were upheld on appeal as: (1) the plain error rule did not apply to the identification evidence admitted via the defendant's aggravated assault and armed robbery victim, and evidence of the gun used in that case was relevant in the instant prosecution because it connected the defendant to the identification documents presented to police in close proximity to the victim's body; (2) a due process claim regarding the admission of a purportedly impermissibly suggestive pre-trial identification, followed by an in-court identification, was waived due to failure to object at trial; and (3) trial counsel was not ineffective by failing to seek suppression of the identification evidence or attack the reliability of the evidence. Brooks v. State, 281 Ga. 514, 640 S.E.2d 280 (2007).
Evidence, although circumstantial, was sufficient for a rational trier of fact to reject the defense theory that the victim's death was a suicide and to find the defendant guilty of malice murder beyond a reasonable doubt; the circumstantial evidence was substantial, including not only the nature of the victim's gunshot wound, but also the defendant's motive to harm the victim, and the defendant's prolonged cover-up and conflicting accounts of the victim's death. Walden v. State, 289 Ga. 845, 717 S.E.2d 159 (2011).
Although circumstantial, the evidence was sufficient to convict the defendant of murder, armed robbery, and related crimes in connection with the death of the victim because the defendant was identified by a witness as the person the witness saw coming upstairs from the victim's apartment just before the witness discovered the crimes; the defendant's fingerprints were found on the car used in the crimes; and the defendant's own statements, both via text message and in person, corroborated the defendant's participation in the murder and robbery. Babbage v. State, 296 Ga. 364, 768 S.E.2d 461 (2015).
Expert testimony on shell casing.
- Expert testimony that a shell casing at the crime scene came from a pistol found in the defendant's apartment, along with two witnesses' identifications of the defendant, and expert testimony that a bullet extracted from a victim's head possibly came from the defendant's pistol, although it was too damaged to say with complete certainty, sufficiently supported the defendant's convictions for murder, armed robbery, and possession of a firearm during the commission of a felony. Escobar v. State, 279 Ga. 727, 620 S.E.2d 812 (2005).
Expert's testimony on knife injuries.
- Evidence in support of the state's theory that the defendant killed the victim in an unprovoked aggravated assault, based on expert testimony that the victim died from a deliberate and forceful strike with a knife, and evidence that discounted any possible accident or lack of intent, was sufficient to support the defendant's conviction for felony murder during the commission of an aggravated assault. Nichols v. State, 281 Ga. 483, 640 S.E.2d 40 (2007).
Pre-autopsy photographs of victim admissible.
- In a trial for malice murder it was not error to admit in evidence photographs of the victim's body prior to autopsy and of the crime scene which, though gruesome, were relevant and material to show the location of the wounds and to depict the crime scene, including the location of the victim. Sanders v. State, 257 Ga. 239, 357 S.E.2d 66 (1987).
Pre-autopsy photographs which demonstrate the location and nature of the wounds are relevant to the issue of death, and may be introduced in evidence even though the photographs are duplicative of expert testimony relating to the cause of death. Baty v. State, 257 Ga. 371, 359 S.E.2d 655 (1987).
When proof of armed robbery is essential to the conviction for felony murder, the armed robbery is a lesser included offense in the felony murder. Sanborn v. State, 251 Ga. 169, 304 S.E.2d 377 (1983).
Crimes of voluntary manslaughter and malice murder require identical causation in that both sections speak of causing the death of another human being. Holloway v. McElroy, 632 F.2d 605 (5th Cir. 1980), cert. denied, 451 U.S. 1028, 101 S. Ct. 3019, 69 L. Ed. 2d 398 (1981).
Distinction between crimes of voluntary manslaughter and malice murder is that latter crime requires either express or implied malice, while voluntary manslaughter requires that killer has acted solely from sudden, violent, and irresistible passion resulting from serious provocation sufficient to excite such passion in a reasonable person. Holloway v. McElroy, 632 F.2d 605 (5th Cir. 1980), cert. denied, 451 U.S. 1028, 101 S. Ct. 3019, 69 L. Ed. 2d 398 (1981).
To reduce homicide from murder to voluntary manslaughter, as it relates to doctrine of mutual combat, it should affirmatively appear that at time of homicide both parties were in position and manifested intention to fight; mere threats on part of one party at time of fatal shot by the other will not suffice. Cornelious v. State, 193 Ga. 25, 17 S.E.2d 156 (1941) (decided under former Code 1933, §§ 26-1003, 26-1004).
To reduce homicide from murder to voluntary manslaughter, on theory of mutual combat, it should affirmatively appear that at time of homicide both parties were in position and manifested an intention to fight. Cone v. State, 193 Ga. 420, 18 S.E.2d 850 (1942) (decided under former Code 1933, §§ 26-1003, 26-1004).
Killing another with malice pursuant to mutual combat constitutes murder.
- Although there may be mutual intention and agreement to fight, if one of disputants kills the other with malice, it is murder, since in such case killing would not be result of that sudden and violent heat of passion which by reason of its irresistibility would constitute voluntary manslaughter. Rivers v. State, 193 Ga. 133, 17 S.E.2d 726 (1941) (decided under former Code 1933, §§ 26-1003, 26-1004).
Confession of mentally retarded defendant.- Introduction of the confession of a mentally retarded defendant who had not knowingly and intelligently waived the defendant's Miranda rights was harmless error as to the defendant's conviction but not as to defendant's death sentence. Smith v. Zant, 887 F.2d 1407 (11th Cir. 1989).
Former Code 1933, § 26-3201, together with substantive offense of murder, creates crime of "conspiracy to commit murder." Orkin v. State, 236 Ga. 176, 223 S.E.2d 61 (1976) (see O.C.G.A. § 16-4-8).
When armed robbery is lesser included offense of malice murder, see Hoerner v. State, 246 Ga. 374, 271 S.E.2d 458 (1980).
State does not have a reckless homicide statute; the state has only voluntary and involuntary manslaughter statutes which create degrees of homicide less than murder. A history of punishing recklessly caused homicide as murder simply has nothing to do with the deficiencies in the felony-murder scheme because it provides no category of homicide less culpable than murder. Malone v. State, 238 Ga. 251, 232 S.E.2d 907 (1977).
Homicide during attempted robbery caused by unintentional discharge of gun.
- When it is shown by the evidence, and admitted in defendant's statement, that homicide occurred by discharge of gun held by accused and used in attempt to rob deceased, even if discharge of gun was unintentional, the offense is murder; and in no view of such facts does it involve homicide by accident, or involuntary manslaughter. Ford v. State, 202 Ga. 599, 44 S.E.2d 263 (1947) (decided under former Code 1933, §§ 26-1003, 26-1004).
Murder which is probable consequence of conspiracy is imputable.
- When several persons conspire to rob a merchant in the merchant's store, and one of the conspirators remains in an automobile, in order that the others may speedily escape, while others in furtherance of common design to rob, kill the merchant intended to be robbed, such killing is the probable consequence of the unlawful design to rob, and all the conspirators are guilty of murder, including the one in the automobile. Jenkins v. State, 190 Ga. 556, 9 S.E.2d 909 (1940) (decided under former Code 1933, §§ 26-1003, 26-1004).
When two people conspire to commit the crime of robbery and in furtherance of the common design, both being present and participating in the commission of a robbery, one of them shoots and kills the person robbed, such killing is the probable consequence of the unlawful design to rob, and both are guilty of murder. Simmons v. State, 181 Ga. 761, 184 S.E. 291 (1936) (decided under former Code 1933, §§ 26-1003, 26-1004).
Murder which is incidental probable consequence of armed robbery is imputable.
- It is not necessary that crime of murder should be part of original design; it is enough if it is an incidental probable consequence of execution of conspirators design, and should appear at the moment to one of the participants to be expedient for the common purpose. Intent of actual slayer is imputable to coconspirators. Burke v. State, 234 Ga. 512, 216 S.E.2d 812 (1975).
Foreseeable consequence of drug trafficking conspiracy.
- Jury authorized to find that victim's murder was probable and foreseeable consequence of underlying conspiracy to traffic in illegal drugs. Huffman v. State, 257 Ga. 390, 359 S.E.2d 910 (1987).
Gun involved in drug possession and intent to distribute meant felony murder.
- Evidence was sufficient to convict the defendant of felony murder because the defendant was guilty of the predicate felony of possession with intent to distribute cocaine; the defendant possessed a gun while dealing drugs; the defendant handed the gun to another individual while the defendant searched for the missing drugs; it was not unpredictable that the victim tried to disarm the other individual and was shot to death during the struggle; and the victim's violent death was a direct and foreseeable consequence of the felony the defendant committed as the fatal shooting occurred as the defendant possessed crack cocaine with intent to distribute and wanted to possess again the cocaine that the defendant believed the victim had stolen. Hood v. State, 303 Ga. 420, 811 S.E.2d 392 (2018).
Co-builder of bomb guilty of felony-murder for builder's death.
- Where defendant and deceased had acquired or constructed an explosive device and were going to detonate that device for the purpose of destroying public property in the course of which the device exploded killing deceased, the defendant was guilty of felony murder under O.C.G.A. § 16-5-1. Scott v. State, 252 Ga. 251, 313 S.E.2d 87 (1984).
Officer's negligence in making arrest is immaterial to defendant's guilt or innocence.
- When defense counsel in murder trial asked about training procedures on proper method of arresting a subject who is deemed armed and dangerous, the trial court properly prohibited this line of questioning in guilt-innocence phase on grounds that negligence of officer in making arrest is not material to the guilt or innocence of the defendant. Collier v. State, 244 Ga. 553, 261 S.E.2d 364 (1979), cert. denied, 445 U.S. 946, 100 S. Ct. 1346, 63 L. Ed. 2d 781 (1980), overruled on other grounds, Satterfield v. State, 248 Ga. 538, 285 S.E.2d 3 (1981); Thompson v. State, 263 Ga. 23, 426 S.E.2d 895 (1993), overruled on other grounds, McClellan v. State, 274 Ga. 819, 561 S.E.2d 82 (2002).
Homicide resulting solely from resentment of provoking threats.
- Provocation by threats will in no case be sufficient to free defendant from crime of murder, or reduce homicide from murder to manslaughter, when killing is done solely for purpose of resenting provocation thus given. Moore v. State, 228 Ga. 662, 187 S.E.2d 277 (1972).
Evidence of acts carrying forward plan which included murder as supporting inference of malice.
- Even if the defendant did not specifically state that the defendant intended to kill the murder victim, the fact that the defendant stated that the defendant had participated in first entry of victim's home as part of plan which included murder, and later, on same day, returned to the victim's house and killed the victim can readily be seen as carrying forward this intent at least to the extent of exhibiting an "abandoned and malignant heart"; similarly, the fact that the defendant carried a deadly weapon for specific, acknowledged purpose of meeting opposition can support inference of malice. Blake v. Zant, 513 F. Supp. 772 (S.D. Ga. 1981), rev'd on other grounds sub nom. Burger v. Zant, 718 F.2d 979 (11th Cir. 1983), vacated on other grounds sub nom. Burger v. Zant, 467 U.S. 1212, 104 S. Ct. 2652, 81 L. Ed. 2d 360 (1984), cert. denied, 474 U.S. 998, 106 S. Ct. 374, 88 L. Ed. 2d 367 (1985).
When act of victim in avoiding felonious assault causes victim's death, offense is murder.
- When one commits a felonious assault upon another and the act of the other in avoidance of such felonious assault results in that person's death, the offense is murder, whether or not the act of avoidance was that of a reasonably prudent person under the circumstances. Patterson v. State, 181 Ga. 698, 184 S.E. 309 (1936) (decided under former Code 1933, §§ 26-1003, 26-1004).
For defendant's advances leading to victim's fatal jump from car to render defendant guilty of murder, it must appear that reaction of deceased was: (1) in avoidance of a violent bodily injury, or in apprehension of immediate violent bodily injury; (2) if in apprehension of immediate bodily injury, it must have been well grounded; (3) steps of avoidance must be such as a reasonably prudent person might take under the circumstances; and (4) result must have been natural and probable consequence of the improper conduct. Patterson v. State, 181 Ga. 698, 184 S.E. 309 (1936) (decided under former Code 1933, §§ 26-1003, 26-1004).
Self-defense based on battered woman syndrome.
- In a trial for murder of her husband, a defendant claiming self-defense based on the battered woman syndrome may, by her own testimony, coupled with that of an expert, make the prima facie showing required for the admission of the victim's general character for violence. Chapman v. State, 258 Ga. 214, 367 S.E.2d 541 (1988).
Felony murder conviction held reasonable despite accident contention.
- Evidence that defendant had cocked a gun and pointed it at her husband's head in order to scare him, and that the gun discharged when the victim struck it with his arm, was sufficient to authorize a conviction for felony-murder and the defense of "accident" was inapplicable. Stiles v. State, 264 Ga. App. 446, 448 S.E.2d 172 (1994).
Evidence of murdering parents.
- Evidence adduced at trial was sufficient to authorize a rational trier of fact to find the defendant guilty beyond a reasonable doubt of murder because: (1) the state introduced testimony that the defendant had said the defendant hated the defendant's parents and wanted to kill them; (2) a witness gave the police a statement to the effect that the defendant deliberately killed the victim, one of the defendant's parents, but refused to testify at trial on the crucial points; and (3) blood spatter evidence and other physical evidence suggested the blows to the victim were struck on the porch, not inside as the defendant claimed. Fincher v. State, 276 Ga. 480, 578 S.E.2d 102 (2003).
Denial of defendant's motions for directed verdict of acquittal not error when there was evidence from which the jury could determine that defendant, while acting in the heat of passion, shot and killed a woman. Chancellor v. State, 165 Ga. App. 365, 301 S.E.2d 294 (1983).
Medical examiner unable to pinpoint asphyxiation method.
- Although the medical examiner was unable to explain the precise mechanism by which the adult victim was asphyxiated, the state nevertheless offered evidence sufficient to prove that the defendant was the cause of asphyxiation and that the defendant caused the adult victim's death unlawfully and with malice, which was enough to sustain the conviction for the murder of the adult victim. Walker v. State, 296 Ga. 161, 766 S.E.2d 28 (2014).
Testimony of medical examiner.
- Medical examiner should not have been permitted to testify as to the examiner's conclusion or opinion of the manner of death since the examiner's investigation did not lead to that conclusion, the examiner's expertise as a forensic pathologist was not needed or used in reaching that conclusion, and the factors which led the medical examiner to the examiner's conclusion that the victim's death was a homicide are factors well within the knowledge and understanding of the jury. Maxwell v. State, 262 Ga. 73, 414 S.E.2d 470 (1992), overruled on other grounds, Wall v. State, 269 Ga. 506, 500 S.E.2d 904 (1998), overruled on other grounds, Smith v. State, 270 Ga. 123, 508 S.E.2d 173 (1998).
Medical testimony consistent with murder conviction.
- See Hampton v. State, 250 Ga. 805, 301 S.E.2d 274 (1983).
Defendant's admission sufficient.
- Defendant's recorded admission to a co-worker that the defendant killed the victim with the assistance of a codefendant was sufficient to support convictions for murder and aggravated assault. Williams v. State, 280 Ga. 539, 630 S.E.2d 410 (2006).
Link between tattoos and murder not established.
- In a malice murder prosecution, the defendant did not show that it was error to grant the state's motion in limine regarding the exclusion of evidence of the victim's tattoos as the defendant failed to establish a link between the tattoos and the murder. Marshall v. State, 285 Ga. 351, 676 S.E.2d 201 (2009).
Evidence sufficient for murder conviction.
