Springer v. the State ( 2016 )

SECOND DIVISION
ANDREWS, P. J.,
MCFADDEN and RAY, JJ.
NOTICE: Motions for reconsideration must be
physically received in our clerk’s office within ten
days of the date of decision to be deemed timely filed.
http://www.gaappeals.us/rules
January 12, 2016
In the Court of Appeals of Georgia
A14A0598. SPRINGER v. THE STATE.
RAY, Judge.
Upon the first consideration of this case and relying upon the precedent of
Jackson v. State, 276 Ga. 408, 410-413 (2) (577 SE2d 570) (2003), this Court
reversed Roderick Lanier Springer’s convictions for aggravated assault and
involuntary manslaughter based on reckless conduct, and remanded the case for a new
trial, on the ground that these verdicts are mutually exclusive. Springer v. State, 328
Ga. App. 654 (762 SE2d 433) (2014) (“Springer I”).1 In State v. Springer, 297 Ga.
376 (774 SE2d 106) (2015) (“Springer II”), the Supreme Court of Georgia overruled
its holding in Jackson, supra, and reversed this Court’s decision in Springer I. We,
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This Court also reversed Springer’s conviction for possession of a firearm
during the conviction of a felony as a result of our reversal of the predicate felonies.
Id. at 657 (1), n. 5.
therefore, vacate our earlier opinion, adopt the opinion of the Supreme Court as our
own as it relates to the issue of mutually exclusive verdicts, and address Springer’s
remaining enumerations of error: that the trial court erred in refusing to charge the
jury on transferred justification and that the trial court erred in instructing the jury that
it could consider a witness’s level of certainty regarding identification. For the
following reasons, we affirm Springer’s convictions for aggravated assault,
involuntary manslaughter, and possession of a firearm during the conviction of a
felony.
The following pertinent facts were set forth in Springer I at 654:
The evidence presented at trial shows that, in the early morning hours
of August 2, 2002, there was a large crowd of people in the parking lot
of a Krystal restaurant when a fight broke out. Springer’s co-defendant,
Travis Barber, arrived with several friends during the melee. Shortly
after he arrived, Barber climbed on top of a car, pulled a gun out of his
pants, waved it around, and started shooting. There was also evidence
that Springer was in the crowd and shooting a gun. When police officers
arrived at the scene, they found a man lying between two cars in the
parking lot. The victim, Latorrious Mitchell, was an innocent bystander
who had been shot in the back and killed.
1. Springer first contends that the trial court erred by refusing to give his
requested jury instruction regarding transferred justification. See Crawford v. State,
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267 Ga. 543, 544 (1) (480 SE2d 573) (1997) (Under the principle of transferred
justification, “no guilt attaches if an accused is justified in shooting to repel an
assault, but misses and kills an innocent bystander”) (citations omitted). Springer
argues that the jury could have concluded, based upon the evidence, that he did not
intend to shoot Mitchell and that his conduct in shooting at Barber was in self-defense
because several witnesses testified that Barber fired the first shot. Therefore, Springer
argues, the jury could have found that he was justified in the shooting under the
transferred justification doctrine.
The record shows, however, that rather than give Springer’s requested charge
on transferred justification, the trial court instructed the jury on justification, self-
defense, mis-apprehension of fact and intent. It further charged the jury that accident
or speculation of guilt was insufficient to authorize a conviction. Further, at the
request of Springer’s counsel, the trial court did not charge the jury on transferred
intent. Although “the better practice may have been for the trial court to include a
specific charge on transferred justification, considered as a whole the court’s charge
made clear to the jury that it should acquit [Springer] if it determined he was justified
in firing his weapon, regardless of whom the bullet struck.” (Citation omitted.) Allen
v. State, 290 Ga. 743, 746 (3) (723 SE2d 684) (2012). See also Wallace v. State, 306
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Ga. App. 118, 120 (1) (701 SE2d 554) (2010) (In order for a refusal to charge to be
error, the request must be entirely correct and accurate; adjusted to the pleadings, law
and evidence; and not otherwise covered in the general charge). We find no abuse of
discretion. Id.
2. During the charge, the trial court instructed that the jurors could consider a
witness’s level of certainty regarding identification. Citing to Brodes v. State, 279 Ga.
435 (614 SE2d 766) (2005), Springer contends that such an instruction was harmful.
In Brodes, our Supreme Court disapproved of charging “jurors [that] they may
consider a witness’s level of certainty when instructing them on the factors that may
be considered in deciding the reliability of that identification.” Id. at 442.2 The State
concedes that such instruction was in error, but argues that such error was harmless
in the light of overwhelming evidence. We agree.
“[T]he giving of such an instruction does not require reversal when there is
other significant evidence corroborating the eyewitness identification.” (Citation and
punctuation omitted.) Bryson v. State, 316 Ga. App. 512, 517 (2) (729 SE2d 631)
2
While our Supreme Court disapproved the use of this instruction in Brodes
in a 4-3 decision, interestingly, this Court has held that it is not improper for an
eyewitness to testify about his degree of certainty or even for the State to elicit such
testimony from a witness. Best v. State, 279 GA 309 (630 S.E.2d 900) (2006); Clark
v. State, 285 Ga. App. 182 (645 SE2d 671) (2007).
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(2012). For example, “an eyewitness’s prior knowledge of the perpetrator militates
against a finding of harm from the giving of the ‘level of certainty’ language.”
(Citation and punctuation omitted.) Hamilton v. State, 291 Ga. App. 655, 656 (2) (662
SE2d 759) (2008) (trial court’s error in giving ‘level of certainty’ jury instruction was
harmless in light of the fact that three witnesses who knew defendant before the
shooting identified him as the shooter and one saw him holding the gun).
Here, Corey Turner, a witness to the incident, testified that he knew Springer
prior to the incident. Turner identified Springer as the shooter at trial and testified that
he saw Springer with a gun, but did not see him shoot it. Another witness, Dwayne
Kidd, testified at trial that he knew Springer prior to the incident and that he saw him
at the Krystal parking lot during the incident, but that he did not see Springer with a
gun. However, Kidd’s testimony was impeached through an earlier statement he gave
to an investigating officer that he did, in fact, see Springer holding and shooting a gun
during the incident. “Furthermore, the trial court instructed the jury about the State’s
burden of proving [Springer’s] identity as the perpetrator beyond a reasonable doubt
as well as other relevant considerations; therefore, the jury charge on level of
certainty was harmless as it is highly probable that it did not contribute to the
verdict.” (Citation and punctuation omitted.) Id. at 656-657 (2).
Judgment affirmed. Andrews, P. J., and McFadden, J., concur.
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