Sutton v. State

415 S.E.2d 627, 262 Ga. 181, 92 Fulton County D. Rep. 382, 1992 Ga. LEXIS 334

• Court: Supreme Court of Georgia
• Decided: April 23, 1992
• Docket: S92A0361
• Status: Published

Opinions

Benham, Justice.

Appellant brings this appeal from his conviction for malice murder, and alleges error in the trial court’s charge to the jury.¹

1. The evidence presented by the State established that Jerome Carson died from a gunshot wound² inflicted by appellant following an altercation between appellant and his brother on one side, and the victim and his brother on the other side, over beer. The jury was authorized to conclude beyond a reasonable doubt that appellant was guilty of malice murder. Jackson v. Virginia, 443 U. S. 307 (99 SC 2781, 61 LE2d 560) (1979).

2. Appellant takes issue with the trial court’s instructions to the jury that, should they find beyond a reasonable doubt that appellant committed either of the offenses charged, “it would be [their] duty to convict” appellant of that charge. The trial court also instructed the jury that, should reasonable doubt as to the guilt of appellant not exist in their minds, then they “should convict.” Appellant asserts that the trial court’s instructions amount to the direction of a guilty verdict.

A jury possesses a de facto power to acquit a defendant regardless of the strength of the evidence presented against him. Cargill v. State, 255 Ga. 616 (30 d) (340 SE2d 891) (1986). However,

[t]he duty of a jury is to be distinguished from its power. Its duty is to apply the law to the facts and to reach a verdict which speaks the truth. [Cits.] If, after considering all of the evidence, the jury finds that the [S]tate has carried its burden of proving beyond a reasonable doubt every essential allegation in the indictment, and is convinced beyond a reasonable doubt of the defendant’s guilt of the crime charged, it should convict. [Felker v. State, 252 Ga. 351 (13 b) (314 SE2d 621) (1984).]

While the better practice is to use the charge proffered in the current edition of the Suggested Pattern Jury Instructions, Vol. II: Criminal Cases (2d ed. 1991), informing the jury that they “would be author - ized to find the defendant guilty,” the charges as given by the trial court in the case at bar do not constitute reversible error. Miller v. State, 260 Ga. 191 (13) (391 SE2d 642) (1990); Sears v. State, 259 Ga. 671 (6) (386 SE2d 360) (1989); Noggle v. State, 256 Ga. 383 (2) (349 SE2d 175) (1986). See also Paschal v. State, 230 Ga. 859 (1) (199 SE2d 803) (1973).

3. Appellant maintains the evidence presented at trial was not sufficient to sustain a charge on the law of flight.

The State presented evidence that appellant, while driving a car, fired shots at a car containing the victim and the victim’s brother. When the victims drove off, appellant drove off in another direction, dropped his passenger off, reported what happened to his family, and went to a convenience store to keep a friend company. Appellant testified he was not aware that anyone had been wounded by the gunfire until he was so told by the arresting officer.

Where the defendant departs the scene immediately after the incident, it is not error to charge on the issue of flight of the defendant. It is for the jury to determine if his sudden departure was due to consciousness of guilt or other reasons. [Lockette v. State, 181 Ga. App. 649 (1) (353 SE2d 585) (1987).]

See also Montgomery v. State, 241 Ga. 396 (3) (245 SE2d 652) (1978). This court has recently rejected appellant’s contention that a charge on flight must be predicated upon evidence that the defendant attempted to “evade the course of justice” or concealed himself. Renner v. State, 260 Ga. 515 (3 a) (397 SE2d 683) (1990). Since there was evidence to support a charge on flight,³ the trial court did not err by instructing the jury on the subject.

Judgment affirmed.

All the Justices concur, except Sears-Collins, J., who dissents.

1 The crime occurred on August 29, 1989, and appellant was arrested later that day. He was indicted for malice murder and felony murder on December 7, 1989, and tried February 26-March 2, 1990. The jury returned its guilty verdicts on March 2, and the trial court sentenced appellant to life imprisonment on the malice murder guilty verdict the same day. Appellant filed a motion for new trial on March 27, and his amended motion was denied November 13, 1991. The notice of appeal was filed December 12; the record was docketed on December 23; and oral argument was heard on March 11, 1992.

2 The weapon used was a .357 handgun.

3 Appellant’s trial was prior to January 10, 1991, the effective date of that portion of the decision in Renner, supra, which held that error would occur should a trial court charge the jury on flight.