- See Board of Comm'rs v. Welch, 253 Ga. 682, 324 S.E.2d 178 (1985); Houston v. State, 253 Ga. 696, 324 S.E.2d 183 (1985); Moore v. State, 254 Ga. 525, 330 S.E.2d 717 (1985); Davis v. State, 255 Ga. 588, 340 S.E.2d 862, cert. denied, 479 U.S. 871, 107 S. Ct. 243, 93 L. Ed. 2d 168 (1986); Smith v. State, 255 Ga. 654, 341 S.E.2d 5 (1986); Johnson v. State, 255 Ga. 552, 341 S.E.2d 220 (1986); Lewis v. State, 255 Ga. 681, 341 S.E.2d 434 (1986); Black v. State, 255 Ga. 668, 341 S.E.2d 436 (1986); Smith v. State, 255 Ga. 685, 341 S.E.2d 451 (1986); Byrd v. State, 255 Ga. 674, 341 S.E.2d 453 (1986); Cunningham v. State, 255 Ga. 727, 342 S.E.2d 299 (1986); White v. State, 255 Ga. 731, 342 S.E.2d 304 (1986); Scott v. State, 255 Ga. 701, 342 S.E.2d 310 (1986); Johnson v. State, 255 Ga. 703, 342 S.E.2d 312 (1986); Kitchens v. State, 256 Ga. 1, 342 S.E.2d 320 (1986); Gilstrap v. State, 256 Ga. 20, 342 S.E.2d 667 (1986); Chastain v. State, 255 Ga. 723, 342 S.E.2d 678 (1986); Evans v. State, 256 Ga. 10, 342 S.E.2d 684 (1986); Hooten v. State, 256 Ga. 31, 343 S.E.2d 481 (1986); Clenney v. State, 256 Ga. 123, 344 S.E.2d 216 (1986); Edison v. State, 256 Ga. 67, 344 S.E.2d 231 (1986); Cochran v. State, 256 Ga. 113, 344 S.E.2d 402 (1986); Boddie v. State, 256 Ga. 84, 344 S.E.2d 643 (1986); Rogers v. State, 256 Ga. 139, 344 S.E.2d 644 (1986); Brantley v. State, 256 Ga. 136, 345 S.E.2d 329 (1986); Bryant v. State, 256 Ga. 273, 347 S.E.2d 567 (1986); Appleby v. State, 256 Ga. 304, 348 S.E.2d 630 (1986); Noggle v. State, 256 Ga. 383, 349 S.E.2d 175 (1986); Thornton v. State, 256 Ga. 333, 349 S.E.2d 186 (1986); Ford v. State, 256 Ga. 375, 349 S.E.2d 361 (1986); Parker v. State, 256 Ga. 363, 349 S.E.2d 379 (1986); Raven v. State, 256 Ga. 366, 349 S.E.2d 383 (1986); Barnes v. State, 256 Ga. 370, 349 S.E.2d 387 (1986); Wansley v. State, 256 Ga. 624, 352 S.E.2d 368 (1987); Dixon v. State, 256 Ga. 658, 352 S.E.2d 572 (1987); Walter v. State, 256 Ga. 666, 352 S.E.2d 570 (1987); Arthur v. State, 256 Ga. 738, 353 S.E.2d 331 (1987); Patterson v. State, 256 Ga. 740, 353 S.E.2d 338 (1987); Westbrook v. State, 256 Ga. 776, 353 S.E.2d 504 (1987); Quick v. State, 256 Ga. 780, 353 S.E.2d 497 (1987); Clay v. State, 256 Ga. 797, 353 S.E.2d 517 (1987); Hendrick v. State, 257 Ga. 17, 354 S.E.2d 433 (1987); Byrd v. State, 257 Ga. 36, 354 S.E.2d 428 (1987); Booker v. State, 257 Ga. 37, 354 S.E.2d 425 (1987); Slaughter v. State, 257 Ga. 104, 355 S.E.2d 660 (1987), overruled on other grounds, Woodard v. State, 269 Ga. 317, 496 S.E.2d 896 (1998); Wilcox v. Ford, 813 F.2d 1140 (11th Cir.), cert. denied, 484 U.S. 925, 108 S. Ct. 287, 98 L. Ed. 2d 247 (1987); McMillan v. State, 257 Ga. 173, 356 S.E.2d 866 (1987); Williams v. State, 257 Ga. 186, 356 S.E.2d 872 (1987); Welch v. State, 257 Ga. 197, 357 S.E.2d 70 (1987); Strickland v. State, 257 Ga. 230, 357 S.E.2d 85 (1987); Bowens v. State, 257 Ga. 347, 359 S.E.2d 636 (1987) (judgment reversed for error in instructions); McDaniel v. State, 257 Ga. 345, 359 S.E.2d 642 (1987); Mosley v. State, 257 Ga. 382, 359 S.E.2d 653 (1987); Thompson v. State, 257 Ga. 386, 359 S.E.2d 664 (1987), overruled on other grounds, McClellan v. State, 274 Ga. 819, 561 S.E.2d 82 (2002); Rhodes v. State, 257 Ga. 368, 359 S.E.2d 670 (1987); Harris v. State, 257 Ga. 385, 359 S.E.2d 675 (1987); Carter v. State, 257 Ga. 510, 361 S.E.2d 175 (1987); Chapman v. State, 258 Ga. 214, 367 S.E.2d 541 (1988); Pace v. State, 258 Ga. 225, 367 S.E.2d 827 (1988); Phillips v. State, 258 Ga. 228, 368 S.E.2d 91 (1988); Langley v. State, 258 Ga. 251, 368 S.E.2d 316 (1988); Wade v. State, 258 Ga. 324, 368 S.E.2d 482 (1988), cert. denied, 502 U.S. 1060, 112 S. Ct. 941, 117 L. Ed. 2d 111 (1992); Patillo v. State, 258 Ga. 255, 368 S.E.2d 493, cert. denied, 488 U.S. 948, 109 S. Ct. 378, 102 L. Ed. 2d 367 (1988); Conley v. State, 258 Ga. 339, 368 S.E.2d 502 (1988); Savage v. Flagler Co., 258 Ga. 335, 368 S.E.2d 504 (1988); Mapp v. State, 258 Ga. 273, 368 S.E.2d 511 (1988); Williams v. State, 258 Ga. 281, 368 S.E.2d 742 (1988); Cash v. State, 258 Ga. 460, 368 S.E.2d 756 (1988); Jackson v. State, 258 Ga. 322, 368 S.E.2d 771 (1988); Kinsman v. State, 259 Ga. 89, 376 S.E.2d 845, cert. denied, 493 U.S. 874, 110 S. Ct. 210, 107 L. Ed. 2d 163 (1989); Jewell v. State, 261 Ga. 861, 413 S.E.2d 201 (1992); Brown v. State, 264 Ga. 48, 441 S.E.2d 235 (1994); Palmore v. State, 264 Ga. 108, 441 S.E.2d 405 (1994); Combs v. State, 268 Ga. 398, 500 S.E.2d 328 (1997); Ford v. State, 269 Ga. 139, 498 S.E.2d 58 (1998); Putman v. Turpin, 53 F. Supp. 2d 1285 (M.D. Ga. 1999); Jenkins v. Byrd, 103 F. Supp. 2d 1350 (S.D. Ga. 2000); Chinn v. State, 276 Ga. 387, 578 S.E.2d 856 (2003); Hill v. State, 276 Ga. 220, 576 S.E.2d 886 (2003); Sellers v. State, 277 Ga. 172, 587 S.E.2d 35 (2003); Herring v. State, 277 Ga. 317, 588 S.E.2d 711 (2003); Hewitt v. State, 277 Ga. 327, 588 S.E.2d 722 (2003); Williams v. State, 284 Ga. 849, 672 S.E.2d 619 (2009); Moore v. State, 288 Ga. 187, 702 S.E.2d 176 (2010).
Debating whose turn it is to kill someone.
- Defendant was properly convicted of felony murder after the codefendant shot and killed the victim because defendant held the victim at gunpoint, threatened to kill the victim, and debated with the codefendant about whose turn it was to kill someone. Strozier v. State, 277 Ga. 78, 586 S.E.2d 309 (2003).
Witness's testimony supported murder conviction.
- Evidence of a witness's testimony that the witness heard defendant and the victim arguing in a hallway of a rooming house and then heard a gunshot and found the victim's body in the hallway, along with testimony that a gun, which an expert testified was the murder weapon, was found under a carpet in defendant's room was sufficient to support the defendant's conviction. Jones v. State, 277 Ga. 36, 586 S.E.2d 224 (2003).
Death of victim months after sufficient for murder conviction.
- Since the trial court record reflected that defendant and another person demanded that a hotel guest give them the guest's wallet, and upon the guest's resistance and attempt to run the guest was shot, which ultimately resulted in the death of the guest from complications four months later, and further, when the other man had been positively identified and in turn testified that defendant had pulled the trigger, defendant's convictions for felony murder and murder in violation of O.C.G.A. § 16-5-1 were sufficiently supported by the evidence. Woodard v. State, 277 Ga. 49, 586 S.E.2d 330 (2003).
Evidence that defendant was involved in killing the victim, including evidence that defendant shot the victim in the chest and helped load the victim, still alive, into a car for transportation to another location where another man shot the victim to death was sufficient to support defendant's conviction for murder. Conaway v. State, 277 Ga. 422, 589 S.E.2d 108 (2003).
Evidence that the defendant was lying with someone on a couch at the apartment of the love interest of the defendant's sibling, that the defendant started telling people on the day the victim disappeared that the defendant had killed a young person and put the person's body in a closet in an apartment, and that a witness saw the dead person in the apartment and reported the death to police meant that the evidence was legally sufficient to support the defendant's conviction. Cain v. State, 277 Ga. 309, 588 S.E.2d 707 (2003), overruled on other grounds by Dickens v. State, 280 Ga. 320, 627 S.E.2d. 587 (2006).
After the defendant admitted that the defendant and the victim smoked crack cocaine, that the defendant bit the victim, tied the victim's wrists to the victim's ankles, stuffed a pillowcase in the victim's mouth, and left the victim in the bathtub, and that the victim was "near out of air," the evidence was sufficient to enable the jury to find the defendant guilty beyond a reasonable doubt of malice murder. Pittman v. State, 277 Ga. 475, 592 S.E.2d 72 (2004).
Malice murder conviction was upheld as evidence provided through the testimony of the medical examiner, the defendant's admissions and confession, and seized items resulting from the execution of a search warrant at the defendant's home were all sufficient to authorize a rational trier of fact to find the defendant guilty; further, the defendant made a voluntary waiver of the defendant's right to a jury trial, and an alleged error regarding the admission of expert testimony by a witness for the state was unpreserved for appellate review. Brown v. State, 277 Ga. 573, 592 S.E.2d 666 (2004).
Voluntary and willing participation in crimes as coconspirator.
- Evidence of the defendant's voluntary and willing participation in the crimes, through providing the use of the defendant's car to transport the other three named in the indictment to and from the scene and waiting in the vehicle while two of them committed aggravated assault, burglary, murder, and aggravated robbery, supported the defendant's convictions for those offenses as a co-conspirator. Silvers v. State, 278 Ga. 45, 597 S.E.2d 373 (2004).
Given the defendant's testimony that: (1) the defendant went to the victim's apartment to sell the victim cocaine; (2) after the defendant put the cocaine on the kitchen counter, the victim pulled out a gun and shot the defendant in the arm; (3) the defendant charged the victim to disarm the victim; (4) the defendant tried to push the victim on a sofa and the gun went off; and (5) the defendant did not intentionally pull the trigger and the shooting was an accident, but the contradictory testimony of several police officers that the victim's apartment showed no signs of a struggle, and having reviewed the evidence in the light most favorable to the verdict, a rational trier of fact could have found the defendant guilty of murder beyond a reasonable doubt. Dyer v. State, 278 Ga. 656, 604 S.E.2d 756 (2004), cert. denied, 546 U.S. 845, 126 S. Ct. 95, 163 L. Ed. 2d 111 (2005).
Evidence was sufficient to support malice murder conviction because: (1) the defendant and the victim were seen together the night before the victim's partially clothed, bloody body was found in a dumpster; (2) the victim was stabbed 20 to 30 times and hit in the head with a hammer; (3) a trail of blood led from the dumpster to the defendant's apartment; (4) when the police came to the defendant's apartment, the defendant was cleaning the apartment, but blood was seen throughout the unit; (5) the defendant had a cut and abrasion on the defendant's hand; (6) the defendant's palm print matched a partial, latent palm print on the dumpster; and (7) initially, the defendant denied knowing the victim but later changed the story several times. Morris v. State, 278 Ga. 710, 606 S.E.2d 258 (2004).
Evidence that the defendant approached a car, exchanged words with the victim, produced a rifle, and shot the victim two times at point-blank range, killing the victim as the victim's children watched, was sufficient to support the defendant's murder conviction. Lewis v. State, 279 Ga. 69, 608 S.E.2d 602, cert. denied, 546 U.S. 987, 126 S. Ct. 571, 163 L. Ed. 2d 478 (2005).
Sufficient evidence of murder committed at dance.
- Evidence was sufficient to support the defendant's conviction of malice murder, felony murder, and aggravated assault because: (1) the defendant was in an altercation with the victim at a dance; (2) eyewitnesses saw the defendant make a stabbing motion at the victim; (3) the victim died of nine stab wounds, including one to the heart; (4) the defendant's burned blue jeans were found in the defendant's love interest's backyard; (5) the defendant provided an investigator with clean clothes the defendant allegedly wore at the dance; and (6) the victim's blood and DNA were found on the defendant's leather jacket and on the shirt the defendant's love interest wore to the dance. Rakestrau v. State, 278 Ga. 872, 608 S.E.2d 216 (2005).
Murder over automobile rims.
- When the evidence showed that the defendant went to recover the defendant's automobile rims from the victim, who was unable to produce all of them, and the defendant shot the victim, after which the victim ran away, and then found the victim and shot the victim again, after which the victim died of a gunshot wound to the abdomen, the evidence was sufficient to allow a rational trier of fact to find the defendant guilty of malice murder beyond a reasonable doubt. Morgan v. State, 279 Ga. 6, 608 S.E.2d 619 (2005).
Evidence supported the defendant's conviction for malice murder and aggravated assault because the victim had defensive wounds on the hand, the victim's blood was found on the defendant's shoe, a mixture of the victim's and the defendant's blood was found on the defendant's shirt, and the victim planned to ask the defendant to leave the apartment. Williams v. State, 279 Ga. 154, 611 S.E.2d 19 (2005).
Murder of security guard.
- Evidence supported the defendant's conviction for malice murder because: (1) an accomplice testified that the accomplice and the defendant robbed a motel and that the defendant shot a police officer who was working as a security guard; (2) the officer died from the wounds; (3) the accomplice told an ex-spouse on the morning after the crime that the defendant shot a security guard during the robbery; (4) the defendant and the accomplice were seen on the street shortly after the robbery; and (5) a firearms examiner's testimony concerning the location of shell casings and bullets at the crime scene corroborated the accomplice's testimony. Jackson v. State, 279 Ga. 449, 614 S.E.2d 781 (2005).
Evidence was sufficient to enable a rational trier of fact to find the defendant guilty of felony murder since the defendant initially did not claim self-defense and later admitted to stabbing the victim, and the forensic evidence contradicted the defendant's claim of how the victim wielded a knife. Price v. State, 280 Ga. 193, 625 S.E.2d 397 (2006), overruled on other grounds, Patel v. State, 282 Ga. 412, 651 S.E.2d 55 (2007).
Evidence was sufficient to support a malice murder conviction when witnesses saw the defendant arguing with the victim, go with the victim into an area behind a motel where the victim lived, heard shots from the area behind the motel, and later the victim's body was found in that area; also, the defendant was seen at a house with an item wrapped in cloth, and later, the defendant's gun, the murder weapon, was found in the yard of that house, wrapped in cloth. Smith v. State, 280 Ga. 161, 625 S.E.2d 766 (2006).
Despite the defendant's claim that the gun which the defendant was holding discharged accidentally when the victim attacked the defendant, the defendant's conviction of malice murder was supported by sufficient evidence showing, among other things, that the defendant and the victim had a heated telephone conversation within two days of the shooting, that the night before the shooting, the victim went to a bar where the defendant worked, that when the victim entered the bar, the defendant threw a glass ashtray at the victim, that the defendant expressed no remorse on the day of the shooting, that several months later the defendant boasted that the defendant "blew the bitch away," that the defendant dispassionately said the defendant gleaned a leather jacket from the victim's death, and that, by the testimony of the state's experts, the trigger pull required six pounds of pressure, that the shotgun would not fire accidentally, that the shotgun spray pattern indicated that the victim was shot from a distance of 14 feet, and that the pattern was inconsistent with the defendant's version of events. Holton v. State, 280 Ga. 843, 632 S.E.2d 90 (2006).
There was sufficient evidence to convict the defendant of malice murder under O.C.G.A. § 16-5-1, burglary under O.C.G.A. § 16-7-1, and possession of a firearm during the commission of a crime under O.C.G.A. § 16-11-106; the defendant was arrested in the white van seen at the scene of the crime, a person resembling the defendant was seen at the scene, the defendant's brother was tied by DNA evidence to the offense, and the defendant and the defendant's brother were known to commit burglaries together. Denny v. State, 281 Ga. 114, 636 S.E.2d 500 (2006).
Murder of unarmed victim.
- Evidence supported a defendant's conviction for malice murder as: (1) the defendant stated that the defendant was going to re-park the victim's car and became upset; (2) the defendant changed the defendant's mind, gave the victim the car keys, went back into the apartment, came outside with a .38 caliber revolver, and fatally shot the unarmed victim once in the head; (2) children who witnessed the shooting testified that the defendant and the victim were not "fussing"; (3) the children testified that the defendant fired the weapon from the doorway of the apartment as the victim sat on the porch; and (4) the children testified that the victim had no time to react. Bradley v. State, 281 Ga. 173, 637 S.E.2d 19 (2006).
There was sufficient evidence to support a defendant's conviction of malice murder as the jury was authorized to find that the defendant, mistaking the victim for someone who had robbed the defendant, got out of a car and attacked the victim from behind, then forced the victim into the car, drove to a remote location, and shot the victim in the chest; fibers on the victim's body matched the carpeting in the defendant's car, and it was for the jury to determine the credibility of the witnesses as well as the weight to be accorded the expert's fiber testimony. Hamilton v. State, 281 Ga. 501, 640 S.E.2d 28 (2007).
Defendant's malice murder conviction, as a party to the crime, was upheld on appeal as sufficient evidence was adduced at trial of the defendant's participation in the crime, including eyewitness testimony that the defendant encouraged the shooter to shoot the victim, that the defendant recently threatened to shoot the victim in the head, and testimony that the defendant joined the shooter and the codefendant in the confrontation and fled with them after the shooting. Sims v. State, 281 Ga. 541, 640 S.E.2d 260 (2007).
There was sufficient evidence to support the defendant's convictions of malice murder and aggravated assault; after an argument at the victims' house over money, the defendant returned to the house with a concealed pistol, demanded money from the first victim, pulled out the pistol after the first victim said that the first victim was not afraid of the defendant, and shot the two victims. Shelton v. State, 281 Ga. 660, 641 S.E.2d 536 (2007).
Confession supported conviction.
- Evidence was sufficient to support the defendant's murder conviction where the victim was last seen alive at a bank where the victim received $10 bills; shortly afterward, a customer who came to the victim's store encountered the defendant, a store employee, who said that the victim was asleep; a dog led police from the crime scene to a nearby wooded area, where weapons were found, and then directly to the defendant's mobile home; the defendant approached police and made inculpatory statements containing details of the crime not known to the public; police then searched the trailer and found a wallet containing 25 $10 bills; and the defendant subsequently confessed to the crime. Height v. State, 281 Ga. 727, 642 S.E.2d 812 (2007).
Conversations on murder sufficient.
- There was sufficient evidence to show that a defendant was a party under O.C.G.A. § 16-2-20(b)(3) to malice murders since: there was testimony that the defendant had previously acted violently toward the victims and had expressed the desire that the first victim die; that the defendant participated in at least one conversation planning the murders; that the defendant was present at the murder scene; that the defendant washed brown stains off the defendant's shirt after the murders; and that the defendant told two people of the murders before the bodies were discovered. Conway v. State, 281 Ga. 685, 642 S.E.2d 673 (2007).
There was sufficient evidence to support the defendant's convictions of malice murder and of felony murder when the defendant, who had been involved romantically with the victim, walked into the victim's apartment, looked around, left, approached the car where the victim and a friend were sitting, put a gun to the friend's head, and then turned the gun on the victim and shot the victim before speeding off; the friend, who had known the defendant for over a year, identified the defendant as the shooter. Sampson v. State, 282 Ga. 82, 646 S.E.2d 60 (2007).
Based on the evidence explaining the circumstances and events leading up to the victim's death, including testimony from the medical examiner as to the cause of death, the weapon found, and the defendant's own statements, the appeals court concluded that overwhelming evidence existed to support the defendant's convictions of malice murder and possession of a firearm during the commission of a crime. Sturgis v. State, 282 Ga. 88, 646 S.E.2d 233 (2007).
There was sufficient evidence to support the defendant's convictions of malice murder, possession of a firearm by a convicted felon, and possession of a firearm during the commission of a felony; the defendant and the victim lived in the same rooming house where the defendant often intimidated the victim and demanded money from the victim, on the night of the crime the defendant sent the victim to buy crack cocaine and became angry when the victim returned empty-handed, the defendant argued with the victim and shot the victim in the eye, and at the hospital the victim repeatedly declined to say who shot the victim, except to say that a person with a first name other than the defendant's shot the victim accidentally. Jones v. State, 282 Ga. 306, 647 S.E.2d 576 (2007).
