Shivers v. State
This text of 688 S.E.2d 622 (Shivers v. State) is published on Counsel Stack Legal Research, covering Supreme Court of Georgia primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.
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Tony Shivers was found guilty by a jury of felony murder and other offenses in connection with the shooting death of Allen Kilgore.1 Shivers appeals from the denial of his motion for new trial, claiming that the jury instruction was defective in two respects. Finding no error, we affirm.
[423]*423Viewed in a light most favorable to the verdict, the evidence established that Shivers and several others had congregated at the victim’s home to drink alcoholic beverages2 and watch football. Shivers and the victim began arguing in the presence of several witnesses. Shivers left the house exclaiming to onlookers that he would kill the victim. About an hour later, several witnesses observed him return to the house, armed with a shotgun. Shivers, a previously convicted felon, entered the house and fired the weapon, killing the victim with a single gunshot to the chest in the presence of the victim’s mother and brother. He then fled from the scene in a car.
At trial Shivers claimed that he acted in self-defense. He testified that after he argued with the victim, he walked out of the house and remained on the premises for about an hour; he reentered the house to purchase alcohol when he encountered the victim pointing a shotgun at him; Shivers then produced a shotgun which he had concealed during the evening under his clothing, shot the victim, and fled from the scene.
1. The evidence was sufficient for a rational trier of fact to reject Shivers’ justification theory and to find him guilty beyond a reasonable doubt of the crimes for which he was convicted. Jackson v. Virginia, 443 U. S. 307 (99 SC 2781, 61 LE2d 560) (1979). See also Lewis v. State, 283 Ga. 191 (1) (657 SE2d 854) (2008).
2. Shivers asserts that the trial court erred in failing to specifically charge the jury that self-defense may be a defense to the crime of possession of a firearm by a convicted felon.
In reviewing a challenge to the trial court’s jury instruction, we view the charge as a whole to determine whether the jury was fully and fairly instructed on the law of the case. See Spearman v. State, 267 Ga. 600 (5) (481 SE2d 814) (1997). Here, the court gave an instruction on use of force in self-defense verbatim from the Suggested Pattern Jury Instructions, fully explaining the affirmative defense of justification and the burden on the State to disprove it beyond a reasonable doubt. There is no requirement that the court instruct the law of self-defense separately as to each of the various crimes alleged in the indictment. See generally Holmes v. State, 273 Ga. 644 (3) (543 SE2d 688) (2001). We conclude that the charge, when taken as a whole, adequately and fairly conveyed the correct legal principles concerning self-defense. See Davenport v. State, 283 Ga. 171 (3) (656 SE2d 844) (2008).
3. Shivers also claims that the trial court erred in refusing to give his requested jury charge drawn from Ford v. State, 262 Ga. 602, 603 (1) (423 SE2d 255) (1992), specifically that “[a] status felony, [424]*424including the possession of a firearm by a previously convicted felon, is not inherently dangerous.” Ford, a convicted felon, accidentally discharged a firearm while attempting to unload it, unintentionally sending a bullet through the floor striking and killing a person in the apartment below. Ford was convicted in part of felony murder predicated on possession of a firearm by a convicted felon. On appeal, he argued that the evidence of the firearm possession was insufficient to support a felony murder conviction because he did not possess the weapon in a manner that was inherently dangerous or life threatening. The Court agreed, noting that the purpose of the felony murder statute is to “deter the commission of a dangerous or life-threatening felony” and the status offense in that case occurred under circumstances in which no assault or criminal conduct took place. Id. at 603. The Court also acknowledged that “circumstances may well exist under which such a felony may be considered dangerous.” Id.
Unlike Ford, Shivers intentionally aimed and shot a loaded weapon at the victim (actually using a chair to position it) in a manner that was inherently dangerous. “A felony is inherently dangerous when it is dangerous per se or by its circumstances creates a foreseeable risk of death. [Cit.] Depending on the facts, possession of a firearm by a convicted felon can be an inherently dangerous felony.” (Punctuation omitted.) Hines v. State, 276 Ga. 491, 493 (3) (578 SE2d 868) (2003). See also Sapp v. State, 284 Ga. 754 (670 SE2d 67) (2008); Metis v. State, 270 Ga. 481 (1) (511 SE2d 508) (1999) (status offense of being a convicted felon in possession of a firearm supports a felony murder conviction where defendant pointed a loaded, cocked gun at a window knowing there was a person on the other side). “In determining whether a felony meets that definition, [a] court does not consider the elements of the felony in the abstract, but instead considers the circumstances under which the felony was committed.” Mosley v. State, 272 Ga. 881, 883 (3) (536 SE2d 150) (2000). As in Metts, supra at 482, “[a]ppellant’s possession of the firearm was dangerous and life-threatening, and had ‘an undeniable connection to the homicide.’ ”
“Whether the evidence presented is sufficient to authorize the giving of a charge is a question of law.” Davis v. State, 269 Ga. 276, 279 (3) (496 SE2d 699) (1998). It is not error for the trial court to refuse to give a requested charge that, “ ‘is not legally accurate and adjusted to the evidence.’ ” Lewis v. State, 269 Ga. App. 94, 96 (2) (603 SE2d 492) (2004). Shivers admitted that he deliberately used the weapon to shoot the victim, but claimed that he did so in self-defense. Thus, his use of the weapon under the circumstances “create[d] a foreseeable risk of death.” (Punctuation omitted.) Ford, supra at 603. The only question was whether his conduct was [425]*425justified because he was acting in self-defense. In contrast to Ford, supra at 603, the evidence did not support a finding that the status felony occurred under circumstances in which “no assault or any other criminal conduct” took place. It follows that the requested charge was properly denied.
Judgment affirmed.
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688 S.E.2d 622, 286 Ga. 422, 2010 Fulton County D. Rep. 258, 2010 Ga. LEXIS 104, Counsel Stack Legal Research, https://law.counselstack.com/opinion/shivers-v-state-ga-2010.