Murray v. State , 295 Ga. 289 ( 2014 )

In the Supreme Court of Georgia
Decided: June 2, 2014
S14A0504. MURRAY v. THE STATE.
BENHAM, Justice.
Randy Grier Murray was convicted of malice murder and other offenses
arising out of the shooting death of Jerome “Tay” Barnett during a drug
transaction, he was sentenced to life without parole pursuant to OCGA § 17-10-
7 (b), and he appeals.1 For the reasons set forth below, we affirm.
1. Viewed in the light most favorable to the jury’s verdict, the evidence
shows that on the date of the shooting, both appellant and the victim were
registered as guests at an extended stay hotel in Fulton County. In its case-in-
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The crimes occurred on February 11, 2007. On May 11, 2007, a Fulton County grand jury
returned an indictment charging appellant with malice murder, felony murder (aggravated assault),
felony murder (possession of a firearm by a convicted felon), aggravated assault, possession of a
firearm during commission of a felony, and possession of a firearm by a convicted felon. The two
counts relating to possession of a firearm by a convicted felon were bifurcated from the jury trial.
Appellant was tried for the remaining counts by a jury October 6-8, 2009, and the jury found him
guilty on all counts. The trial court sentenced appellant to life without parole pursuant to OCGA §
17-10-7 (b) for malice murder. The two counts relating to possession of a firearm by a convicted
felon were dead docketed. Appellant moved for a new trial on October 13, 2009, which was
amended March 30, 2012. After a hearing, the trial court denied appellant’s motion for new trial by
order entered November 27, 2012. Appellant filed a timely notice of appeal, and the case was
docketed in this Court to the January 2014 term for a decision to be made on the briefs.
chief, the state presented testimony that, after appellant was arrested, and while
being transported to the jail, he made spontaneous statements to the transporting
officer that he went to the victim’s unit to purchase marijuana, that the dealer-
victim “started tripping,” and they fought. He further stated to the transporting
officer that during the fight he took the victim’s gun from him and shot him, and
that afterwards he jumped the fence, went into a wooded area, and hid the gun.
The state also called as a witness another person who was staying at the
residence hotel on the date of these events and who knew appellant from seeing
him at the hotel. That witness testified that in the early morning hours of the
day the shooting occurred, while he was driving his car, he saw appellant
walking down the street, recognized him as someone who lived at the hotel, and
picked him up. While in the witness’ car, appellant told the witness that the
victim had pulled a gun on him and that “he [appellant] did what he had to do.”
At the conclusion of the state’s case, appellant moved for directed verdict on the
ground that the evidence established a defense of self-defense which the state
had not disproved beyond a reasonable doubt, and the motion was denied.
Appellant asserts the trial court erred in denying his motion for directed verdict
at the close of the state’s case and also by denying his motion for new trial on
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the same ground.
“[A] person is justified in using force which is intended or likely to cause
death or great bodily harm only if he or she reasonably believes that such force
is necessary to prevent death or great bodily injury to himself or herself or a
third person or to prevent the commission of a forcible felony.” OCGA § 16-3-
21 (a). Citing to Andrews v. State, 267 Ga. 473 (1) (480 SE2d 29) (1997),
appellant asserts that when a defendant presents evidence of justification in
using deadly force, the state then bears the burden to disprove the defense
beyond a reasonable doubt. According to appellant, sufficient evidence to
establish his defense of self-defense was presented in the state’s case-in-chief.