Victim shot in front of victim's child.
- There was sufficient evidence to support the defendant's convictions of malice murder, felony murder, aggravated assault, cruelty to children in the first degree, and possession of a firearm in the commission of a felony when the defendant waited for the victim at the victim's house, drove with the victim and the victim's 10-year-old child to a rural road and stopped, displayed a gun and refused to allow the victim to leave, and drove to the home of the defendant's child, where the defendant shot the victim in front of the victim's child. Dalton v. State, 282 Ga. 300, 647 S.E.2d 580 (2007).
Evidence supported the defendant's convictions of malice murder, felony murder, aggravated assault, and possession of a firearm during the commission of a felony; the two surviving victims testified that the defendant began shooting at the victims after arriving at an apartment, and the testimony of the victims, the location of shell casings, and the evidence showing that the deceased victim was shot from a distance of over three feet, significantly refuted the defendant's claim of self-defense. Jackson v. State, 282 Ga. 494, 651 S.E.2d 702 (2007).
Delayed ignition devices used as part of murder cover-up.
- Sufficient evidence supported the defendant's convictions of malice murder and first-degree arson since: the defendant, who owed money to the victim for a house and who delayed paying the money, was suppose to meet the victim at a bank to pay the victim on the day the victim's body was discovered in the victim's burned mobile home; a medical examiner testified that the victim died by strangulation; the defendant was seen at the mobile home twice that day and appeared agitated; there was fire-related activity in the defendant's home; the defendant completed firefighting classes for work that included training in delayed-ignition devices constructed from household items; there was similar transaction evidence about a fire in the defendant's home and the defendant's use of the insurance proceeds from that fire to pay debts; and the defendant's claim that the defendant was with the defendant's spouse at the time of the fire could be readily explained by the possibility of the use of a delayed-ignition device. Bryant v. State, 282 Ga. 631, 651 S.E.2d 718 (2007).
Murder of a convenience store clerk.
- There was sufficient evidence to support a defendant's convictions of malice murder, armed robbery, kidnapping, third-degree arson, burglary, and possession of a firearm during the commission of a crime when the evidence showed that the defendant made the defendant's accomplice shoot a convenience store clerk after the defendant forced the clerk at gunpoint into a wooded area, took money from a cash register in the store, and started a fire in the store. The accomplice's testimony was sufficiently corroborated by the defendant's admission that the defendant owned the shotgun that was used in the shooting, the defendant's admission that the defendant gave the shotgun to the accomplice, the testimony of a third person that the accomplice gave the third person the shotgun after the robbery, and the fact that shotgun shells found in the defendant's home matched shells taken from the clerk's body. Judkins v. State, 282 Ga. 580, 652 S.E.2d 537 (2007).
Evidence was sufficient to support the defendant's convictions as a party to malice murder, felony murder, kidnapping with bodily injury, false imprisonment, and aggravated assault when: the victim, who claimed to have been robbed of money the defendant and a codefendant gave the victim for drugs, had been made to drive around while a codefendant pointed a gun at the victim; the victim was later taken to an apartment where the victim was threatened and pistol-whipped; the victim was taken out of the apartment, forced into some woods, and fatally shot; and following the killing, the defendant and a codefendant moved the victim's car from the apartment complex to a parking lot where the defendant and others had met the victim earlier that evening. John v. State, 282 Ga. 792, 653 S.E.2d 435 (2007).
Evidence was sufficient to support the defendant's convictions of malice murder, felony murder, burglary, aggravated assault, and possession of a firearm during the commission of a felony. Two off-duty police officers who worked as security guards for the apartment building where the victim was shot heard a "pop" and saw two people running from the apartment where the victim was shot; the victim's friend testified that the defendant and the codefendant had been at the apartment in the days before the murder and had asked about a gun the victim had; and a neighbor testified that around the time of the shooting, the defendant and the codefendant had followed the victim to the apartment, then pushed open the door without knocking, and that the defendant had a weapon. Walker v. State, 282 Ga. 703, 653 S.E.2d 468 (2007).
Knife used as murder weapon.
- Sufficient evidence existed to support a defendant's convictions of malice murder and possession of a knife during the commission of a felony under O.C.G.A. § 16-11-106(b): there was (1) eyewitness testimony that the defendant stabbed the victim, who was involved in a dispute with a relative of the defendant, in the chest with a knife; (2) evidence supporting a finding that the knife was three inches or longer; (3) the defendant's admission to "sticking" the victim; and (4) testimony that the defendant twice pulled a knife on the victim before. Stanley v. State, 283 Ga. 36, 656 S.E.2d 806 (2008).
Defendant's malice murder conviction was upheld on appeal because: (1) the evidence presented by the state in support of the state's malice murder and other charges was sufficient; (2) the defendant's objection to the victims' parent's testimony as irrelevant and inflammatory was entirely too vague and general to present any question for determination by the trial court; (3) the defendant failed to support a requested instruction with the specific language sought to be included therein; (4) a challenged instruction on the murder count did not effectively direct a verdict of guilty on that charge as an inaccuracy was cleared up by the court, and the charge as a whole was not likely to confuse the jury; and (5) an involuntary manslaughter charge was not warranted by the evidence. Davenport v. State, 283 Ga. 171, 656 S.E.2d 844 (2008).
More than mere presence shown.
- Sufficient evidence supported a felony murder conviction because ample evidence, including the defendant's admission, showed more than a mere presence at the crime scene, and that the defendant participated in the felony murder of the victim as a party to the crime while in the commission of an armed robbery. Moreover, the defendant did not have to fire the fatal shot in order to be guilty as a principal because the offense of felony murder was accomplished when a defendant caused the death of another human being while in the commission of the underlying felony. Curinton v. State, 283 Ga. 226, 657 S.E.2d 824 (2008).
Evidence supported the defendant's convictions of malice murder and two counts of aggravated assault; witnesses testified that a person wearing a red bandana went into a bar, pointed a pistol at one victim, left, and later returned and began shooting, and other witnesses testified that the defendant was the shooter and that the defendant was wearing a red bandana. Felton v. State, 283 Ga. 242, 657 S.E.2d 850 (2008).
Evidence was sufficient to support convictions of malice murder, armed robbery, and aggravated assault when the defendant demanded that the victim "break bread", hit the victim three times with a metal flashlight, and rummaged through the victim's pockets after the victim refused, hit the victim again after the victim refused to turn over a ring, and then took the ring. Gibson v. State, 283 Ga. 377, 659 S.E.2d 372 (2008).
Evidence supported a conviction of malice murder. The defendant was identified as one of the persons who fled to a hotel from the car where the victim had been shot; bloody clothes matching those worn by the defendant were found in a hotel room along with the defendant; genetic profiles of both the victim and the defendant were found on a sock in the room; a fingerprint removed from a vent cover in the room was that of the defendant; a bullet removed from the victim's body was fired from a pistol found in the vent; and the person found in the hotel room with the defendant testified that the defendant removed the vent cover and placed the pistol in the ductwork. Smith v. State, 284 Ga. 17, 663 S.E.2d 142 (2008).
Defendant's convictions on charges of malice murder, aggravated assault, and obstruction were supported by evidence that showed, inter alia, that the defendant was upset because the victim owed the defendant money, that the defendant got into an argument with the victim that culminated in the defendant shooting the victim, that a shell casing from the gun used to shoot the victim was found in the defendant's room, and that when the defendant was arrested, the defendant lied about the defendant's identity. Williams v. State, 284 Ga. 94, 663 S.E.2d 179 (2008).
Eyewitness testimony sufficient for conviction.
- Testimony from two eyewitnesses that the defendant fatally shot the victim with an assault rifle and aimed the rifle at one of the witnesses, and evidence that the defendant then fled and tried to elude authorities was sufficient to convict the defendant of felony murder, aggravated assault with a deadly weapon, aggravated assault, and possession of a firearm during the commission of a felony. McKenzie v. State, 284 Ga. 342, 667 S.E.2d 43 (2008).
Confession supported conviction.
- Evidence supported a defendant's conviction for malice murder and rape. The victim had seminal fluid on her leg and buttocks and in her vagina, a massive wound in the back of the head caused by at least five individual blows that had driven pieces of her skull into her brain, and ligature marks on her neck; the defendant told a co-worker that he had hit a woman on the back of the head; DNA obtained from the defendant matched that found on the victim; and the defendant told a detective that the defendant had killed the victim. Holmes v. State, 284 Ga. 330, 667 S.E.2d 71 (2008).
Evidence supported convictions of malice murder, concealing a death, and possession of a firearm during the commission of a crime. A codefendant testified that the defendant, who was jealous of one victim, shot the victims in the defendant's home, then put the bodies in the second victim's car, drove the car away, poured gasoline on the car, and set the car on fire; an officer who had known the defendant for years testified that the defendant called the officer twice about surrendering to authorities; police found blood, human tissue, shotgun pellets, part of a shotgun, and ammunition in the defendant's home, a trail of blood leading away from the house, and a shotgun shell casing and a gas can in the defendant's truck; and a cellmate testified that the defendant told the cellmate that the defendant shot two people, that the defendant inquired whether fingerprints could be retrieved from a burned vehicle, and that the defendant said that the defendant had soaked up blood on the defendant's carpet with cat litter. Hendrix v. State, 284 Ga. 420, 667 S.E.2d 597 (2008).
Eyewitnesses testified that the defendant ordered a man to shoot the victim, who was wounded but escaped; later, eyewitnesses saw the defendant and an armed cohort encounter the unarmed victim, who was fatally shot. This evidence was sufficient to support the defendant's convictions for aggravated assault and murder. Wilcox v. State, 284 Ga. 414, 667 S.E.2d 603 (2008).
Testimony from drug dealer supported conviction.
- Evidence supported convictions of malice murder, possessing a firearm during the commission of that murder, and possession of a weapon by a convicted felon. A drug dealer told police that the drug dealer saw the defendant shoot the victim, although the drug dealer said at trial that the drug dealer did not see the shooting; the drug dealer's spouse testified as to a statement by the drug dealer that was inconsistent with the drug dealer's trial testimony; and another prosecution witness testified that before the shooting, the defendant said that the defendant was "going to get" the victim and that afterward, the defendant said, "I told you I was going to do" the victim. Broner v. State, 284 Ga. 402, 667 S.E.2d 613 (2008).
Evidence was sufficient to support convictions of malice murder and of the possession of a firearm during the commission of a crime. Witnesses testified that after getting into a confrontation with a second person at a nightclub, the defendant threatened to kill the second person, that the defendant retrieved a gun and waited outside the club for the second person, and that after being wrestled to the ground, the defendant fired shots, one of which fatally wounded a bystander. Savior v. State, 284 Ga. 488, 668 S.E.2d 695 (2008).
Mere presence at scene of murder rejected.
- In a malice murder case, there was no merit to a defendant's argument that the evidence established only the defendant's mere presence at the scene; at the very least, the defendant was a party to the crime under O.C.G.A. § 16-2-20(a). While it was not established that the defendant actually committed the physical act of stabbing the victim, the state presented evidence that the defendant took part in another murder the night before the victim was killed, that the victim threatened to disclose the earlier murder to police, that the victim was killed to silence the victim, and that the defendant assisted the codefendants in removing the victim from the trunk of a car and dragging the body into the woods. Metz v. State, 284 Ga. 614, 669 S.E.2d 121 (2008), overruled on other grounds, State v. Kelly, 290 Ga. 29, 718 S.E.2d 232 (2011).
Knife used as a murder weapon.
- Despite defendant's testimony that the victim and the victim's friend attacked the defendant, that the defendant picked up a knife in self defense, and that the defendant stabbed the victim in self-defense, the testimony of the friend that defendant had been fighting and that the friend heard the victim yell that defendant had stabbed the victim was sufficient to convict defendant of malice murder and felony murder. Hooper v. State, 284 Ga. 824, 672 S.E.2d 638 (2009).
Confession supported conviction.
- Evidence was sufficient to support the defendant's convictions for malice murder, theft by taking an automobile, and possession of a firearm by a convicted felon as the defendant admitted to a cellmate and to a cousin's roommate that the defendant fatally shot the cousin when the cousin told the defendant to move out of a shared apartment; there was also physical evidence, the recovery of the gun used in the incident, and witness testimony that supported the conviction. Jackson v. State, 284 Ga. 826, 672 S.E.2d 640 (2009).
Sufficient evidence supported a defendant's murder conviction as the defendant convinced the victim to pick the defendant up in the victim's car and, during an argument, produced a knife; as the two struggled, the defendant stabbed the victim six times. Cane v. State, 285 Ga. 19, 673 S.E.2d 218 (2009).
Knife used as a murder weapon.
- Evidence supported the defendant's conviction of malice murder. The defendant's roommate, who had been summoned by the second victim, found the first victim covered with blood in a bedroom; the defendant was also in the bedroom, holding a knife, and told the roommate that the first victim "had it coming"; police who surrounded the building entered the bedroom and found the first victim and the second victim, who had become separated from the roommate when the roommate ran from the scene; the defendant was found in a neighboring apartment, which the evidence showed that the defendant had entered through a connecting attic; the defendant's blood was found in both apartments; and the defendant's blood, along with the victims' blood, was found on the defendant's clothing, the knife, and numerous other items. Hurst v. State, 285 Ga. 294, 676 S.E.2d 165 (2009).
Evidence was sufficient to support the defendant's conviction for malice murder as the defendant forced a former girlfriend to purchase a shotgun, and then had another girlfriend set up the victim under the pretense of having sex with him, whereupon the defendant entered the room and fatally shot the victim in the face; participants in various stages of the criminal conduct testified against the defendant at trial. Varner v. State, 285 Ga. 300, 676 S.E.2d 189 (2009).
Following evidence was sufficient to support the defendant's murder conviction: (1) the victim's sibling heard the defendant and the victim arguing in a bedroom; (2) minutes later, the sibling heard a gunshot and found the victim with a gunshot wound to the head and the defendant kneeling on the floor; (3) the defendant made incriminating statements to police; and (4) an expert opined that the bullet taken from the victim had been fired from the gun found at the scene, which defendant had purchased. Watkins v. State, 285 Ga. 355, 676 S.E.2d 196 (2009).
Victim shot twice in head.
- Eyewitness testimony that the defendant argued with and later fatally shot the victim twice in the head was sufficient to convict the defendant of malice murder. Marshall v. State, 285 Ga. 351, 676 S.E.2d 201 (2009).
There was sufficient evidence to support the defendant's conviction for, inter alia, malice murder of the defendant's roommate as the defendant gave conflicting statements to police regarding when the roommate was last seen, the defendant knew that the roommate had been stabbed to death although that information was not disclosed to the police, and blood stains in the defendant's home and on the defendant's furniture matched the roommate's blood. Carson v. State, 285 Ga. 337, 676 S.E.2d 207 (2009).
Knife used as a murder weapon.
- Evidence was sufficient to convict two defendants of malice murder: (1) a week after one defendant fought, and the other threatened, their roommate, the latter died in their house after being beaten with a guitar and stabbed; (2) the next day, a defendant, who had bruises on the defendant's arms, told a neighbor of finding the victim's body at their home; (3) the victim's blood was found on the other defendant's shorts; and (4) the knife handle and pieces of the guitar were found near the crime scene. Dixon v. State, 285 Ga. 312, 677 S.E.2d 76 (2009), overruled on other grounds, 287 Ga. 242, 695 S.E.2d 255 (2010).
Eyewitness testimony supported murder conviction.
- Convictions of two defendants of, inter alia, malice murder and felony murder were supported by sufficient evidence because eyewitnesses saw the defendants point guns at the victim, shoot, and flee. Daniel v. State, 285 Ga. 406, 677 S.E.2d 120 (2009).
Evidence supported the defendants' convictions of malice murder and possession of a firearm by a convicted felon. The first defendant told a driver to stop a car while the second defendant and the victim got out of another car; the second defendant held the victim at gunpoint with an AK-47; the first defendant jumped out of the car and approached the second car with a .45 caliber handgun; both defendants fired their weapons at the victim as the victim was running; after the victim fell, the second defendant stood over the victim with the rifle and fired several more times; the victim suffered five back-to-front bullet wounds; and shell casings from a .45 caliber handgun as well as an AK-47 were found at the scene. Anderson v. State, 285 Ga. 496, 678 S.E.2d 84 (2009).
Malice murder conviction was supported by sufficient evidence under circumstances in which, among other things, an eyewitness observed the defendant and a companion approach the victim, saw the victim throw the victim's arms above the victim's head and remain in that position for about five seconds, and then turn and run, and then heard a single gunshot; a coworker of the victim heard a gunshot, heard the victim exclaim that the victim had been "hit," and saw evidence of the perpetrator in close proximity to the victim immediately after the shooting. Defendant claimed that the defendant's gun had accidentally discharged, striking the victim. Glover v. State, 285 Ga. 461, 678 S.E.2d 476 (2009).
Convictions of felony murder, O.C.G.A. § 16-5-1, and armed robbery, O.C.G.A. § 16-8-41, were supported by sufficient evidence because, inter alia, the defendant acted as a lookout and deterred two potential customers while a codefendant entered the victim's restaurant, shot the victim to death, robbed the cash register, and stole the victim's wallet; after the shooting, the defendant and the codefendant fled the scene together and went to a friend's apartment, where the defendant changed the defendant's shirt to disguise the defendant's identity. Proof of the defendant's direct commission of the crimes was not required because the jury could infer the defendant's participation from conduct before, during, and after the crimes. Washington v. State, 285 Ga. 541, 678 S.E.2d 900 (2009).
Killing of restaurant manager.
- Restaurant was robbed, the manager was fatally shot, and the manager's car was stolen. As the defendant's accomplice, the defendant's cellmate, and an officer testified that the defendant admitted committing the murder, the evidence was sufficient to convict the defendant of malice murder, armed robbery, and theft by taking. Patterson v. State, 285 Ga. 597, 679 S.E.2d 716 (2009), cert. denied, 558 U.S. 1117, 130 S. Ct. 1051, 175 L. Ed. 2d 892 (2010).
Sufficient evidence supported the defendant's conviction of malice murder under circumstances in which the victim's father received a call originating from the victim's cell phone, and, when that number was called back, all that could be heard were noises, including gasping, gurgling, and children screaming during the second call, before the line was disconnected; officers later found the victim lying on the kitchen floor with a cell phone in the victim's hand, dead from a single gunshot wound to the head, and a handgun retrieved on the premises was later determined to have fired the bullet that killed the victim. The defendant testified that the defendant and the victim were arguing inside the home, that the argument became physical, that the defendant took the children and a gun out to the defendant's truck, that the defendant returned to the house, and that the defendant did not know what happened after that. Paslay v. State, 285 Ga. 616, 680 S.E.2d 853 (2009).
