Murphy v. State

Eldridge, Judge,

concurring specially.

I concur fully with the majority’s opinion. I write separately because the “harmless error” analysis in Division 1 of the majority opinion is incomplete. Such analysis turns on the omission to charge in relation to “the trial record as a whole.” Bridges v. State, 268 Ga. 700, 703 (492 SE2d 877) (1997). Further, the “highly probable” standard used to evaluate the error in Division 1 is the wrong standard for the evaluation of error that has constitutional dimension. Here, the verdict was demanded as a matter of law, thus, there is no reasonable possibility that the error could have contributed to such verdict.

*588In most failures/refusals to charge a particular evidentiary principle (whether by ruling — or by inadvertence as in the instant case), the remaining jury charges do not “substitute for the explicit instructions that [defendant’s] lawyer requested” and which the court omits/ declines to give. However, the inquiry does not end there.

A harmless error inquiry “ ‘compels a judge to go beyond a first glance for affirmance or a fleeting glimpse for reversal. It compels him to exercise his mind in the exercise of his discretion, to go beyond the appearances of the result to an examination of what causal links there may be between error and the judgment.’ ” Johnson v. State, 238 Ga. 59, 61 (230 SE2d 869) (1976).

In that regard, “erroneous jury instructions are not judged in isolation, but rather are considered in the context of the entire jury charge and the trial record as a whole. . . . [A]n erroneous jury charge is not reversible unless it causes harm.” (Emphasis supplied.) Bridges v. State, supra at 703.

Moreover, while the failure to charge the principle in the omitted charge at issue has constitutional dimensions, the decision in Chapman v. California, 386 U. S. 18 (87 SC 824, 17 LE2d 705) (1967) rejected the contention that all such errors must always be considered harmful. “The court stated that there may be some constitutional errors which are so insignificant within the context of the factual situation of the particular case as to render the error harmless, not requiring the automatic reversal of a conviction.” (Emphasis supplied.) LaRue v. State, 137 Ga. App. 762, 764 (224 SE2d 837) (1976); Little v. State, 230 Ga. App. 803 (498 SE2d 284) (1998). “ ‘The question is whether there is a reasonable possibility that the [error] complained of might have contributed to the conviction.’ ” (Citation and punctuation omitted.) LaRue v. State, supra at 764; see also Johnson v. State, supra at 60; Baker v. State, 202 Ga. App. 892 (416 SE2d 295) (1992).

Thus, in light of the trial court’s error in omitting Murphy’s request to charge, the question in this case is whether there is a reasonable possibility that the jury gave “ ‘evidentiary weight to [Murphy’s] failure to testify’ ” so that such contributed to the verdict in the instant case. (Emphasis supplied.) Teague v. State, 160 Ga. App. 774, 776 (2) (287 SE2d 111) (1982), citing Carter v. Kentucky, 450 U. S. 288 (101 SC 1112, 67 LE2d 241) (1981). After a review of the evidence in this case in relation to the error, the answer is no.

Travis Murphy was indicted for murder after he shot and killed his cousin, Willie Harrison, with a J. C. Higgins 12-gauge pump action shotgun. The jury convicted Murphy of voluntary manslaughter. Murphy’s defense was justification and accident, and the trial court charged on both.

In support of his defense, Murphy called six defense witnesses, *589four of whom testified regarding two acts of aggression on the part of the victim. One of these witnesses testified that the victim picked up a knife during an argument with his stepmother. These witnesses did not testify as to the incident that led to the victim’s death, nor did they testify regarding acts of aggression by the victim toward Murphy. However, the defense also called a DFCS caseworker] who was permitted to testify extensively as to what Murphy told her about the shooting immediately after it happened: “He [Travis Murphy] told me that he was in the house playing a video game and his cousin came in and started screaming and yelling at him that he stole his eight dollars. Travis told him he did not steal the eight dollars. His cousin kept yelling and screaming, told Travis he was going to take the video game that Travis was playing and Travis told him, no, he wasn’t. At that point the cousin jerked Travis up and started pitching him around. There was some little kids in the room. Travis told the kids to leave the room. The cousin kept pushing Travis. At that point somehow Travis got a gun. He told the cousin to stop. The cousin kept coming towards him. He told him to stop or he would shoot and at that point the cousin told him, said, you better shoot to kill — you better shoot me and kill me because if you don’t I’m going to kill you or shoot you, something to that effect.” The DFCS worker testified that appellant Travis Murphy told her he was “scared” of the victim, because the victim was going to “get the gun away from him [Murphy] and shoot him.” The witness testified that Murphy “didn’t want to do it [shoot], but he [the victim] kept coming towards him.” (Emphasis supplied.)

