Edwards v. State , 264 Ga. 131 ( 1994 )

Hunstein, Justice,

concurring specially.

While I agree that the majority has correctly stated the rule regarding the giving of a defendant’s requested charge on a lesser included offense, I cannot agree with its conclusion that the trial court erred, albeit harmlessly, by refusing Edwards’ request to charge on theft by taking as a lesser included offense of armed robbery. As noted in the majority’s opinion, Edwards did not testify in his own behalf. The only evidence upon which the majority relies to support the giving of the charge is Edwards’ unsworn custodial statement to the police which was paraphrased by the police officer testifying for the state. According to that testimony, Edwards admitted that he was guilty of the burglary, but denied that he was guilty of the “second charge,” i.e., the armed robbery; he further admitted that he and his companions broke into the apartment intending to steal drugs and money, but claimed they discovered the guns in the apartment. Nothing in Edwards’ statement, as testified to by the police officer, constituted a specific denial that he had used a gun or other weapon to rob the victim, nor was any other evidence, from which such an inference could be drawn, introduced at trial. There was, however, overwhelming eyewitness and victim testimony that Edwards held a gun on the victim and her infant son during the robbery. Edwards’ paraphrased remarks which were nothing more than a spontaneous and feeble attempt to exculpate himself of the serious crime of armed robbery simply do not rise to the level of even that slightest evidence sufficient to raise the lesser offense of theft by taking. (As the majority has noted, the trial court did give Edwards’ requested lesser included offense charge on robbery by intimidation.)

The rule as stated by the majority implies, I believe, that where even the slightest evidence supports the giving of the charge, that evidence must nevertheless be such that a reasonable inference of the commission of a lesser included offense may be drawn therefrom. However, as the majority has applied the rule in this case, it appears that any evidence may be regarded as sufficient if it could possibly generate such an inference, without regard to its reasonableness. Henceforward, a defendant who utters a general denial of the greater offense, coupled with a self-serving admission of some other lesser, but not included, offense, no matter how transparent the intent or unreliable the statement, will be entitled to a lesser included charge.

I am authorized to state that Presiding Justice Benham joins in this special concurrence. Spencer Lawton, Jr., District Attorney, Thomas M. Cerbone, David T. Lock, Assistant District Attorneys, for appellee.