Sufficient evidence supported the defendant's convictions of murder, felony murder, and aggravated assault; the evidence revealed that the victim and the defendant got into a physical fight at a bar, and that the victim then left the bar and went to an apartment. The defendant then went home, retrieved a handgun, went to the apartment, knocked on the door, and when one of the people inside opened the door, the defendant shot the victim in the chest, killing the victim. Rector v. State, 285 Ga. 714, 681 S.E.2d 157, cert. denied, 558 U.S. 1081, 130 S. Ct. 807, 175 L. Ed. 2d 567 (2009).
Evidence was sufficient to authorize a rational trier of fact to find the defendant guilty of malice murder and felony murder beyond a reasonable doubt because a bloody fingerprint found at the crime scene matched the defendant's fingerprint, bloody boot impressions found at the scene were connected to the defendant's boots, and blood on the defendant's boots matched the victim's blood; a witness testified that the defendant had stated that the defendant attacked the victim in a bathroom, and the crime scene investigator testified that based on blood spatter pattern analysis, the victim's beating began in the bathroom. Arrington v. State, 286 Ga. 335, 687 S.E.2d 438 (2009), cert. denied, 131 S. Ct. 112, 178 L. Ed. 2d 69 (U.S. 2010).
Evidence was ample for any rational trier of fact to find the defendant guilty beyond a reasonable doubt of malice murder and possession of a firearm during the commission of a felony because a witness testified at trial that defendant was responsible for the shooting, and in addition to witness testimony implicating defendant, police found bullets of the same caliber used to shoot the victim in a codefendant's vehicle soon after the shooting; the jury was also shown transcripts and video recordings of statements given to the police by two witnesses in which the witnesses implicated defendant. Hicks v. State, 287 Ga. 260, 695 S.E.2d 195 (2010), overruled on other grounds by McClure v. State, 306 Ga. 856, 834 S.E.2d 96 (2019).
Murder with 9mm handgun.
- Evidence was sufficient for a rational jury to find the defendant guilty beyond a reasonable doubt of malice murder because the defendant shot the victim with a 9mm handgun after entering the victim's house in order to take the victim's possessions; the defendant's girlfriend testified that the day before the shooting, she saw the defendant with a 9mm handgun. Fox v. State, 289 Ga. 34, 709 S.E.2d 202 (2011).
Steering vehicle as criminal attempt to commit murder.
- In view of the circumstances of the chase, in which the codefendant leaned the codefendant's upper body out the window of the moving vehicle while shooting at the trooper, the jury could have concluded that the defendant assisted the codefendant by steering the vehicle and the jury was free to reject as unreasonable the hypothesis that the defendant was a mere passenger who did not assist the codefendant. Best v. State, Ga. App. , 846 S.E.2d 157 (2020).
Admission to another inmate of killing someone.
- Although there was conflicting evidence as to whether the defendant or the codefendant was the shooter, the evidence was more than sufficient to authorize a rational trier of fact to find the defendant guilty of malice murder beyond a reasonable doubt because the defendant confronted several people in a park, told the people that something was about to go down, and warned the people not to tell anyone; the defendant then confronted the victim and argued loudly with the victim, who was fatally shot twice in the head from close range, and while in jail, the defendant admitted to another inmate that the defendant killed somebody. Johnson v. State, 289 Ga. 106, 709 S.E.2d 768 (2011).
Fingerprints and eyewitness identification sufficient for murder conviction.
- Evidence was sufficient to enable a rational trier of fact to find the defendant guilty of malice murder, armed robbery, and aggravated assault beyond a reasonable doubt because although the defendant denied to police that the defendant had any contact with the silver car that was connected to the robbery, the defendant's fingerprints were found on the outside of the car and an eyewitness's physical description of the second gunman from the robbery matched the defendant. Carter v. State, 289 Ga. 51, 709 S.E.2d 223 (2011).
Evidence supported the defendant's convictions for malice murder, felony murder, criminal attempt to commit armed robbery, armed robbery, aggravated assault, and possession of a firearm during the commission of a crime because: (1) the defendant participated in the armed robbery of three people, including the shooting victim, who were sitting in a car on a neighborhood street; (2) during the encounter, the co-indictee fatally shot the victim in the head with a shot gun; (3) one of the two other people in the car testified that, after the shooting, the defendant, with the defendant's hand in the defendant's pocket simulating that the defendant had a gun, took money and drugs from the witness; (4) the co-indictee also took money from the other person; and (5) the defendant and the co-indictee then fled the scene. Gilyard v. State, 288 Ga. 800, 708 S.E.2d 329 (2011).
Jury choosing to believe state's witnesses.
- Evidence was sufficient for a rational trier of fact to find the defendant guilty beyond a reasonable doubt of malice murder and possession of a firearm during the commission of a crime because although there were defense witnesses who testified that someone else, and not defendant, was the actual shooter, and there were inconsistencies and contradictions in the testimony of the state's witnesses, the jury, after considering all of the evidence, chose to believe the state's version and that defendant's witnesses were not credible. Martinez v. State, 289 Ga. 160, 709 S.E.2d 797 (2011).
Evidence was sufficient to support the defendant's conviction for malice murder because evidence was presented that the defendant and a codefendant entered a restaurant to rob the restaurant and shot two employees of the restaurant. In a statement to the police, the defendant admitted that the defendant entered the restaurant with a handgun to rob the restaurant, but the defendant claimed that the defendant heard gunshots and left the restaurant, while the codefendant gave a similar statement to the police. Watkins v. State, 289 Ga. 359, 711 S.E.2d 655 (2011).
Murder occurring during robbery.
- Evidence was sufficient to authorize a rational trier of fact to find the defendant guilty beyond a reasonable doubt of malice murder, aggravated assault, and possession of a firearm during the commission of a crime because the three men who were with the victim when the victim was shot identified the defendant as the person who fired shots at them; there was testimony that the defendant was the boyfriend of a woman who was the former girlfriend of one of the three men with the murder victim and that the defendant and the former boyfriend had exchanged heated words earlier on the day the victim was killed as well as the afternoon of the day before the shooting. Glass v. State, 289 Ga. 706, 715 S.E.2d 85 (2011).
Murder occurring during pool hall fight.
- Evidence presented at trial was sufficient to authorize a rational jury to reject the defendant's justification defense and find the defendant guilty of murder beyond a reasonable doubt because the defendant was involved in a pool hall fight, drew a pistol, and opened fire, killing the victim. Funes v. State, 289 Ga. 793, 716 S.E.2d 183 (2011).
Evidence was sufficient to support convictions for malice murder because: (1) before the decedent's death, the decedent told a friend that the decedent had been beaten in a fight by one of the defendants; (2) the other defendant placed dozens of calls from the decedent's cell phone as the defendants traveled from Tampa to Atlanta in the decedent's pickup truck; (3) the truck was destroyed in an arson fire near an apartment complex where the defendants were staying with relatives; (4) the decedent's body was found in the bed of the truck; (5) the decedent had been dead for days before the fire; and (6) personal belongings of the decedent were found in the possession of the defendants. Miller v. State, 289 Ga. 854, 717 S.E.2d 179 (2011).
Evidence was sufficient to enable a rational trier of fact to find the defendant guilty of malice murder beyond a reasonable doubt because police found the victim beaten, stabbed, and strangled in the living room, and blood evidence collected at the scene later connected the defendant to the crime. Wheeler v. State, 290 Ga. 817, 725 S.E.2d 580 (2012).
Evidence was sufficient to authorize a rational trier of fact to find the defendant guilty of malice murder and possession of a firearm during the commission of a felony because the state's case rested on direct as well as circumstantial evidence; the direct evidence included testimony by an eyewitness that the defendant was the shooter, testimony by another witness who overheard the defendant discussing the shooting and laughing at the fact that the defendant killed the victim in front of the victim's children, and the confession of the defendant to police officers that the defendant shot the victim. Rockholt v. State, 291 Ga. 85, 727 S.E.2d 492 (2012).
Evidence supported the defendant's convictions of felony murder during the commission of aggravated assault, aggravated assault, possession of marijuana, and possession of a firearm during the commission of a crime since: (1) after smoking marijuana, the defendant attacked the victim, pulled a gun from the defendant's pocket, and shot the victim four times; (2) the victim told the police that the defendant did it; (3) the victim died; (4) a knife was found near the victim, the defendant had a stab wound, and the defendant claimed self-defense; and (5) witnesses one and two saw the defendant pull the gun but did not see the victim with a knife. Hill v. State, 291 Ga. 160, 728 S.E.2d 225 (2012).
State's physical evidence, including the victim's blood on the defendant's shirt, the defendant's unexplained possession of the victim's truck, watch, and other personal property, and the fact that the defendant was seen near the victim's residence and farm not long before the crimes were committed, supported the defendant's convictions for malice murder and armed robbery. Blevins v. State, 291 Ga. 814, 733 S.E.2d 744 (2012).
Delayed complications supported murder conviction.
- When the medical examiner determined that, although the autopsy revealed other medical conditions, the cause of the victim's death was delayed complications from the blunt force trauma to the victim's head, the evidence was sufficient to establish that the defendant's actions were the cause of the victim's subsequent death. Clarke v. State, 292 Ga. 305, 737 S.E.2d 575 (2013).
Confession supported conviction.
- Evidence that the victim's brother told an officer the brother thought the victim was dead because the defendant, the father, had killed the victim; that the defendant admitted to family members, while meeting in an interview room at the police station, that the defendant killed the victim; and that the victim had been strangled to death was sufficient to support the defendant's conviction for malice murder. Rashid v. State, 292 Ga. 414, 737 S.E.2d 692 (2013).
Defendant's claim that the evidence was insufficient to support the convictions for malice murder and possession of a firearm during the commission of a felony because the state was unable to present evidence to disprove the earlier incident between the defendant and the victim or disprove that the defendant acted in self-defense when the defendant shot the victim failed because testimony from eyewitnesses to the shooting and forensic evidence belied the claim that the defendant acted in self-defense. Among other things, the defendant testified the defendant shot the victim because the victim pulled out a knife, claiming the defendant saw the blade; however, two closed pocket knives were found. Hoffler v. State, 292 Ga. 537, 739 S.E.2d 362 (2013).
Testimony from two witnesses that the witnesses recognized the defendant from the defendant's distinctive walk and that one also recognized the defendant from the defendant's posture, shoulders, complexion, and nose; the fact that a dark fiber like one that could have been from the shooter's wig was found in the defendant's truck; and the defendant's admission to an inmate that the defendant shot the victim supported the defendant's convictions for malice murder and possession of a firearm during the commission of a felony. Hayes v. State, 292 Ga. 506, 739 S.E.2d 313 (2013).
Evidence that the defendant's wallet was found on the victim's kitchen table, a plastic grocery bag containing the defendant's blood stained clothes was discovered, and DNA testing showed that the blood on the defendant's windbreaker came from the victim and the blood spatter was consistent with the wearer having struck the victim, was sufficient to support the defendant's convictions for malice murder and robbery. Hall v. State, 292 Ga. 701, 743 S.E.2d 6 (2013).
Defendant's admission that the defendant helped the defendant's son hold down the victim as the son penetrated the victim, that the defendant rubbed the defendant's own penis against the victim and ejaculated on the victim, that the defendant put the defendant's hands over the son's hand as the son choked the victim, that the defendant helped dump the victim's body, and the testimony of the defendant's wife that the defendant helped undress the victim, the defendant put the defendant's mouth on the victim's penis, and the defendant attempted to put the defendant's penis in the victim's anus was sufficient to support the defendant's convictions for murder, false imprisonment, two counts of aggravated child molestation, child molestation, cruelty to children in the first degree, concealing the death of another, and tampering with evidence. Edenfield v. State, 293 Ga. 370, 744 S.E.2d 738 (2013), overruled on other grounds by Willis v. State, 2018 Ga. LEXIS 685 (Ga. 2018).
Although the jury heard the defendant's statement claiming that there was a struggle for the gun, the jury also heard evidence that the gunshot to the chest came after the victim had already been shot and that the gunshot to the chest likely did not occur during a struggle and, thus, the evidence was sufficient for the jury to find the defendant guilty of malice murder. Thomas v. State, 297 Ga. 750, 778 S.E.2d 168 (2015).
Evidence supported the defendant's malice murder conviction when the defendant shot the victim because the defendant believed the victim took $400 and the defendant's phone, given that a witness saw the defendant meet the victim at the door of the defendant's house, call the victim a bitch, and yank the victim's arm, then the witness heard a gunshot, and the defendant admitted shooting the victim but claimed the shooting was accidental. Furthermore, the trial court did not err in denying a motion for new trial on general grounds. Smith v. State, 300 Ga. 532, 796 S.E.2d 671 (2017).
After the jury heard testimony that the defendant physically assaulted the victim, held the victim at gunpoint, shot the victim as the victim tried to get away, and left the victim at the residence after shooting the victim, the evidence was sufficient to support a finding of malice murder. Benton v. State, 305 Ga. 242, 824 S.E.2d 322 (2019).
Evidence sufficient for murder conviction in drug cases.
- Evidence was sufficient to support the first defendant and the second defendant's convictions for murder, kidnapping, armed robbery, and burglary, as the evidence showed that the defendants were involved in a scheme to rob a person who they believed to be selling large amounts of marijuana from an apartment, that the defendants burst into the apartment brandishing guns, that one of the defendants fatally shot the victim, and that the other defendant forced two people present to lie on the ground and divulge the location of a safe in the apartment that held money and marijuana. Howard v. State, 279 Ga. 166, 611 S.E.2d 3 (2005).
Evidence was sufficient to support a malice murder conviction after the defendant had approached the victim's car to sell drugs and leaned into the car, when a passenger grabbed the drugs, and the victim sped off, but the car stalled a few blocks down the street, and defendant ran to the car to retrieve the drugs, but discovered that all of the drugs had not been returned, ran back to the disabled car, and shot the victim in the leg and then the head. Collier v. State, 280 Ga. 148, 625 S.E.2d 757 (2006).
Dying declaration of victim as evidence in murder conviction.
- Evidence was sufficient to enable a rational trier of fact to find a defendant guilty of murder beyond a reasonable doubt as a result of the evidence establishing that the victim identified the defendant as the individual who caused the victim's gunshot wound via a dying declaration made before the victim died, and the defendant had earlier in the day accused the victim of stealing a gun from the defendant, which was a baseless claim. Ventura v. State, 284 Ga. 215, 663 S.E.2d 149 (2008).
Evidence sufficient for malice murder as party to crime.
- Evidence was sufficient to support the defendant's conviction for malice murder as a party to the crime under O.C.G.A. § 16-2-20(b)(3) as the defendant accompanied the defendant's son on two occasions to the victim's apartment, the defendant lied to gain entry into the victim's apartment, the defendant was present when the victim was fatally shot, and the defendant fled after the incident. Ashe v. State, 285 Ga. 359, 676 S.E.2d 194 (2009).
Arguments over volume of stereo and television justifying murder.
- Evidence was sufficient to support the defendant's conviction for, inter alia, malice murder as the defendant admitted to fatally shooting the victim in the chest with the victim's rifle after the two argued about the volume of the stereo and television. Jones v. State, 285 Ga. 328, 676 S.E.2d 225 (2009).
Malice murder conviction following prescription drug use taken for injuries inflicted by defendant.
- There was sufficient evidence to support a defendant's malice murder conviction as the jury was authorized to reject other possibilities of how the victim died as theoretical since the only cause of the victim's death supported by the evidence was that the death was the result of an intracerebral hemorrhage caused by the anticoagulant drug Coumadin, which the victim was taking as a result of being shot by the defendant and becoming paralyzed. Shields v. State, 285 Ga. 372, 677 S.E.2d 100 (2009).
Doctor's prescription of controlled substances causing death.
- Felony murder conviction was supported by evidence that the defendant illegally provided controlled substances through prescriptions, a dangerous felony, and that the victim's death was a foreseeable result within the meaning of the felony murder statute, O.C.G.A. § 16-5-1. Chua v. State, 289 Ga. 220, 710 S.E.2d 540 (2011).
Felony murder predicated on drug transaction.
- Defendant was properly convicted of felony murder predicated on a drug transaction and attempted violation of the Georgia Controlled Substance Act (VGCSA), O.C.G.A. § 16-13-20 et seq., because there was a sufficient nexus between the VGCSA and the victim's death to show that the defendant's participation in the drug transaction was the proximate cause of the victim's death because four men met for a drug transaction and something went wrong; during the course of the events, the defendant shot and killed the victim; thus, the felony the defendant committed directly and materially contributed to the happening of a subsequent accruing immediate cause of the death. Davis v. State, 290 Ga. 757, 725 S.E.2d 280 (2012).
Similar transaction evidence admissible.
- Because the state adequately showed the connection between the murder of one victim, and the murder charged in the instant proceeding, specifically embedded in the defendant's proffered motive that the killing of the victim in the instant proceeding was committed to prevent evidence from being introduced against the defendant in the first killing, the similar transaction evidence was properly allowed; hence, the similar transaction did not amount to improper character evidence. Young v. State, 281 Ga. 750, 642 S.E.2d 806 (2007).
Spontaneous inculpatory statements used as evidence.
- Defendant's convictions of malice murder, armed robbery, and possession of a firearm during the commission of a felony were supported by the evidence, which included use of the murder weapon during a later robbery by the defendant's accomplices, a video that provided a corroborating account of the shooting, and the defendant's spontaneous inculpatory statements while being transported from Maryland to Georgia. Stokes v. State, 281 Ga. 825, 642 S.E.2d 82 (2007), overruled on other grounds by State v. Lane, 2020 Ga. LEXIS 98 (Ga. 2020).
During the defendant's trial for malice murder and drug-related offenses, the trial court did not abuse the court's discretion in admitting as similar transaction evidence testimony regarding the defendant's previous arrest on a charge of possession of cocaine with intent to distribute and a prior shooting incident because a drug sting was similar to the cocaine trafficking in that both involved relatively recent arrangements for appellant to sell cocaine, and the shooting incident was probative of defendant's inclination towards unprovoked gun violence; the similar transactions were offered to prove, inter alia, intent and state of mind, the trial court admitted the evidence for those limited purposes only, and the trial court instructed the jury accordingly. Moore v. State, 288 Ga. 187, 702 S.E.2d 176 (2010).