Thus, appellant asserts, the state in this case was required to disprove self-
defense in its case-in-chief and failed to do so. Even assuming the evidence
presented by the state was sufficient to establish justification, however, an
appellate court, when reviewing a trial court’s ruling on a motion for directed
verdict in a criminal case, is not confined to a review of the evidence at the close
of the state’s case. See Black v. State, 261 Ga. 791, 796 (10) (410 SE2d 740
(1991). The entire evidence is to be examined, and so long as all the evidence
justifies the conviction under the appropriate standard, no error is shown by the
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denial of the motion for directed verdict. Id.Appellant took the stand and testified he was afraid because the victim
pointed a gun at him, but also that he was angry because the victim had cursed
him. Appellant testified that after the victim cursed at him for not having
sufficient funds to make the requested drug buy, the two engaged in a physical
altercation and that appellant believed he had to take the victim’s gun away from
him in order to get out alive. Appellant further testified that after he knocked
the gun out of the victim’s hands and the gun went off, “I got the gun; and I shot
him.” The state’s theory was that appellant felt embarrassed and disrespected
when the victim mocked and cursed appellant for being short of the money to
buy drugs and would not extend credit to him. The evidence showed the victim
was shot and killed by a .45 caliber Colt or Colt copy. The evidence further
showed that a bullet was discharged that went through the ceiling of the
apartment below. The bullet was recovered and it was also .45 caliber. The
victim, on the other hand, was known to carry a .25 millimeter handgun, and a
magazine to such a pistol was found in his room. Further, a neighbor testified
that, around the time of the events in question, he heard someone running past
his room from the direction of the victim’s unit and, between five and ten
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minutes later, he heard a gunshot. The neighbor peeked out the window and six
to eight minutes after the gunshot, he saw appellant walk by, “messing” with a
big black handgun, checking the chamber, and, the neighbor testified, appellant
had a scowl on his face. Based on the handle and how appellant was checking
the chamber, the neighbor thought it might be a .45 caliber semi-automatic, and
that it was not a revolver. The neighbor then saw appellant leave the complex
through the key-card controlled gate, and surveillance tapes showed appellant
leaving through this gate. Appellant, however, stated to the transporting officer
that after the shooting he jumped the fence and hid the gun in a wooded area.
The police searched but never found the murder weapon. Another witness saw
appellant at a poker game the night before the shooting and she testified he was
sporting an iron-colored or smoke grey handgun, and while she was not sure of
the size of the gun, it was the type of gun that had a clip and was not a revolver.
Pursuant to the standard set forth in Jackson v. Virginia, 443 U.S. 307 (99
SCt 2781, 61 LEd 2d 560) (1979), we find that the evidence was sufficient to
enable a rational trier of fact to find appellant guilty beyond a reasonable doubt
for malice murder. “It follows that the court did not err in denying [appellant’s]
motion for directed verdict of acquittal made at the conclusion of the State’s
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case-in-chief . . . .” Mangum v. State, 274 Ga. 573, 574 (1) (555 SE2d 451)
(2001). The jury was entitled to disbelieve appellant’s claim of self-defense.
See Allen v. State, 290 Ga. 743 (1) (723 SE2d 684) (2012). Likewise, the trial
court did not err in denying appellant’s motion for new trial on the ground that
the state failed to disprove appellant’s affirmative defense of self-defense
beyond a reasonable doubt.
2. As part of the jury instructions, the trial judge stated: “A crime is no
less punishable if committed against a bad person than if it were perpetrated
against a good person.” Appellant concedes this is a correct statement of the
law. He asserts, however, that given this was a killing arising out of a drug deal
in which the defense was self-defense, this statement represents an improper
comment on the evidence in violation of OCGA § 17-8-57.2 According to
appellant, this statement to the jury improperly implied appellant, as a
participant in the drug deal, was also a bad person, and improperly permitted the
2
Pursuant to OCGA § 17-8-57:
It is error for any judge in any criminal case, during its progress or in his charge to
the jury, to express or intimate his opinion as to what has or has not been proved or
as to the guilt of the accused. Should any judge violate this Code section, the
violation shall be held by the Supreme Court or Court of Appeals to be error and the
decision in the case reversed, and a new trial granted in the court below with such
directions as the Supreme Court or Court of Appeals may lawfully give.
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jury to infer that appellant’s right to defend himself was somehow reduced
under the “bad” circumstances of a drug deal.
We find no violation of OCGA § 17-8-57 in this case. The transcript
reflects that the trial court began its instructions by reading the counts of the
indictment. It then gave routine instructions on the presumption of innocence,
the state’s burden of proof, defendant’s lack of a burden, reasonable doubt,
direct and circumstantial evidence, credibility of witnesses, impeachment,
criminal intent, and the state’s burden to prove venue. The court then gave the
instruction the appellant now challenges: “A crime is no less punishable if
committed against a bad person than if it were perpetrated against a good
person.” Afterwards, the court gave the definitions of the offenses appellant
was accused of committing, and it charged on the defense of justification as well
as the state’s burden to disprove affirmative defenses. In charging on
justification and use of force, the court instructed: “The state has the burden of
proving beyond a reasonable doubt that the defendant was not justified.” When
asked, appellant’s counsel replied that he had no objections to the instructions.
The state requested the instruction that appellant now challenges, and it was a
correct statement of law. Crawley v. State, 137 Ga. 777 (2) (74 SE2d 537)
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(1912) (where evidence of the victim’s bad character was presented, this Court
found no error in the trial court’s charge that “it is the same offense to kill a bad
person as it is to kill a good person”).