During the State’s case-in-chief, Murphy’s statement to the police also was introduced: “[H]e said that he and the victim had been arguing for a few weeks and that he had gotten the shells to the gun sometime last week and put them in his bedroom. He stated the victim was a bully and had been hitting on him and had spit in his face the other day. He stated that when the argument happened today that the victim had been slapping him in the face and that when he, Mr. Murphy, went and got the gun that the victim told Mr. Murphy to go ahead and shoot him but that he, Mr. Murphy, thought about it and put the gun down and the argument continued. During one of the next times that Mr. Murphy picked up the gun the victim took it away from him and held it for awhile and then handed it back to the offender, Mr. Murphy and said shoot me. During the last time that Mr. Murphy had the gun the victim pushed him onto the couch and this caused the gun — caused Mr. Murphy to jerk and the gun went off.” (Emphasis supplied.)

The State also introduced Murphy’s statements to his mother made while he was on the telephone at the police station: “[H]e told his mother the he had in fact shot Travis [sic], that Travis [sic] had *590been spitting on him. That he had taken his [Nintendo game because the victim had accused the Defendant of taking some of his money.”

In addition, an eyewitness, a ten-year-old relative of both Murphy and the victim, testified regarding the shooting. The boy testified that Murphy and the victim were arguing. There was no pushing, shoving, or fist fight — “[t]hey were just yelling at each other,” Murphy left the living room and entered a bedroom closet to get the shotgun. When he returned to the living room with the shotgun, Murphy pointed it at the victim’s “middle” and shot him. There was no physical contact between the two. In that regard, the pathologist testified that the victim’s wound went from the middle of the abdomen to the back, as State’s Exhibit 4 also shows; the doctor testified that there was no evidence of upward movement of the weapon’s blast into the abdomen or chest cavity so as to support the idea that the weapon was fired from a sitting position on the couch into the victim who was standing above.

1. Here, Murphy did not “fail to testify” so as to make the omission of the challenged jury instruction reversible error. Indeed, Murphy was permitted to put his own testimony before the jury during the defense case-in-chief through the testimony of the DFCS caseworker], Further, he did not have to be cross-examined with regard thereto. The jury heard Murphy’s “side of the story” through Murphy’s own statement, introduced by Murphy. In such a scenario, there is no “ ‘danger that the jury [gave] evidentiary weight to [Murphy’s] failure to testify.’ ” (Emphasis supplied.) Teague v. State, supra at 776 (2).

2 .As a matter of law, the evidence demanded a verdict of guilty of homicide:1 (a) The evidence as presented by the State and the defense failed to establish the elements of a justification defense, and (b) the State’s evidence overwhelmingly established the elements of homicide.

OCGA § 16-3-21 (a) states: “A person is justified in threatening or using force against another when and to the extent that he reasonably believes that such threat or force is necessary to defend himself or a third person against such other’s imminent use of unlawful force; however, a person is justified in using force which is intended or likely to cause death or great bodily harm only if he reasonably believes that such force is necessary to prevent death or great bodily injury to himself or a third person or to prevent the commission of a *591forcible felony.” “Two elements must be present before the use of deadly force is justified under [OCGA § 16-3-21]: (1) the danger to either the actor or a third person must be imminent; and (2) the actor must reasonably believe that such force is necessary to prevent death or great bodily injury to himself or a third person.” (Emphasis supplied.) Coley v. State, 201 Ga. App. 722 (1) (411 SE2d 804) (1991).

Further, “[a] person shall not be found guilty of any crime committed by misfortune or accident where it satisfactorily appears there was no criminal scheme or undertaking, intention, or criminal negligence.” OCGA § 16-2-2.

(a) As a matter of law, the evidence presented by the State and the defense failed to establish the elements of self-defense or accident as a justification for the homicide.

(i) Under the evidence from both the State and the defense, Murphy’s ability to withdraw from the argument with his cousin, leave the living room in order to obtain the shotgun, and return to the living room in order to pick up the argument and ultimately shoot the victim precludes as a matter of law the notion that the shooting was “necessary,” an essential element of self-defense. Veasley v. State, 142 Ga. App. 863, 866 (237 SE2d 464) (1977); see also Love v. State, 194 Ga. App. 601 (391 SE2d 447) (1990).

(ii) Murphy’s statement to the DFCS worker, introduced by the defense, attempted to establish self-defense as a justification for the homicide of the victim. However, the statement as a matter of law failed to establish the elements thereof, i.e., that Murphy “reasonably believed” that he was in “imminent danger of death or receiving great bodily injury” so as to justify the homicide of the victim.

Murphy told the DFCS worker that the initial physical altercation between the two men consisted of yelling and “the cousin kept pushing Travis” because “[the cousin] told Travis he was going to take the video game that Travis was playing and Travis told him, no, he wasn’t.” Notably, at that point, Murphy never stated that he felt he was in imminent danger of death or receiving serious bodily harm from the victim’s actions, the essential elements of self-defense. Instead, at that point, Murphy was angry because the victim was pushing him around in an attempt to take his video game; justification goes to defense of self or others, not video games. “[S]elf-defense is not authorized unless the circumstances were such as to excite the fears of a reasonable man that his life was in imminent danger.” (Emphasis supplied.) Crawford v. State, 267 Ga. 543, 544 (480 SE2d 573) (1997).