Evidence insufficient for murder conviction.
- See Johnson v. State, 269 Ga. 840, 506 S.E.2d 374 (1998).
Evidence sufficient for murder and armed robbery.
- Although defendant was not the triggerman, since there was evidence which authorized findings that defendant was present with the triggerman for over two hours prior to the murder; that defendant drove the triggerman to the victim's house; that defendant was present in the room when the victim was shot; that the victim was shot with a gun of the same model and caliber that defendant owned; and that defendant destroyed evidence, assisted in the disposal of the decedent's body, fled from the jurisdiction where the crimes were committed, reaped benefits from the armed robbery, and at no time made any attempt to be disassociated from the criminal enterprise, a rational trier of fact could have found the defendant guilty of the crimes of murder and armed robbery beyond a reasonable doubt. Tho Van Huynh v. State, 257 Ga. 375, 359 S.E.2d 667 (1987).
Evidence was sufficient to authorize a rational trier of fact to find defendant guilty beyond a reasonable doubt of murder and armed robbery. Cook v. State, 269 Ga. 460, 499 S.E.2d 887 (1998).
Sufficient evidence supported convictions arising from the defendant's participation in a robbery which resulted in the death of a store clerk where, knowing that the cousin was going to commit a robbery, the defendant voluntarily went with the cousin, saw that the cousin had a gun, agreed to "stand over" the scene, and joined the cousin in using the victim's credit cards afterwards; contrary to the defendant's assertions, testimony showed that the defendant was not intimidated by the cousin. Scott v. State, 280 Ga. 466, 629 S.E.2d 211 (2006).
Evidence was sufficient to authorize the jury to find the defendant guilty of armed robbery and malice murder because the victim went missing shortly after coming into a substantial amount of cash, the defendant had access to the victim's home, and the defendant was seen driving around in the victim's two vehicles, selling the victim's property, and with a large amount of cash; the victim died from blunt trauma to the head, a mallet with blood on the mallet was found inside the house, and a witness testified that the defendant confided to the witness that the defendant killed the victim, placed the victim's body in a freezer, and took the victim's money. Cutrer v. State, 287 Ga. 272, 695 S.E.2d 597 (2010).
Because defendant admitted to police that defendant had planned the robbery that led to the victim's death, defendant was a willing participant in the robbery and shooting; consequently, the evidence was sufficient to find defendant guilty of felony murder, armed robbery, and possession of a firearm during the commission of a crime. Branchfield v. State, 287 Ga. 869, 700 S.E.2d 576 (2010).
Evidence sufficient to support convictions of murder, aggravated assault, armed robbery, burglary, and possession of firearm in commission of felony. Baty v. State, 257 Ga. 371, 359 S.E.2d 655 (1987).
Rational trier of fact could have found the defendant guilty of murder, aggravated assault and possession of a firearm during the commission of a crime beyond a reasonable doubt. Walden v. State, 264 Ga. 92, 441 S.E.2d 247 (1994).
Evidence was sufficient to enable a rational trier of fact to find appellant guilty of malice murder, felony murder, aggravated assault and possession of a firearm by a convicted felon in the shooting deaths of two victims. Burtts v. State, 269 Ga. 402, 499 S.E.2d 326 (1998).
Evidence was sufficient to convict defendant of malice murder, felony murder, aggravated assault, and possession of a firearm during the commission of a crime against a person because: (1) the codefendant jumped out of the car defendant was driving and told the victim and two other men to empty their pockets as the codefendant was robbing the victims and then the codefendant began shooting; and (2) the victim was shot in the head and later died. Thomas v. State, 275 Ga. 882, 572 S.E.2d 537 (2002).
Defendant found guilty of malice murder, aggravated assault, and possession of a firearm by a first offender probationer after the defendant fired a gun at a person, the bullet grazed the person, went through a wall, and killed another person. George v. State, 276 Ga. 564, 580 S.E.2d 238 (2003).
Although defendant testified about the victim's aggressive and dangerous tendencies, there was sufficient evidence to convict defendant of felony murder since there was evidence that: (1) defendant stabbed the victim in the back and the chest during the altercation; (2) one or two days before the stabbing, defendant had stated that the victim owed defendant money and would be dead by dark; and (3) the victim was found with only a cigarette lighter for a weapon. Salyers v. State, 276 Ga. 568, 580 S.E.2d 240 (2003).
When the evidence revealed that the defendant and others returned to a parking lot with the specific intent of ambushing a group of people who had earlier told the defendant not to speed and had thrown a beer bottle at the defendant's car, and when the defendant was found to be an accomplice of one who possessed a gun and fatally shot someone, there was sufficient evidence pursuant to the "party to a crime" law under O.C.G.A. § 16-2-20 to convict the defendant of felony murder in violation of O.C.G.A. § 16-5-1 and simple battery in violation of O.C.G.A. § 16-5-23.1. Smith v. State, 277 Ga. 95, 586 S.E.2d 629 (2003).
When the evidence established more than defendant's mere presence at the scene of the crimes, the evidence was sufficient to find defendant guilty beyond a reasonable doubt of felony murder and simple assault; although defendant was not indicted for conspiracy, the evidence also supported a conspiracy charge. Belsar v. State, 276 Ga. 261, 577 S.E.2d 569 (2003).
Eyewitnesses saw defendant standing by the door of the barber shop shooting repeatedly at the victim, who died from those wounds, and the police recovered the pistol from defendant that shot the victim; thus, the evidence was sufficient to enable a rational trier of fact to find defendant guilty beyond a reasonable doubt of malice murder, felony murder, and aggravated assault with a deadly weapon under O.C.G.A. §§ 16-5-1 and16-5-21. Roberts v. State, 276 Ga. 258, 577 S.E.2d 580 (2003).
Evidence that two defendants who were tried together chased a victim after an argument and that the victim died after one defendant shot the victim five times was sufficient to sustain both defendants' convictions for malice murder and other crimes. Jackson v. State, 278 Ga. 235, 599 S.E.2d 129 (2004).
Evidence was sufficient to allow the jury to find the defendant guilty of malice murder and possession of a firearm during the commission of an aggravated assault because: (1) one eye-witness testified to seeing the victim speaking to an occupant of a car, then hearing a shot, seeing the victim try to peddle the bicycle away, and then falling to the ground; (2) another witness testified that on the night of the shooting, the defendant told the witness that the defendant shot a person on a bicycle and that the witness helped the defendant dispose of a gun in a lake; (3) a third witness testified that the defendant told the third witness that the defendant had shot and killed a person on a bicycle; and (4) the defendant made a videotaped statement during which the defendant admitted to shooting the victim. Roberts v. State, 278 Ga. 541, 604 S.E.2d 500 (2004).
In addition to the second codefendant's testimony, the state showed that, shortly after the murder, the defendant was in possession of the victim's cab, that the victim's blood was found in the vehicle and on the defendant, and that the defendant made incriminating admissions to others; thus, the evidence was sufficient to authorize a rational trier of fact to find proof beyond a reasonable doubt of the defendant's guilt of malice murder, armed robbery, aggravated assault, hijacking a motor vehicle, and possession of a firearm during the commission of a felony. Wicks v. State, 278 Ga. 550, 604 S.E.2d 768 (2004).
Defendant's convictions for malice murder and possession of a firearm during commission of a felony were supported by sufficient evidence, including identification of the defendant as the shooter by the victim's sibling, who was with the victim at the time of the incident, as well as the testimony of two witnesses who had spoken with the defendant and the codefendant immediately prior to the shooting and who identified the defendant. Hunt v. State, 279 Ga. 3, 608 S.E.2d 616 (2005).
Sufficient evidence supported the defendant's convictions for malice murder, felony murder, aggravated assault, and possession of a firearm during the commission of a felony where, inter alia: (1) the shooting victim was the love interest of the defendant's former love interest; (2) the victim had beaten the defendant earlier; (3) witnesses saw defendant at the scene of the killing, in daylight from about two feet away, saw the defendant draw a gun, and then heard shots; (4) a witness saw one perpetrator run from the scene; (5) the witnesses gave the police a description of the shooter, and within hours, independently identified the defendant as the perpetrator from a photo lineup; and (6) a few days later, the defendant admitted to a former love interest that the defendant was the shooter. Wallace v. State, 279 Ga. 26, 608 S.E.2d 634 (2005).
Evidence was sufficient to support the defendant's convictions of malice murder and concealing the death of another because: (1) the defendant's nephew testified that the defendant asked for help with "a body"; (2) the nephew noticed blood stains, evidence of a struggle, and a smell of bleach at the defendant's home; (3) the victim's body was on a bed in the defendant's home; (4) the nephew helped the defendant roll the body in a rug and take the body to a nearby dumpster where they deposited it; (5) authorities later determined that the victim sustained blunt force trauma to the head and died of ligature strangulation; and (6) a search of the defendant's home revealed the victim's blood stains and evidence of a struggle. Ware v. State, 279 Ga. 17, 608 S.E.2d 643 (2005).
Evidence supported the defendant's conviction for malice murder and robbery by force because the defendant strangled the victim while the defendant and codefendant were riding in the victim's car and put the body in the trunk; the defendant told a friend that there were three people in the car, the codefendant told the friend that the codefendant and the defendant killed the victim, and they showed the friend the body; the codefendant took money from the victim's sock, and the codefendant and the defendant hid the body, retrieved the body, and buried the body, and the defendant was driving the victim's car when the defendant was involved in an accident, which led to the discovery of the body. Shelton v. State, 279 Ga. 161, 611 S.E.2d 11 (2005).
Evidence supported the defendant's conviction of malice murder, possession of a firearm during the commission of a crime, and concealing the death of another; the victim was shot in the back of the head with the defendant's gun in the woods behind the defendant's family's property, the victim's body was found in a landfill two days later, the defendant's friend confided to a friend that the defendant shot the victim and then called the friend to help dispose of the body, the friend confessed to the friend's role in the concealment and secretly videotaped a conversation with the defendant about the shooting and, on the tape, the defendant bragged about killing the victim and demonstrated how the defendant did it. Bragg v. State, 279 Ga. 156, 611 S.E.2d 17 (2005).
Evidence supported the defendant's conviction for malice murder and possession of a firearm during the commission of a felony because the defendant admitted taking money from the victim, arranging for a meeting with the victim, and not returning the money before shooting the victim. Flanders v. State, 279 Ga. 35, 609 S.E.2d 346 (2005).
Evidence was sufficient to support a conviction for felony murder, voluntary manslaughter, and aggravated assault, as an eyewitness testified that the defendant was the only person to pull out a weapon in a confrontation at a nightclub, that the defendant fired a weapon at the victim, who had previously struck the defendant's love interest, and at two other victims who were attempting to leave. Rodriguez v. State, 274 Ga. App. 549, 618 S.E.2d 177 (2005).
Evidence was sufficient to support the defendant's convictions for malice murder and aggravated assault, in violation of O.C.G.A. §§ 16-5-1 and16-5-21, respectively, as well as for possession of a firearm during a felony, because the defendant was identified by multiple witnesses as having fatally shot the victim; the defendant and some friends joined the victim's basketball game and when their team lost, the defendant took the bet money, pulled out a gun, and started firing at the victim and the teammates. Agee v. State, 279 Ga. 774, 621 S.E.2d 434 (2005).
Evidence was sufficient to support the defendant's conviction for felony and malice murder, and aggravated assault, in violation of O.C.G.A. §§ 16-5-1 and16-5-21, as well as possession of a firearm conviction, because the defendant helped a sibling retaliate against the victim, who had previously sold the sibling fake drugs, by going to the victim's place of work, fatally shooting the victim multiple times, and planting fake drugs on the body; the defendant's claim that the defendant was in another state at the time of the incident was refuted by a copy of the defendant's criminal history which showed that the defendant was out on bail just days before the incident, as well as testimony from the victim's roommate. Copprue v. State, 279 Ga. 771, 621 S.E.2d 457 (2005).
Defendant's convictions for malice murder, burglary, robbery, aggravated assault, and concealing the death of another were supported by sufficient evidence because: (1) the defendant broke into the office where the victim was living; (2) the defendant hit the victim several times on the head and body with a pair of pliers; (3) the defendant choked the victim until the victim was dead; (4) the defendant took the victim's credit card and driver's license; and (5) the defendant disposed of the victim's body. Young v. State, 280 Ga. 65, 623 S.E.2d 491 (2005).
When a bloody jogging suit belonging to the defendant was found at the defendant's love interest's house with the victim's blood on the suit, witnesses described the defendant wearing that same jogging suit after the shooting, and a .380 pistol was found hidden in a cinder block at the defendant's love interest's house that matched the type of gun used to kill the victim, the defendant's convictions for malice murder and other related crimes with regard to the killing of the defendant's love interest's neighbor was upheld on appeal since such circumstantial evidence was sufficient to allow the jury to have found the defendant guilty beyond a reasonable doubt. Hooks v. State, 280 Ga. 164, 626 S.E.2d 114 (2006).
Convictions for kidnapping, aggravated assault, and malice murder, in violation of O.C.G.A. §§ 16-5-40,16-5-21, and16-5-1, respectively, were supported by sufficient evidence after the defendant got into a dispute with the victim over a drug deal, the defendant and the codefendants kidnapped the victim, drove the victim to a remote area, and shot the victim several times. Morris v. State, 280 Ga. 179, 626 S.E.2d 123 (2006).
Evidence that three unarmed people went to talk to that defendant about rumors that the defendant wanted to harm them, and that, when one approached the defendant, the defendant fired five shots in their direction, killing one of them, was sufficient to support convictions for felony murder and aggravated assault. Traylor v. State, 280 Ga. 400, 627 S.E.2d 594 (2006).
Malice murder and attempted arson convictions were upheld as: (1) the evidence presented showed that an attempted arson was inextricably linked to the victim's murder, and the jury was authorized to find beyond a reasonable doubt that the defendant was guilty; (2) the admission of two handwritten documents that the defendant had penned was proper as their prejudicial impact did not outweigh their probative value; and (3) the trial court did not abuse the court's discretion in determining that any prejudicial impact of a religious prayer asking for strength, and an expression of uncertainty as to what "makes me tick," did not outweigh the probative value of the evidence. Fortson v. State, 280 Ga. 376, 628 S.E.2d 104 (2006).
Convictions of malice murder and possession of a firearm during the commission of a felony were supported by sufficient evidence, including the proper introduction of the pretrial statement of a witness who identified the defendant as the shooter in the murder, and the pretrial statement of a second witness who claimed that the defendant had admitted that the defendant had killed someone five hours after the fatal shooting and that the witness had frequently seen the defendant carrying the sort of pistol that fired the fatal shots. Cummings v. State, 280 Ga. 831, 632 S.E.2d 152 (2006).
Convictions of murder, aggravated assault, and possession of a firearm by a convicted felon were supported by sufficient evidence showing that while the victim was in the process of buying drugs from a third party, the defendant approached the driver's side of the victim's car, demanded the victim's money, and shot the victim several times; the seller of the drugs testified that the seller had observed the defendant carrying a gun, and both the codefendant and another witness identified the defendant as the shooter. Major v. State, 280 Ga. 746, 632 S.E.2d 661 (2006).
Evidence supported a defendant's conviction for malice murder and aggravated assault as: (1) when a cab driver arrived to pick up a passenger at the defendant's apartment, the defendant was waiting outside and told the cab driver to wait while the defendant returned to the apartment; (2) the cab driver heard several gunshots immediately before the defendant ran to the cab and told the cab driver to "go"; (3) during the ride, the cab driver observed drops of blood on the defendant's clothing and overheard the defendant state in a cell phone call that the defendant "got the guy who owed (the defendant) money"; (4) the police traced the phone call to the defendant's relative; and (5) the defendant later confided to a friend that the defendant shot and killed someone, that the defendant left in a cab, and that the defendant made a phone call with the cab driver's phone. Puga-Cerantes v. State, 281 Ga. 78, 635 S.E.2d 118 (2006).
Evidence supported a defendant's convictions for malice murder, felony murder, aggravated assault with a deadly weapon, and possession of a firearm during the commission of a felony as: (1) the defendant repeatedly followed the victim in and out of a restaurant, and eventually chased the victim from the restaurant, firing at the victim at least nine times; (2) after the shooting, the defendant jumped into a silver truck and sped away; (3) the victim died as a result of the gunshot wounds; and (4) two witnesses identified the defendant from photographic lineups. Waters v. State, 281 Ga. 119, 636 S.E.2d 538 (2006).
Evidence supported a defendant's conviction of malice murder and possession of a firearm during the commission of a felony as: (1) believing that the victim was involved in the murder of the defendant's brother five months before the incident, the defendant told a first witness that the defendant intended to kill the victim and offered to pay the first witness for information as to the victim's whereabouts; (2) a second witness saw the defendant and two other men approach the victim, call out the victim's name, and open fire on the victim as the victim ran away; (3) the victim died from gunshot wounds; (4) the second witness had met the defendant and, after the shooting, the second victim noticed the defendant's gold teeth, and identified the defendant by the defendant's street name from a photographic lineup and in court; and (5) the defendant threatened to kill the second witness if the second witness testified against the defendant. Woodruff v. State, 281 Ga. 235, 637 S.E.2d 391 (2006).
Evidence supported a defendant's conviction for malice murder, aggravated assault, and possession of a firearm in the commission of a felony as: (1) during a van ride, the defendant fought with an assault victim, striking the assault victim in the head with a gun, and was told to stop hitting the assault victim; (2) a gunshot was heard and the passengers saw a murder victim lying dead and the defendant holding the gun; (3) the gun was inside the murder victim's mouth when the gun was fired; (4) the assault victim and another passenger fled; and (5) the defendant and an accomplice dumped the body in an industrial area. Johnson v. State, 281 Ga. 229, 637 S.E.2d 393 (2006).
Evidence supported a defendant's conviction for malice murder and assault as: (1) the defendant told a first witness that the defendant had killed a man; (2) the defendant had tried to sell the victim's car; (3) the defendant admitted to police that the defendant had the key to the victim's car; and (4) the defendant told a fellow prisoner that the defendant and an accomplice strangled the victim, beat the victim, stabbed the victim, cut the victim's throat, and tore out the victim's fingernails. Richard v. State, 281 Ga. 401, 637 S.E.2d 406 (2006).
Defendant's malice murder and aggravated assault convictions were upheld on appeal, as supported by sufficient evidence, including that: (1) the defendant, along with two codefendants, fired numerous shots into a crowd in an attempt to shoot several men with whom they had been feuding; (2) one of the codefendants later told a friend that the three committed the crimes; (3) one of the defendant's friends saw the defendant with a shotgun shortly after the shooting, the shotgun had red shells, and the defendant told the friend that the gun had been used in the shootings; and (4) forensic evidence later confirmed that red shotgun shells were found at the scene. Adkins v. State, 281 Ga. 301, 637 S.E.2d 714 (2006).