As the trial court properly concluded in its order denying appellant’s
motion for new trial, the charge did not intimate that a crime had been
committed or that appellant was in any way responsible, nor did it negatively
reflect upon his self-defense claim. The fact that the trial court used the term
“punishable” did not invade the jury’s province, as the challenged statement did
not imply that appellant should be punished but simply instructed the jury not
to let the victim’s character influence their deliberations with respect to whether
appellant should be punished. Further, the challenged remark was not a
comment on the evidence and did not lessen the state’s burden to disprove
appellant’s defense of self-defense, as the trial court found. Consequently, it did
not violate OCGA § 17-8-57, as this code section “is only violated when the trial
court’s instruction assumes certain things as facts and intimates to the jury what
the judge believes the evidence to be.” (Citations and punctuation omitted.)
Jones v. State, 277 Ga. 36, 39 (4) (586 SE2d 224) (2003). Finally, the jury was
instructed not to construe any comment by the trial court as an expression of
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opinion upon the facts or evidence, the credibility of the witnesses, or upon the
guilt or innocence of the accused. Considering the charge as a whole, we find
no reversible error as a result of the complained-of statement by the trial court.
3. Appellant asserts he was denied due process by the trial court’s
allegedly incomplete and erroneous jury instruction on impeachment in that the
instruction failed to fully and properly instruct the jury on the various modes,
methods, and manners of impeachment. When the trial court read from the
written instructions that had been supplied to trial counsel after the jury
instruction conference, the court inadvertently omitted a page of the instructions
relating to impeachment of witnesses. The oral instructions on impeachment
started with:
If any attempt has been made in this case to impeach any witness by
proof of contradictory statement previously made, you must
determine from the evidence whether any such statements were
made.
The written instructions provided to the jury before they commenced
deliberations completed the instruction by including three determinations, not
just one, that the jury was required to make in order to find a witness was
impeached by a contradictory statement, along with a conclusion about the
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effect of such a finding, as follows:
(a) whether any such statements were made,
(b) whether such statements were contradictory to any statements
made on the witness stand, and
(c) whether such statements were relevant to the witness’s
testimony and to the case.
If you find that a witness has been successfully impeached by proof
of previous, contradictory statements, you may disregard that
testimony, unless it is supported by other creditable testimony. The
credit to be given to the balance of the testimony of the witness
would be for you to determine.
Once it was brought to the trial court’s attention that an incomplete charge on
impeachment of witnesses may have been given, appellant’s counsel acquiesced
in the decision that an oral recharge was unnecessary because the written
instructions to be supplied to the jury would be sufficient. In fact, the trial court
drew the error to the jury’s attention and directed them to the page number of
the written instructions on which the complete instructions on impeachment of
witnesses could be found. Appellant acknowledges that the written instructions
on witness impeachment that were supplied to the jury were proper and
complete. Nevertheless, appellant asserts that, because this is a life without
parole case, due process and fundamental fairness requires a jury to be properly
instructed orally by and from the trial judge with appellant and his counsel
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present in order to ensure a fair and impartial jury, and also asserts that the jury
should not have been required to rely upon the written charge. Despite trial
counsel’s acquiescence to the solution to the mistakenly incomplete oral
instructions, appellant asserts this is an issue for “plain error” analysis and that
a new trial is required.
Appellant’s due process argument, unsupported by authority, is
unpersuasive. Under these facts, the trial court did not err in concluding
appellant failed to show plain error in the impeachment charge given and
therefore in denying appellant’s motion for new trial. Appellant has failed to
show plain error under the four-pronged test adopted in State v. Kelly, 290 Ga.
29 (1) (718 SE2d 232) (2011), in that appellant has failed to show that “the
instruction was erroneous, the error was obvious, the instruction likely affected
the outcome of the proceedings, and the error seriously affects the fairness,
integrity, or public reputation of judicial proceedings.” Terry v. State, 291 Ga.
508, 509 (2) (731 SE2d 669) (2012). Here, the trial court’s oral and written
instructions, taken as a whole, adequately informed the jury of the permissible
and applicable methods of impeachment. See Miner v. State, 268 Ga. 67, 68 (3)
(485 SE2d 456) (1997) (trial court’s original oral instructions on the state’s
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burden of proof in general, along with the written recharge on voluntary
manslaughter that the state has the burden of proof that the murder is not
mitigated by provocation or prejudice, taken as a whole adequately informed the
jury of the state’s burden of proof). No reversible error is shown.
Judgment affirmed. All the Justices concur.
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