In fact, Murphy’s statement to the DFCS worker shows that his fear of being in “imminent danger of death or receiving serious bodily injury,” the essential elements justifying the use of deadly force, arose only after Murphy got the shotgun to stop the victim from get*592ting his video game. In Murphy’s statement to the DFCS worker, the “necessity” for deadly force arose only because Murphy was “scared” that the victim would take the shotgun that Murphy brought into the argument over the video game and shoot Murphy with it. Thus, Murphy, himself, created any necessity for use of deadly force. Moreover, the victim’s verbal threats to kill Murphy came only after Murphy got the shotgun and thus could not provide a basis for Murphy to obtain the weapon.

“A person is not justified in using force under the circumstances specified in subsection (a) of this Code section if he . . . (2) [i]s . . . committing ... a felony.” (Emphasis supplied.) OCGA § 16-3-21 (b).

Under Murphy’s statement to the DFCS worker, the essential elements of self-defense, i.e., imminent fear of death or receiving great bodily injury, arose only after Murphy obtained the shotgun for use on the victim. Thus, Murphy created the necessity for use of deadly force during the commission of a felony on the victim, i.e., aggravated assault by obtaining and using a shotgun against the victim, thereby putting the victim in reasonable apprehension of receiving an immediate bodily injury. Under the law, Murphy’s statement to the DFCS worker — introduced by the defense — does not establish the elements of self-defense as justification for the homicide of the victim.

(iii) Murphy’s statement to the police, on the other hand, attempted to establish the defense of “accident,” the other justification defense charged by the trial court. Murphy claimed in his police statement that the shotgun for which he had bought shells earlier; that he loaded; that he retrieved during the argument; and that he pointed at the victim just “went off” when the victim pushed him onto the couch.

However, “[t]he defense of ‘accident’ is defined in OCGA § 16-2-2 as the absence of a criminal scheme or undertaking, intention, or criminal negligence. ‘Cocking and aiming a gun ... at (another). . . is an utter disregard for the safety of that person and constitutes criminal negligence,’ rendering the defense of accident inapplicable. New v. State, 260 Ga. 441, 442 (396 SE2d 486) (1990).” Stiles v. State, 264 Ga. 446, 448 (2) (448 SE2d 172) (1994).

In light of Murphy’s statement to the police that he obtained the shotgun shells “earlier last week” because of arguments with the victim; that he left the living room in order to obtain the loaded weapon; and that “at the time the gun was discharged[, he] was using it in [an] effort to [dissuade] the victim, the resulting homicide [did not constitute] accident.” Stiles v. State, supra at 448 (2). “Where, as in the instant case, it is shown by the evidence, and admitted in the defendant’s statement, that the homicide occurred by the discharge of a gun held by the accused which placed another in reasonable *593apprehension of immediately receiving a violent injury, even if the discharge of the gun was unintentional, the offense is murder; and in no view of such facts does it involve accident.” (Punctuation omitted; emphasis supplied.) Id. at 447-448 (2), citing Ford v. State, 202 Ga. 599, 602 (3) (44 SE2d 263) (1947); see also Grude v. State, 189 Ga. App. 901, 902 (377 SE2d 731) (1989). Accordingly, as a matter of law, Murphy’s statement to the police does not establish the elements of accident as a justification for the homicide of the victim.

Decided July 7, 1998 Reconsideration denied July 28, 1998 Thomason & Blackmon, Valerie C. Thomason, for appellant.

(iv) Finally, Murphy’s statement to his mother does not establish the elements of either self-defense or accident. Murphy did not tell his mother that he was afraid of the victim; that he thought he was in danger from the victim; that the victim pushed or hit him; or that the shotgun “went off.” Murphy’s statement to his mother was that Murphy deliberately shot the victim solely because the victim spit on him and took his video game.

Thus, even taking as true the evidence introduced by the State and the defense, as a matter of law, this evidence did not establish the elements of either self-defense or accident so as to justify the homicide of the victim.

(b) The State’s evidence of the elements of homicide was overwhelming.2 The State introduced eyewitness testimony that Murphy deliberately obtained a shotgun and shot the victim without any physical provocation or threats. The State introduced expert testimony from the doctor who performed the autopsy and the firearms expert which negated the possibility that the shotgun just “went off” as recounted by Murphy to the police. Further, the State introduced Murphy’s statements to his mother and the police in which Murphy admitted to the shooting but in which the elements of justification for the shooting were not established. Accordingly, the State’s evidence demanded a verdict of guilty of homicide, as a matter of law.

(c) Accordingly, in light of the above, the jury could not have given “evidentiary weight” to Murphy’s failure to testify so as to effect a verdict which was demanded as a matter of law. The failure to give the omitted jury charge, while error, was harmless.

Peter J. Skandalakis, District Attorney, Kevin W. Drummond, Assistant District Attorney, for appellee.

Voluntary manslaughter is a homicide mitigated by passion. Accordingly, such crime demonstrates the elements of what “would otherwise be murder” if not for the additional presence of “serious provocation sufficient to excite ... passion in a reasonable person.” See Title 16, Article 5, Homicide; OCGA § 16-5-2.

After three days of trial, the jury deliberated one hour before returning its verdict in the instant case.