Evidence was sufficient to support the convictions of murder, armed robbery, aggravated assault, burglary, and a statutory violation, all in violation of O.C.G.A. §§ 16-5-1,16-8-41,16-5-21,16-7-1, and16-11-106, respectively, when the defendant and the codefendant went to a club with the intention of robbing someone, met the victim and drove the victim back to the victim's home, beat and fatally stabbed the victim, and upon leaving the victim's apartment, took some of the victim's belongings. Willoughby v. State, 280 Ga. 176, 626 S.E.2d 112 (2006).
Sufficient evidence supported convictions of felony murder, armed robbery, aggravated assault, possession of a firearm by a convicted felon, and possession of a firearm in the commission of a felony when, upon pulling into an apartment complex to turn around and ask for directions, the victims were approached by the defendant and another man, defendant pulled out a gun and told the victims to "give it up," when one of the victims hesitated, defendant shot the victim, defendant then stole that victim's money and jewelry, and later, the gunshot victim died; the second victim described defendant, who was wearing a specific jersey at the time of the crimes, and two witnesses who knew defendant testified that defendant robbed and shot the victim while wearing that jersey. Davis v. State, 280 Ga. 442, 629 S.E.2d 238 (2006).
Defendant's conviction for malice murder, possession of a firearm during the commission of a crime, and possession of a firearm by a convicted felon was supported by the evidence as: (1) the defendant told the defendant's love interest that the defendant knew who had taken the defendant's drugs from a motel room and that the defendant was going to get the drugs; (2) the defendant and an accomplice forced someone with something "glossy" on the person's forehead; (3) the defendant told the driver to stop at a secluded area so that the defendant could put the person "somewhere safe"; (4) the defendant threw a gun from a bridge on the return; (5) the defendant instructed the driver to clean blood from the car's backseat; and (6) the defendant told the defendant's love interest that the defendant had killed the person who had the defendant's drugs and told a cell mate that the defendant had shot a person. Walker v. State, 281 Ga. 157, 635 S.E.2d 740 (2006), cert. denied, 552 U.S. 833, 128 S. Ct. 60, 169 L. Ed. 2d 50 (2007).
Defendant's convictions for malice murder, aggravated battery, burglary, and violation of the Georgia Controlled Substances Act by unlawfully possessing cocaine and marijuana were supported by sufficient evidence; the defendant walked into a neighbor's house with a butcher knife in each hand and stabbed two people, knives found in the woods behind the defendant's apartment matched the descriptions of those used in the stabbings and had deoxyribonucleic acid matching the defendant's, two knives were missing from a knife block in the defendant's apartment, marijuana and cocaine were found in the apartment, the defendant told a friend that the defendant had "hurt some people really bad," and three eyewitnesses identified the defendant as the assailant. Swanson v. State, 282 Ga. 39, 644 S.E.2d 845 (2007).
Evidence was sufficient to support the three defendants' convictions of malice murder, aggravated assault, and possession of a firearm during the commission of a felony since: the victims were shot from a gold SUV and the first defendant owned a gold SUV; the first defendant, who had been robbed the day before, stated that the first defendant "wanted to straighten about the money"; the third defendant met the first two defendants at a hotel and transferred weapons into the gold SUV; the first defendant pointed to a person outside the hotel and said "Let him have it"; and the third defendant later wondered if one of the victims was dead. Stokes v. State, 281 Ga. 875, 644 S.E.2d 116 (2007).
Evidence supported the defendant's convictions of malice murder, two counts of felony murder, kidnapping with bodily injury, two counts of armed robbery, and aggravated battery after: the defendant had been seen fleeing the victim's home in a car registered to the defendant; the defendant told the defendant's spouse to discard the defendant's bloody clothing; the defendant sought treatment at a hospital after being shot during the crimes; and the defendant had initiated conversations in which the defendant described the actions of the defendant's companions in discarding guns used in the crimes and offered to reveal the names of the companions in exchange for not being charged with murder. Davis v. State, 281 Ga. 871, 644 S.E.2d 113 (2007).
Evidence supported the defendant's convictions of malice murder, felony murder, armed robbery, aggravated assault, and possession of a firearm during the commission of a felony after the defendant went to the victim's laundromat and waited until the victim opened a change machine, pointed a gun at the victim's head and ordered the victim to put the money in a bag, told the victim, "Hell, yeah, I'll kill you," and shot the victim multiple times; eyewitnesses, including two who knew the defendant, identified the defendant as the perpetrator. Cooper v. State, 281 Ga. 760, 642 S.E.2d 817 (2007).
Evidence, which included uncontroverted testimony from an eyewitness who saw a defendant order a store employee into the street shortly before the employee was shot, the testimony of two other eyewitnesses, and the fact that calls had been made from the employee's stolen cellular phone to the defendant's mother was sufficient to enable a rational trier of fact to find the defendant guilty beyond a reasonable doubt of malice murder, armed robbery, and a number of other associated crimes. Horne v. State, 281 Ga. 799, 642 S.E.2d 659 (2007).
Evidence sufficient to support convictions of malice murder, felony murder, and possession of a knife during the commission of a felony, based on the defendant's telephone call to a friend admitting to the murder; and expert medical testimony which explained how the killing was committed and how the defendant "worked up the courage" to inflict the deep cut that stretched across the victim's throat, severing the victim's left carotid artery and right internal jugular vein, causing the victim to bleed to death; further, the defendant had sufficient notice of the specific deadly weapon allegedly used for purposes of the felony murder charge by the language in count three. Jones v. State, 282 Ga. 47, 644 S.E.2d 853 (2007).
Knife used as murder weapon.
- There was sufficient evidence to support a defendant's convictions of malice murder, felony murder, armed robbery, aggravated assault, attempted burglary, and possession of a firearm by a convicted felon; in addition to testimony by a codefendant and eyewitness testimony by the victim's spouse, the victim's blood was on the defendant's clothes, the defendant had the victim's keys, and the knife used to kill the victim and a pistol were discovered near the site of the defendant's arrest in some woods near the scene of the crime. Walker v. State, 282 Ga. 774, 653 S.E.2d 439 (2007), cert. denied, 129 S. Ct. 481, 172 L. Ed. 2d 344 (2008), overruled on other grounds, No. S10P1859, 2011 Ga. LEXIS 267 (Ga. 2011).
Because sufficient evidence was presented to support the defendant's aggravated assault and felony murder convictions, and there was plenty of evidence to authorize the jury to find that the defendant lied in order to support a self-defense claim, sufficient evidence was presented to uphold the convictions on appeal. Bradley v. State, 283 Ga. 45, 656 S.E.2d 842 (2008).
Defendant's convictions were upheld on appeal because sufficient testimonial, identification, and physical evidence was presented to support the defendant's convictions of malice murder, felony murder, and possession of a firearm during the commission of a crime so that the jury could reject the defendant's self-defense claim. Rivers v. State, 283 Ga. 1, 655 S.E.2d 594 (2008).
Evidence supported convictions of malice murder, aggravated assault, burglary, and possession of a firearm during the commission of a crime. The victim had been struck twice in the head with a pistol, strangled, and shot twice in the head; the victim's wallet and keys were missing; and the defendant, who told police where the wallet could be found, admitted shooting the victim and claimed that the defendant had done so after the victim tried to hug and kiss the defendant and things got "ugly." Brown v. State, 283 Ga. 327, 658 S.E.2d 740 (2008).
Evidence supported the defendant's convictions for malice murder, felony murder, aggravated assault, armed robbery, possession of a firearm by a convicted felon, and possession of a firearm during the commission of a crime. The four victims were found dead in two hotel rooms from gunshot wounds to the back of their heads; identification documents belonging to the four victims were found in the defendant's car; there was expert testimony that the defendant's gun had been used to kill the victims; the defendant's baseball cap contained one victim's deoxyribonucleic acid; there was evidence that the defendant and two friends used three victims' tickets to attend a football game after the victims were murdered; the defendant was identified as being in an elevator with one victim; the defendant was seen leaving the hotel with one victim's cooler; and a duffle bag belonging to one victim was in the defendant's car when the defendant was arrested on weapons charges. Dawson v. State, 283 Ga. 315, 658 S.E.2d 755 (2008), cert. denied, 129 S. Ct. 169, 172 L. Ed. 2d 122 (2008).
Evidence was sufficient to enable a rational trier of fact to find the defendant guilty of malice murder and possession of a firearm during the commission of a crime because both of the defendant's accomplices placed the defendant at the scene of the crime and provided a detailed account of the murder. Lawrence v. State, 286 Ga. 533, 690 S.E.2d 801 (2010).
Exclusion of victim's prior bad acts.
- Defendant's felony murder and aggravated assault convictions were both upheld on appeal, as evidence of the victim's prior violent acts was properly excluded, given that at the time of the confrontation with the defendant, the victim was no longer the aggressor, and the defendant failed to show prejudice resulting from the admission of a knife that was not used in the altercation, into evidence, and in fact, the knife had been removed from the scene by police before the incident involving the defendant and the victim occurred. Milner v. State, 281 Ga. 612, 641 S.E.2d 517 (2007).
Felony murder based on arson.
- Sufficient evidence was presented to support a finding of felony murder based on arson in the first degree as O.C.G.A. § 16-7-60(a) did not require that a defendant personally set the fire or possess ignitable materials and the defendant knowingly damaged property by adding tires to the fire; additionally, based on the defendant's statements at the scene, the defendant was aware that human life might be endangered under § 16-7-60(a)(5) because the defendant indicated that the defendant knew someone was inside the building. Vega v. State, 285 Ga. 32, 673 S.E.2d 223 (2009).
Conviction of murder, aggravated assault, and possession of firearm by convicted felon justified.
- See Brooks v. State, 250 Ga. 739, 300 S.E.2d 810 (1983).
Evidence was sufficient to enable a rational trier of fact to find appellant guilty of murder, aggravated assault with a deadly weapon, and possession of a firearm by a convicted felon beyond a reasonable doubt. Hall v. State, 264 Ga. 85, 441 S.E.2d 245 (1994).
Conviction of murder rather than voluntary manslaughter justified.
- See Bryant v. State, 250 Ga. 874, 301 S.E.2d 881 (1983).
Evidence sufficient to support conviction for offense of felony murder.
- See Bethea v. State, 251 Ga. 328, 304 S.E.2d 713 (1983); Middlebrooks v. State, 253 Ga. 707, 324 S.E.2d 192 (1985); Appling v. State, 256 Ga. 36, 343 S.E.2d 684 (1986); Thomas v. State, 256 Ga. 176, 345 S.E.2d 350 (1986); Huston v. State, 256 Ga. 276, 347 S.E.2d 556 (1986); Hunter v. State, 256 Ga. 372, 349 S.E.2d 389 (1986); Jefferson v. State, 256 Ga. 821, 353 S.E.2d 468 (1987), cert. denied, 511 U.S. 1046, 114 S. Ct. 1577, 128 L. Ed. 2d 220 (1994); Shealey v. State, 257 Ga. 437, 360 S.E.2d 266 (1987); Zackery v. State, 257 Ga. 442, 360 S.E.2d 269 (1987); Webber v. State, 257 Ga. 533, 361 S.E.2d 145 (1987); Delay v. State, 258 Ga. 229, 367 S.E.2d 806, cert. denied, 488 U.S. 850, 109 S. Ct. 132, 102 L. Ed. 2d 105 (1988); Jones v. State, 258 Ga. 249, 368 S.E.2d 313 (1988); Anderson v. State, 258 Ga. 278, 368 S.E.2d 508 (1988); Martin v. State, 258 Ga. 300, 368 S.E.2d 515 (1988); Blackwell v. State, 259 Ga. 810, 388 S.E.2d 515 (1990); Stoudemire v. State, 261 Ga. 49, 401 S.E.2d 482 (1991); Griffin v. State, 199 Ga. App. 646, 405 S.E.2d 877 (1991), cert. denied, 199 Ga. App. 906, 405 S.E.2d 877 (1991); Weaver v. State, 262 Ga. 196, 415 S.E.2d 640 (1992); Jackson v. State, 263 Ga. 468, 435 S.E.2d 442 (1993); Lark v. State, 263 Ga. 573, 436 S.E.2d 1 (1993); Smiley v. State, 263 Ga. 716, 438 S.E.2d 75 (1994); Scott v. State, 276 Ga. 195, 576 S.E.2d 860 (2003); Edwards v. State, 282 Ga. 259, 646 S.E.2d 663 (2007); Spiller v. State, 282 Ga. 351, 647 S.E.2d 64 (2007), cert. denied, 552 U.S. 1079, 128 S. Ct. 812, 169 L. Ed. 2d 612 (2007); Curinton v. State, 283 Ga. 226, 657 S.E.2d 824 (2008); Carter v. State, 283 Ga. 76, 656 S.E.2d 524 (2008).
The state's evidence was sufficient to authorize a rational trier of fact to find proof of appellant's guilt of felony murder beyond a reasonable doubt. Leavitt v. State, 264 Ga. 178, 442 S.E.2d 457 (1994).
Evidence was sufficient to enable a rational trier of fact to find each defendant guilty of malice murder, felony murder predicated on aggravated assault, and aggravated assault. Whitaker v. State, 269 Ga. 462, 499 S.E.2d 888 (1998).
Evidence was sufficient to support the defendant's conviction of felony murder of the defendant's spouse, where the record revealed that the spouse had seen the defendant's car at the defendant's paramour's house and let the defendant know that the spouse was aware the defendant was there, that the spouse never carried a gun, that the defendant had repeatedly physically abused the spouse and had pointed a gun at the spouse previously, and that the defendant's explanation that when the defendant entered their home the spouse was pointing a gun at the defendant which accidentally went off was contradicted by the fact that the gun had to be cocked in order to be shot and that the spouse had never owned a gun nor been the aggressor in their disputes. Jones v. State, 276 Ga. 253, 577 S.E.2d 560 (2003).
Evidence was sufficient to support conviction of malice murder, felony murder, burglary, aggravated assault, kidnapping with bodily injury, and possession of a firearm during the commission of a felony after the defendant: (1) planned the crimes, and armed the defendant with a gun and handcuffs; (2) broke into the defendant's in-laws' house after severing their phone line; (3) shot and killed the defendant's father-in-law and wounded the defendant's mother-in-law while they lay in bed; (4) handcuffed the defendant's bleeding mother-in-law to the mother-in-law's nine-year-old child and left them tethered to a bed rail in a room with the mother-in-law's dead spouse and the defendant's two-year-old child; and (5) abducted the defendant's estranged spouse and the spouse's 17-year-old sibling to a mobile home where the defendant made them take showers while the defendant watched, and then raped them both. Sallie v. State, 276 Ga. 506, 578 S.E.2d 444, cert. denied, 540 U.S. 902, 124 S. Ct. 251, 157 L. Ed. 2d 185 (2003).
Evidence was legally sufficient to support the defendant's felony murder conviction, as it showed that the defendant and an accomplice entered a convenience store, that one of them shot the clerk to death while the other stole cigarettes, that police received a tip leading to the arrest of the defendant and an accomplice, and that the defendant admitted going to the store to rob it and to being present while the accomplice shot the clerk. Williams v. State, 276 Ga. 384, 578 S.E.2d 858 (2003).
Evidence was sufficient to convict defendant of causing the victim's death while committing an aggravated battery against the victim, in violation of O.C.G.A. §§ 16-5-1(c) and16-5-24, because defendant was seen walking toward the residence defendant shared with the victim, after a neighbor had called the police to report a disturbance there, carrying a gas can that appeared to be heavy, and, therefore, not empty, after which the victim was seen on the porch of the residence, in flames, and defendant, who was sitting on the porch, refused the requests of passersby attempting to give the victim assistance by providing a blanket to smother the flames, which caused the victim's death shortly thereafter. Lowe v. State, 276 Ga. 538, 579 S.E.2d 728 (2003).
Evidence that showed that a victim died from a gunshot wound to the chest, that police found the victim's property on the defendant when the defendant was arrested, and that witnesses heard the shots and saw the defendant running away from the scene of the shooting was sufficient to sustain the defendant's convictions for malice murder, armed robbery, and possession of a firearm during the commission of a crime, and the trial court did not err when it gave the jury an Allen charge during the defendant's trial or because it did not instruct the jury on involuntary manslaughter as a lesser included offense. Johnson v. State, 278 Ga. 136, 598 S.E.2d 502 (2004).
Evidence that the defendant fatally shot the victim during a scuffle in a robbery attempt and told the police that the defendant was shot by a robber was sufficient to support the defendant's conviction for felony murder, aggravated assault, making a false statement to law enforcement officers, and giving a false name to law enforcement officers. Sampson v. State, 279 Ga. 8, 608 S.E.2d 621 (2005).
Evidence was sufficient to support the defendant's conviction for malice murder, felony murder during the commission of a kidnapping, and kidnapping because the defendant refused to turn a car around or to stop and let the victim exit the car; after the victim grabbed the steering wheel and fled the car, the defendant fatally shot the victim. Pruitt v. State, 279 Ga. 140, 611 S.E.2d 47, cert. denied, 546 U.S. 866, 126 S. Ct. 165, 163 L. Ed. 2d 152 (2005).
There was sufficient evidence to support a conviction of felony murder in violation of O.C.G.A. § 16-5-1, as well as possession of a weapon in the commission of a crime when the defendant purchased the gun three months earlier from a man the defendant did not know, told the man that the defendant should not have been in possession of the firearm because of the defendant's status as a convicted felon, and later fatally shot the victim with the gun. Shepherd v. State, 280 Ga. 245, 626 S.E.2d 96 (2006), overruled on other grounds by McElrath v. State, 2020 Ga. LEXIS 127 (Ga. 2020).
Felony murder conviction was supported by sufficient evidence that, after the victim confronted the defendant about a comment made to the victim's wife, the defendant stabbed the victim to death; witnesses saw the defendant fighting with the victim, saw the defendant fold up a knife after the victim fell, and the defendant admitted to stabbing the victim. Williams v. State, 280 Ga. 297, 627 S.E.2d 32 (2006).
Sufficient evidence supported convictions of murder, felony murder, and possession of a firearm during the commission of a crime after the defendant confessed to an officer that the defendant shot and killed the victim and expert testing of blood on one of the defendant's shoes established that the blood matched the victim's DNA; the jury was free to reject the defendant's claim at trial that a third party shot the victim in the course of an unprovoked attack on the defendant. Glover v. State, 280 Ga. 476, 629 S.E.2d 249 (2006).
Defendant's convictions of murder, felony murder, armed robbery, burglary, possession of a firearm during the commission of an armed robbery, and possession of a firearm during the commission of a burglary were supported by sufficient evidence that, the day before the three murder victims were found shot in the head, the defendant borrowed the defendant's sibling's car to visit one of the victims, who owed the defendant money, the defendant admitted going to the victims' home twice on the day of the murders, but stated that the victims were not home during either visit, neighbors heard gunshots around the home at approximately 7:30 P.M., near the last time that the two younger victims were heard from, and again at 10:00 P.M. that evening, when the older victim returned home for the day, a number of items stolen from the victims' home at the time of the murders were subsequently found in a dumpster next to a storage locker the defendant shared with a love interest, the items were contained in plastic bags which had the defendant's fingerprints on them, and the plastic bags came from a roll of trash bags found in the trunk of the car which the defendant borrowed on the day of the murders. Griffin v. State, 280 Ga. 683, 631 S.E.2d 671 (2006).
Felony murder conviction was upheld on appeal as supported by: (1) the admission of sufficient evidence; (2) a photo of the victim which was not overly gruesome and inflammatory; (3) the trial court's proper denial of evidence of the victim's character; and (4) despite an error in denying admission of provocation evidence that error was deemed harmless and did not contribute to the verdict. McWilliams v. State, 280 Ga. 724, 632 S.E.2d 127 (2006).
Convictions of felony murder, possession of a firearm during the commission of a crime, and possession of a firearm by a convicted felon were supported by sufficient evidence showing that, during an argument involving the defendant and the two victims, the defendant told one of the victims to go get the victim's guns, adding that the defendant had guns, the victim went to the victim's vehicle and retrieved two handguns, approached with arms crossed and a gun in each hand, and the defendant took a gun out of the waistband of the defendant's pants and started shooting, wounding one victim and killing the other victim. McKee v. State, 280 Ga. 755, 632 S.E.2d 636 (2006).
Defendant's conviction for felony murder was affirmed as the evidence supported the conviction since: (1) the victim was fatally shot in the eye during an argument with the defendant; (2) the defendant threw the gun into a lake while taking the victim to the hospital; and (3) the defendant initially blamed the victim's injury on a drive-by shooting and then on a family acquaintance, but ultimately, at trial, claimed the shooting was due to an accident that occurred when the defendant was trying to un-jam a handgun. Peterson v. State, 280 Ga. 875, 635 S.E.2d 132 (2006).
Sufficient evidence supported the defendant's convictions of two counts of felony murder under O.C.G.A. § 16-5-1, armed robbery under O.C.G.A. § 16-8-41, aggravated assault under O.C.G.A. § 16-5-21, possession of a firearm during the commission of a felony under O.C.G.A. § 16-11-106, and possession of a firearm by a first offender probationer under O.C.G.A. § 16-11-131; two witnesses testified that the defendant had told them that the defendant shot the victim, and one of the witnesses testified that the defendant stated that the shooting occurred during a robbery, the defendant discarded a gun that was later found to be the murder weapon while fleeing police on another crime, and the defendant admitted to police that the murder weapon was the defendant's, that the defendant stole $100 from the victims, and that the defendant shot the murder victim. Chenoweth v. State, 281 Ga. 7, 635 S.E.2d 730 (2006).
Evidence supported a defendant's conviction of felony murder, aggravated assault, and possession of a firearm during the commission of a felony as: (1) the defendant told the victim that the defendant was going to shoot the victim and then the defendant shot the victim in the stomach, argued with the victim some more, and shot the victim again; (2) the victim never admitted cheating on the defendant; (3) after the second shot, the defendant and a friend took the victim to a hospital in a car; (4) while en route, the defendant persisted in the defendant's efforts to get the victim to admit to cheating on the defendant; and (5) the defendant wiped down the revolver and threw it out of the car. Durham v. State, 281 Ga. 208, 636 S.E.2d 513 (2006).
Defendant's felony murder conviction was upheld on appeal, given: (1) the sufficiency of the state's testimonial evidence; (2) that trial counsel was not ineffective in failing to properly advise the defendant of a plea offer or by failing to make meritless objections; and (3) the trial court's prompt and pointed curative instruction after an inadvertent placement of the defendant's character into evidence did not warrant a mistrial. Hunter v. State, 281 Ga. 526, 640 S.E.2d 271 (2007).
Because a sufficient foundation was presented to support the admission of a witness's voice identification testimony, and "prior difficulties" evidence was properly admitted, the defendant's felony murder and possession of a firearm during the commission of a crime convictions were upheld on appeal. Withers v. State, 282 Ga. 656, 653 S.E.2d 40 (2007).
Evidence was sufficient to support the defendant's felony conviction murder under circumstances in which, after an argument between the victim, who was the defendant's brother, and their father, the defendant was called to come to the father's home, the defendant and the victim argued outside the house in the street, the defendant threatened the victim, and then hit the victim, knocking the victim to the ground; the victim next got up and began running away from the defendant towards a stop sign at the end of the street, and the defendant shot the victim as the victim ran away, hitting the victim in the back of the head and killing the victim. Carter v. State, 285 Ga. 565, 678 S.E.2d 909 (2009).
Right to counsel for re-sentencing.
- Defendant's re-sentencing without court-appointed counsel to represent the defendant was affirmed as the trial court was simply instructed to merge the defendant's armed robbery conviction into the defendant's felony murder conviction; as the trial court had no discretion in the matter and its re-sentencing of the defendant was a ministerial act, the re-sentencing was proper. Robertson v. State, 280 Ga. 885, 635 S.E.2d 138 (2006).
Felony murder conviction held reasonable despite self-defense contention.
- After the victim threw the hot contents of a frying pan at the defendant and the defendant then drew a knife from the defendant's blouse and stabbed the victim numerous times, but there were no eyewitnesses to the stabbing other than the victim and defendant, and the defendant testified the defendant stabbed the victim in self-defense in the belief that the victim was reaching into the victim's pocket for a weapon and that, while the defendant had meant to "hurt" the victim, the defendant had not intended to kill the victim, a rational trier of fact could have found the defendant guilty of the crime of felony murder beyond a reasonable doubt by causing the victim's death while committing the felony of aggravated assault. Henderson v. State, 256 Ga. 486, 350 S.E.2d 236 (1986).
Though the victim was approaching the defendant when the defendant fatally shot the victim at a distance of three feet, the evidence was sufficient to convict the defendant of aggravated assault and felony murder despite the defendant's claim of self-defense as the defendant decided to confront the victim and beat the victim up, retrieved a gun from a car, and lied to police about the victim's pulling a knife before the shooting. McNeil v. State, 284 Ga. 586, 669 S.E.2d 111 (2008).
Evidence sufficient for establishing malice.
- Evidence showing that defendant took a perverse and sadistic pleasure in the killing of other human beings was clearly sufficient for finding malice aforethought. Harper v. State, 251 Ga. 183, 304 S.E.2d 693 (1983), appeal dismissed, 286 Ga. 216, 686 S.E.2d 786 (2009).
Rational trier of fact could have found defendant guilty of malice murder beyond a reasonable doubt. Massengale v. State, 264 Ga. 51, 441 S.E.2d 238 (1994).
Evidence, including money, a weapon and the victim's personal effects and testimony as to defendant's behavior, was sufficient to support defendant's conviction for malice murder. Jenkins v. State, 269 Ga. 282, 498 S.E.2d 502, cert. denied, 525 U.S. 968, 119 S. Ct. 416, 142 L. Ed. 2d 338 (1998).
Conspirator liability.
- Defendant's conviction of malice murder, O.C.G.A. § 16-5-1, was supported by sufficient evidence; the state did not have to show that the defendant actually shot the victims, as the fact that the defendant and others conspired to commit the crime allowed any of the conspirators to be found guilty of the murders. Jones v. State, 279 Ga. 854, 622 S.E.2d 1 (2005).
Evidence sufficient for conviction of voluntary manslaughter.
- See Harper v. State, 182 Ga. App. 760, 357 S.E.2d 117 (1987).
Double jeopardy did not prohibit retrial of kidnapping.
- Defendant could be retried on a kidnapping charge under O.C.G.A. § 16-5-40(b) after the defendant was acquitted of felony murder under O.C.G.A. § 16-5-1(c) and a mistrial was declared on the underlying felony of kidnapping; the jury could have based its acquittal on the felony murder charge on factors other than the defendant's participation in the crimes that preceded the homicide. State v. Lambert, 276 Ga. App. 668, 624 S.E.2d 174 (2005).
Double jeopardy not found when one conviction based on federal charges.
- Fact that the defendant had been convicted in federal court of possession of a firearm under 18 U.S.C. § 922 did not bar a felony murder prosecution in state court on double jeopardy grounds as the state had to prove facts in the felony murder case that were not required to be proved in the federal case. Moreover, the federal offense, which required that a firearm be possessed in and affecting interstate commerce, was not within the concurrent jurisdiction of Georgia and under O.C.G.A. § 16-1-8(c) did not bar a subsequent prosecution for felony murder predicated on the underlying firearm possession charge. Marshall v. State, 286 Ga. 446, 689 S.E.2d 283 (2010).
Subsequent prosecution barred by double jeopardy.
- State's re-prosecution of the defendant for felony murder was barred by double jeopardy after the jury found the defendant guilty of the voluntary manslaughter of the same victim because the jury was given a full opportunity to return a verdict on the felony murder charge, which the jury did; although no judgment of conviction or sentence was entered on the jury's verdict of guilt on the felony murder charge, the defendant was placed in jeopardy of conviction of that charge in the first trial and could not, consistent with the Fifth Amendment's double jeopardy clause, be placed at risk of conviction again. Williams v. State, 288 Ga. 7, 700 S.E.2d 564 (2010).
Evidence sufficient for murder and rape conviction.
- See Robinson v. State, 258 Ga. 279, 368 S.E.2d 513 (1988).
Evidence was sufficient to convict the defendant of the rape and murder of a victim found next to a truck parked at a tire store because the defendant, who was homeless, lived and slept in the truck and had slept there the night before, DNA evidence confirmed the defendant had sex with the victim within 48 hours of the victim's death, and the defendant had raped other women in motor vehicles, including the truck at the tire store. Willis v. State, 304 Ga. 122, 816 S.E.2d 656 (2018).
Convictions as aider and abettor proper despite lack of personal involvement.
- Despite the defendant's contention that the crimes against a stabbing victim were solely committed by the codefendant, pursuant to O.C.G.A. § 16-2-20(a) ample evidence existed to conclude that the defendant either committed the crimes or was a party to the crimes, including that both the defendant and the codefendant drove to the stabbing victim's home, that victim was stabbed to death, and the victim's wallet and checkbook were stolen so that both the defendants could have money to buy more drugs. Odom v. State, 279 Ga. 599, 619 S.E.2d 636 (2005).
Rule against mutually exclusive verdicts did not apply.
- The rule against mutually exclusive verdicts did not apply to the verdicts returned by the jury of guilty on a charge of malice murder, but not guilty by reason of insanity, on a charge of aggravated assault. Taylor v. State, 282 Ga. 502, 651 S.E.2d 715 (2007).
Guilty verdicts for involuntary manslaughter and as a party to the felony murder of the victim while in the commission of aggravated assault of the victim with a blunt object were not mutually exclusive as the verdicts were supported by evidence of separate acts, committed at separate moments during the night the victim was killed. Kipp v. State, 294 Ga. 55, 751 S.E.2d 83 (2013).
Because conspiracy was a continuing crime and because defendant continued the defendant's gang activities after turning 18 years old, 18 U.S.C. § 1963(a) allowed an enhancement to a life sentence due to a jury finding that, when defendant was 16 years old, defendant also committed a murder in connection with the Racketeer Influenced and Corrupt Organizations Act (RICO) violations, even though the murder charge had been dismissed because the Attorney General had not certified the case to be tried in federal court as would have been required under 18 U.S.C. § 5032 of the Juvenile Delinquency Act; under O.C.G.A. § 16-5-1(d), the murder was "racketeering activity" for purposes of 18 U.S.C. 1961(1) and in the context of a RICO conspiracy, because defendant continued the defendant's participation in the activities of the conspiracy past the age of majority, the crimes committed while the defendant was a minor could be considered for both determining guilt and the defendant's sentence. United States v. Flores, 572 F.3d 1254 (11th Cir. 2009), cert. denied, U.S. , 130 S. Ct. 1108, 175 L. Ed. 2d 921 (2010).
Aggravating circumstance found beyond a reasonable doubt.
- Evidence adduced at trial was sufficient to authorize a rational trier of fact to find beyond a reasonable doubt the existence of statutory aggravating circumstances because the jury found the existence of the following statutory aggravating circumstances beyond a reasonable doubt; the murder was committed while the defendant was engaged in the commission of the capital felony of armed robbery, and the murder was outrageously or wantonly vile, horrible, or inhuman in that it involved depravity of mind: (1) the defendant initially attacked the victim, who was disabled, in the confined area of a bathroom, where the defendant struck the victim multiple times shortly after the victim emerged from the shower; (2) the defendant continued the attack on the victim even as the victim fell to the floor; (3) the evidence showed that the defendant struck the victim in the head with a hammer and a metal stool at least 12 to 14 times; and (4) the defendant acted for the purpose of obtaining money the victim had just received from cashing the victim's disability check. Arrington v. State, 286 Ga. 335, 687 S.E.2d 438 (2009), cert. denied, 131 S. Ct. 112, 178 L. Ed. 2d 69 (U.S. 2010).
2. Children as Victims
When a child born alive afterward dies by reason of bruises inflicted on the child, before birth, by the beating of the child's mother, the offense is murder. Ranger v. State, 249 Ga. 315, 290 S.E.2d 63 (1982).
Evidence insufficient for murder of baby.
- Defendant's conviction for felony murder of the baby was not supported by sufficient evidence as there was no proof that the murder of the adult victim proximately caused the baby's death. Walker v. State, 296 Ga. 161, 766 S.E.2d 28 (2014).
Evidence sufficient for murder of infant child.
- Evidence was sufficient to permit a rational trier of fact to find that a female defendant's infant son was born alive, had a separate and independent existence from the defendant, was murdered by the defendant, and the body subsequently concealed by the defendant, all beyond a reasonable doubt. Life v. State, 261 Ga. 709, 410 S.E.2d 421 (1991).
Trial court did not err in denying the codefendant's motion for a directed verdict of acquittal because the circumstantial evidence the state presented was sufficient to authorize a rational trier of fact to find the codefendant guilty beyond a reasonable doubt of the malice murder of a girlfriend's child; both the girlfriend and the codefendant were with the child during the time period within which the fatal injuries were believed to have been inflicted upon the child. Smith v. State, 290 Ga. 428, 721 S.E.2d 892 (2012).
Sufficient evidence of malice in death of a child.
- Sufficient evidence supported a malice murder conviction arising from the death of an 18-month-old child because: (1) the defendant took the child into a bathroom of a house; (2) a witness testified that the child was fine before the defendant took the child into the bathroom; (3) after 10 minutes, the defendant came out and asked the witnesses to call9-1-1; (4) the child was taken to a hospital and pronounced dead; (5) a paramedic testified, inter alia, that the child had large, unusual bruises on the child's abdomen, chest, and back; and (6) a doctor concluded that the child's death was caused by severe internal injuries that could only have been caused by significant blunt force. McMiller v. State, 278 Ga. 706, 606 S.E.2d 247 (2004).
Cruelty to child as underlying felony in felony murder.
- There was sufficient evidence to support a conviction of felony murder, with cruelty to a child in the first degree as the underlying felony. The defendant was the child's sole caregiver from 9:30 A.M. to 3:30 P.M. on October 30, the date that the child's parent came to pick up the child and found the child unresponsive; a neighbor denied the defendant's claim that the neighbor had said that the child's other parent had shaken the child the day before; and a forensic pathologist testified that had the injuries been inflicted before 7:00 A.M. on October 30, the child would not have been acting normally when the child was dropped off at the defendant's home, as testified to by the child's relatives. Bostic v. State, 284 Ga. 864, 672 S.E.2d 630 (2009).
Death of a baby.
- Evidence was sufficient to enable a jury to find the defendant guilty of murder, felony murder, cruelty to children, and aggravated battery for the death of the defendant's baby because the defendant admitted to a number of actions consistent with the fatal injuries suffered by the baby; the actions the defendant took against the baby and the resulting injuries were reflected in the autopsy findings. Stokes v. State, 289 Ga. 702, 715 S.E.2d 81 (2011).
Testimony by the state's medical expert that the child's malnutrition materially contributed to the child's death from battered child syndrome, the defendant's testimony that the defendant made sure there was food because the defendant believed it was the defendant's duty to provide food for the family, and the evidence that there was no food suitable for the child other than oatmeal in the house supported the jury's finding that the defendant was guilty of felony murder based on child cruelty. Brown v. State, 297 Ga. 685, 777 S.E.2d 466 (2015).
Beating child to death.
- Evidence showed the defendant was guilty of felony murder under O.C.G.A. § 16-5-1 and involuntary manslaughter under O.C.G.A. § 16-5-3 after beating the defendant's child to death together with the defendant's love interest where the defendant's child was struck at least 100 times and with such force that the fat beneath the child's skin was emulsified, entered broken capillaries, and clogged the vessels leading to the child's lungs, a process called fat embolization. Marshall v. State, 276 Ga. 854, 583 S.E.2d 884 (2003).
Striking a child resulting in death.
- Sufficient evidence supported a defendant's convictions of felony murder and cruelty to children where the defendant admitted striking the child multiple times on the night in question, causing the child to bleed, but denied striking the child with sufficient force to cause the injuries the child sustained; the child's parent testified that the bruises the parent found on the child's head and body in the morning had not been present the previous evening. Sauerwein v. State, 280 Ga. 438, 629 S.E.2d 235 (2006).
Post-autopsy photographs of children admitted.
- Defendant's malice murder and cruelty to children convictions were affirmed on appeal as post-autopsy photographs were properly admitted to assist the jury in understanding both the internal injuries and the cause of the victim's death, and sufficient and overwhelming evidence was presented that the victim's injuries were not accidental. Thomas v. State, 281 Ga. 550, 640 S.E.2d 255 (2007).
Evidence sufficient for malice murder, felony murder, and cruelty to children conviction.
- Evidence supported the defendant's convictions of malice murder, felony murder, and cruelty to children since: the victim had not experienced any unusual injuries prior to the time the defendant moved in with the victim's mother; the defendant was alone in the house with the victim and the victim's young brothers prior to the time the victim's head began to swell and at various times on the night the victim died; the defendant told a co-worker that the defendant was beating the victim and the victim's brothers; and the defendant also told an uncle that the defendant could not do anything with the victim and felt like punching the victim in the head as hard as the defendant could. Collum v. State, 281 Ga. 719, 642 S.E.2d 640 (2007).
Death of 15 month old child.
- Evidence supported the defendant's convictions of malice murder, felony murder, and cruelty to children with regard to the death of the defendant's 15-month-old child; although the defendant claimed to have not noticed anything wrong with the child until a codefendant said that the child was having difficulty breathing, the evidence authorized the jury to find that the victim was beaten so severely that the victim's pancreas and duodenum were ruptured, that two to four hours was the maximum time that occurred between the injuries and the victim's death, that the victim would have begun vomiting immediately after the fatal injuries were inflicted, and that the victim would have been in extreme pain. Jackson v. State, 281 Ga. 705, 642 S.E.2d 656 (2007).
Death of 18 month old child.
- Evidence was sufficient to convict the defendant of, inter alia, four counts of felony murder, one count of involuntary manslaughter, and one count of aggravated assault in connection with the abuse and resulting death of the 18-month-old victim because a forensic child pathologist reviewed the findings of the victim's autopsy and opined that the pooling of blood on the front of the victim's body was consistent with the victim's belly being pressed against an object like the mattress or pad of a crib; and the defendant saw the boyfriend spank the children on the night of the victim's murder and watched as the boyfriend pushed the victim's face into the crib. Kipp v. State, 294 Ga. 55, 751 S.E.2d 83 (2013).
Guilty of felony murder but not guilty of cruelty to children.
- In a trial for the murder of a five-year-old child, the felony murder conviction need not be set aside because a finding of not guilty of cruelty to children is allegedly inconsistent with a finding of guilty of felony murder when the underlying felony is cruelty to children, where there is no doubt that the evidence showed the elements of the underlying felony, cruelty to a child, and that the jury was authorized to find the defendant guilty of a felony murder. Robinson v. State, 257 Ga. 194, 357 S.E.2d 74 (1987).
Death of 3 year old child resulting from arson.
- Evidence was sufficient to support defendant's conviction for arson, felony murder, and aggravated assault, resulting from a fire set at a residence occupied by the defendant's sister-in-law, the sister-in-law's four children, and the sister-in-law's 12-year-old sibling where: (1) the defendant confronted the defendant's sister-in-law at the sister-in-law's home, alleging that the sister-in-law had stolen items from the defendant's mobile home; (2) a physical altercation ensued between the defendant and the sister-in-law; (3) the defendant retrieved a gasoline can from the defendant's car, poured gasoline onto the back door of the sister-in-law's home, and ignited it; and (4) the sister-in-law's three-year-old child died from the injuries sustained in the fire. Tarvin v. State, 277 Ga. 509, 591 S.E.2d 777 (2004).
Death of infant from shaking.
- The following evidence was sufficient to establish that the defendant acted with malice and thus supported the defendant's convictions of felony murder and the predicate felonies of aggravated battery, O.C.G.A. § 16-5-24(a), and first-degree child cruelty, O.C.G.A. § 16-5-70: 1) the defendant claimed the victim, a 16-month-old child who had been left in the defendant's care, became unresponsive and that the defendant shook the child in an attempt to revive the child; 2) a medical examiner testified that the victim died from head trauma; 3) the victim's 10-year-old sibling testified that the defendant had struck the victim in the past and had been yelling at the victim before the victim lost consciousness. Sears v. State, 290 Ga. 1, 717 S.E.2d 453 (2011).
3. The Elderly as Victims
Victim 74 years old.
- Malice murder conviction was supported by sufficient evidence that on the day of the crime, the defendant left work at 10:34 A.M., that the victim, who was a 74-year-old dental technician, was found beaten to death by police who responded to a9-1-1 call placed by the defendant at 4:53 P.M., that, based on sightings of the victim and telephone calls made to victim, the jury was authorized to find that the victim was murdered between 1:10 P.M. and 2 P.M., that the defendant was seen in the area wearing work clothes around noon and seen after 2 P.M. wearing shorts and sneakers, that the defendant was also seen carrying a trash bag that appeared to contain clothing, that a pair of work boots, spattered with the victim's blood, was discovered in the restroom at the plumbing company where the defendant worked, that, based on the testimony of two employees, the boots belonged to the defendant, and that the victim had been agitated because the defendant had failed to pay for dental plates the victim had made for the defendant. Kell v. State, 280 Ga. 669, 631 S.E.2d 679 (2006).
Evidence sufficient for killing elderly victim.
- Sufficient evidence supported convictions of malice murder and armed robbery when during an argument with the 79-year-old victim, the defendant struck the victim in the head several times with the victim's cane, causing the cane to break and an edge of the cane to cut the victim's neck, after which the defendant took the victim's wallet and car and drove to Atlanta. Harvey v. State, 284 Ga. 8, 660 S.E.2d 528 (2008).
Evidence was presented to the jury that elderly and bedridden patients such as the 82 year old victim often die as a result of pneumonia or infections that the patients develop during treatment, such as infections from a dislodged feeding tube. While the defendant blames the victim's caregivers for failing to notice in a timely manner that the victim's feeding tube had become dislodged, the evidence shows that it was because of the brain injuries inflicted upon the victim by the defendant that a feeding tube was required and that the victim was unable to inform anyone when the tube became dislodged. As a result, the evidence is sufficient to enable a rational trier of fact to find the defendant guilty beyond a reasonable doubt of felony murder. Dodson v. State, 292 Ga. 790, 741 S.E.2d 639 (2013).
4. Spouses or Lovers as Victims
Evidence sufficient for murder of lover/spouse.
- Denial of a motion for a directed verdict was not error since there was evidence which would authorize a rational trier of fact to find beyond a reasonable doubt that defendant, angered by the fact that defendant's lover was leaving, maliciously shot the lover in the back, thereby committing malice murder. Sanders v. State, 257 Ga. 239, 357 S.E.2d 66 (1987).
Evidence was legally sufficient to sustain defendant's conviction for malice murder as the evidence showed that defendant, who was romantically involved with the victim, was seen with the victim on the day of the murder, that defendant was seen by a neighbor running from the victim's home at a time when the neighbor smelled smoke, that the victim had been shot twice in the head at close range, that a gun defendant possessed on the day of the murder was the murder weapon, that defendant had asked a witness to hide or sell the gun, and that defendant admitted shooting someone and burning the person's house down. Parker v. State, 277 Ga. 439, 588 S.E.2d 683 (2003).
Hired to kill spouse.
- Evidence that a defendant was hired by a spouse to kill the other spouse, accepted a payment, acquired a gun, recruited a shooter, and drove the shooter to the victim's workplace, where the shooter shot the victim to death, was sufficient to support a jury verdict convicting the defendant of malice murder; the other participants in the plot pled guilty to charges arising from their roles and testified against the defendant at the trial. Green v. State, 281 Ga. 322, 638 S.E.2d 288 (2006).
Evidence was sufficient to enable a rational trier of fact to conclude beyond a reasonable doubt that the defendant was guilty of malice murder because the jury was authorized to find that the defendant met with the victim's husband and other codefendants on at least two occasions to discuss the murder of the victim, that the defendant accepted money from the husband prior to the murder, that the defendant instructed one of the codefendants on how to kill the victim, that the defendant drove to the victim's home with the husband and another codefendant on the morning of the murder, and that the defendant demanded and accepted money from the husband as compensation for the murder. Owens v. State, 286 Ga. 821, 693 S.E.2d 490, cert. denied, 131 S. Ct. 156, 178 L. Ed. 2d 93 (2010), overruled on other grounds by Shelton v. Lee, 2016 Ga. LEXIS 452 (Ga. 2016).
Evidence sufficient for death of lover.
- There was sufficient evidence to support the defendant's conviction of malice murder after the victim, the mother of the defendant's child, was shot in the head while riding in a truck with the defendant and the victim's adult son by another man; the son, who was driving, testified that he heard a loud click and a popping noise, and the victim rested her head on his shoulder and did not speak again, and the son continued to drive until the defendant told him to pull off the road. Lowery v. State, 282 Ga. 68, 646 S.E.2d 67, cert. denied, 552 U.S. 999, 128 S. Ct. 508, 169 L. Ed. 2d 355 (2007).
Death of spouse and spouse's new lover.
- Defendant's malice murder convictions, resulting from the death of the defendant's estranged wife and the wife's lover, were upheld on appeal as the state presented sufficient evidence as to the history of abuse between the defendant and the wife, the jury was not required to believe the defendant's alibi, and any objection to the state's alleged failure to show the required nexus between the existence of the wife's life insurance policies and a possible motive for the murders was waived. Tolbert v. State, 282 Ga. 254, 647 S.E.2d 555 (2007).
Self defense claim rejected in death of lover.
- There was sufficient evidence for the jury to find the defendant guilty of felony murder and of aggravated assault and to reject the defendant's self-defense claim; the defendant, who had broken up with the victim, followed the victim as the victim left defendant's apartment, stabbed the victim twice with a nine-inch knife when the victim turned to face defendant without the victim striking the defendant, pulling a weapon, or yelling at the defendant, and the defendant claimed that the defendant had retrieved the knife in self-defense, then followed the victim out of the apartment, down the stairs, and into a parking lot where the defendant stabbed the victim. Ganaway v. State, 282 Ga. 297, 647 S.E.2d 590 (2007).
Evidence sufficient for malice murder of spouse.
- Evidence supported a defendant's conviction of the malice murder of the defendant's spouse. The defendant admitted shooting the victim and stated that the victim shot at the defendant twice; a pistol found under the bed was too far from the victim for the victim to reach the pistol; there was minimal evidence of a struggle; the defendant showed no emotion when the victim was carried out and displayed other inappropriate behavior; and expert testimony showed that the victim was shot from at least three feet away while the victim was either kneeling or bent over. Muller v. State, 284 Ga. 70, 663 S.E.2d 206 (2008).
Evidence that the victim, the defendant's wife, was killed in the victim's bed, the defendant reported the shooting but was not at the house when police arrived, the gun was found under the pillow next to the victim, a crime scene technician testified that the shooter folded a pillow around the victim's head and shot the victim through the pillow, and testimony that the defendant was physically and emotionally abusive toward the victim was sufficient to support the defendant's conviction for malice murder. Smith v. State, 292 Ga. 620, 740 S.E.2d 158 (2013).
Accusations of an affair.
- Evidence was sufficient to convict the defendant of murder, felony murder, and possession of a knife during the commission of a crime when the defendant stabbed the victim, the defendant's spouse, in the chest with a butcher knife after the victim accused the defendant of having an affair. Although the defendant claimed at the scene that the defendant did not mean for the knife to go so far into the victim's body and that the stabbing had occurred by accident, the defendant later admitted at trial that the defendant tried to force the victim back with the knife when the defendant felt the knife penetrate the victim's body. Hudson v. State, 284 Ga. 595, 669 S.E.2d 94 (2008).
Shooting of paramour.
- There was sufficient evidence to convict defendant of felony murder after defendant was seen at a paramour's apartment with a gun in a book bag, a witness stated that defendant pointed the gun at the paramour's head and threatened to kill the paramour, the paramour was found shot dead a short time later, and defendant admitted firing the gun but claimed that the shooting was accidental. Jackson v. State, 276 Ga. 408, 577 S.E.2d 570 (2003), overruled by State v. Springer, 297 Ga. 376, 774 S.E.2d 106, 2015 Ga. LEXIS 487 (2015).
Prostitute as victim.
- Convictions for felony murder and aggravated assault with a deadly weapon, in violation of O.C.G.A. §§ 16-5-1 and16-5-21, were supported by sufficient evidence, including that the defendant and the codefendant were acting in concert, and the denial of the defendant's motion for a judgment of acquittal pursuant to O.C.G.A. § 17-9-1 was proper; the defendant argued with the victim, a prostitute, and refused to pay for the victim's services, prompting the victim to get a gun and fire a shot into the air, whereupon the defendant and a codefendant fired their guns back at the victim in a car leaving the area, and a bullet from the codefendant's gun killed the victim. Stinchcomb v. State, 280 Ga. 170, 626 S.E.2d 88 (2006).
Evidence sufficient for malice murder and other crimes in death of spouse.
- Evidence supported a defendant's conviction for malice murder, aggravated battery, and possession of a firearm during the commission of a felony as: (1) the defendant had threatened to kill the victim, who was seeking a divorce from the defendant; (2) the defendant shot the victim eight times with an AK-47 assault rifle, killing the victim; (3) in woods located approximately 10 miles from the crime scene, investigators found the defendant's car, a bag of the defendant's personal items, some of which had the defendant's name written on the items, and the defendant's AK-47 rifle and ammunition; and (4) the defendant admitted to firing this AK-47 many times at the victim's home at what the defendant described as an unknown assailant who shot at the defendant first. Thomason v. State, 281 Ga. 429, 637 S.E.2d 639 (2006).
One is never justified in taking life of an adulterous spouse or illicit lover.
- This is murder, and an instruction on justifiable homicide may not be given. Such homicides stand on same footing as any other homicides. However, the peculiar facts of a given case may suggest "passion" and "provocation" within the meaning of the voluntary manslaughter statute. Burger v. State, 238 Ga. 171, 231 S.E.2d 769 (1977); Phillips v. State, 255 Ga. 539, 340 S.E.2d 919 (1986).
RESEARCH REFERENCES
Am. Jur. 2d.
- 40A Am. Jur. 2d, Homicide, §§ 1 et seq., 36 et seq., 63 et seq.
C.J.S.- 40 C.J.S., Homicide, § 2 et seq.
ALR.
- Acquittal on charge as to one as bar to charge as to the other, where one person is killed or assaulted by acts directed at another, 2 A.L.R. 606.
Responsibility of persons participating in jail delivery for homicide committed by one of their number, 15 A.L.R. 456.
Homicide by unlawful act aimed at another, 18 A.L.R. 917.
Homicide by companion of defendant while attempting to escape from scene of crime as murder in first degree, 22 A.L.R. 850; 108 A.L.R. 847.
Homicide as affected by humanitarian motives, 25 A.L.R. 1007.
Death resulting from arson as within contemplation of statute which makes homicide in perpetration of felony murder in first degree, 87 A.L.R. 414.
Corpus delicti in prosecution for killing of newborn child, 159 A.L.R. 523.
Homicide: causing one, by threats or fright, to leap or fall to his death, 25 A.L.R.2d 1186.
Admissibility on behalf of accused in homicide case of evidence that killing was committed at victim's request, 71 A.L.R.2d 617.
Homicide: what constitutes "lying in wait,", 89 A.L.R.2d 1140.
Homicide: presumption of deliberation or premeditation from the circumstances attending the killing, 96 A.L.R.2d 1435.
Homicide by automobile as murder, 21 A.L.R.3d 116.
Mental or emotional condition as diminishing responsibility for crime, 22 A.L.R.3d 1228.
Homicide: criminal liability for death resulting from unlawfully furnishing intoxicating liquor or drugs to another, 32 A.L.R.3d 589.
Homicide based on killing of unborn child, 40 A.L.R.3d 444, 64 A.L.R.5th 671.
Application of felony-murder doctrine where the felony relied upon is an includible offense with the homicide, 40 A.L.R.3d 1341.
Homicide predicated on improper treatment of disease or injury, 45 A.L.R.3d 114.
Use of set gun, trap, or similar device on defendant's own property, 47 A.L.R.3d 646.
What felonies are inherently or foreseeably dangerous to human life for purposes of felony-murder doctrine, 50 A.L.R.3d 397.
What constitutes attempted murder, 54 A.L.R.3d 612.
Criminal liability where act of killing is done by one resisting felony or other unlawful act committed by defendant, 56 A.L.R.3d 239.
What constitutes termination of felony for purpose of felony-murder rule, 58 A.L.R.3d 851.
Homicide by withholding food, clothing, or shelter, 61 A.L.R.3d 1207.
What constitutes murder by torture, 83 A.L.R.3d 1222.
Spouse's confession of adultery as affecting degree of homicide involved in killing spouse or his or her paramour, 93 A.L.R.3d 925.
What constitutes such discriminatory prosecution or enforcement of laws as to provide valid defense in state criminal proceedings, 95 A.L.R.3d 280.
Judicial abrogation of felony-murder doctrine, 13 A.L.R.4th 1226.
Accused's right, in homicide case, to have jury instructed as to both unintentional shooting and self-defense, 15 A.L.R.4th 983.
Modern status of the rules requiring malice "aforethought," "deliberation," or "premeditation," as elements of murder in the first degree, 18 A.L.R.4th 961.
Propriety of manslaughter conviction in prosecution for murder, absent proof of necessary elements of manslaughter, 19 A.L.R.4th 861.
Validity and construction of statute defining homicide by conduct manifesting "depraved indifference,", 25 A.L.R.4th 311.
Admissibility of expert opinion stating whether a particular knife was, or could have been, the weapon used in a crime, 83 A.L.R.4th 660.
Application of felony-murder doctrine where person killed was co-felon, 89 A.L.R.4th 683.
Validity and construction of "extreme indifference" murder statute, 7 A.L.R.5th 758.
Admissibility, in homicide prosecution, of evidence as to tests made to ascertain distance from gun to victim when gun was fired, 11 A.L.R.5th 497.
Ineffective assistance of counsel: battered spouse syndrome as defense to homicide or other criminal offense, 11 A.L.R.5th 871.
Admissibility of evidence of prior physical acts of spousal abuse committed by defendant accused of murdering spouse or former spouse, 24 A.L.R.5th 465.
Homicide: liability where death immediately results from treatment or mistreatment of injury inflicted by defendant, 50 A.L.R.5th 467.
Admissibility of expert or opinion evidence of battered-woman syndrome on issue of self-defense, 58 A.L.R.5th 749.
Propriety of lesser-included-offense charge of voluntary manslaughter to jury in state murder prosecution - Twenty-first century cases, 3 A.L.R.6th 543.
Sufficiency of evidence to support homicide conviction where no body was produced, 65 A.L.R.6th 359.
Admissibility of suicide note in criminal proceedings, 13 A.L.R.7th 6.
Construction and application of "crime of violence" provision of U.S.S.G. § 2L1.2 pertaining to unlawfully entering or remaining in the united states after commission of felony offense, 68 A.L.R. Fed. 2d 55.
Offense of Committing Murder In Aid of Racketeering (VICAR) in Drug Enterprise under 18 U.S.C.A. § 1959, 47 A.L.R. Fed. 3d Art. 5.