☢ test - Í

himself from another party, his weapon accidentally discharged and killed that other party.’” “Under the facts of the case, the trial court's instruction that the two defenses were inconsistent was not erroneous. Sellers' accident defense was not based on a claim that she accidentally stabbed Mitchell while struggling with him in self-defense. Rather, it was based on her claim that she did not realize she was holding a knife, and that Mitchell accidentally impaled himself on the blade when she bumped into him while trying to run out of the room. She did not claim that she intended to use any force whatsoever on Mitchell in self-defense. Thus, if the jury accepted Sellers' accident defense, it could not have also determined that she stabbed him in self-defense. In any event, any error in instructing the jury that the two defenses were inconsistent was harmless, since the jury necessarily rejected both defenses in convicting Sellers of voluntary manslaughter.” Bolick v. State, 244 Ga.App. 567, 536 S.E.2d 242 (June 22, 2000). Burglary and related convictions affirmed; trial court properly declined to charge jury on “accident and misfortune” as a defense to kidnapping with bodily injury. “The ‘accident or misfortune’ to which Bolick refers is his assertion that, while dragging the victim across the floor, he ‘accidentally’ choked her to the point where she lost consciousness and fell, face first with her hands cuffed behind her back, landing with a ‘loud thump when she hit the ground.’ Apparently, according to Bolick, it was the fall, not any affirmative act like punching, kicking, or hitting as described by the victim, that caused the substantial facial injuries which form the ‘bodily injury’ portion of Count 3. ‘OCGA § 16–2–2 provides that a person shall not be found guilty of any crime committed by misfortune or accident where it satisfactorily appears there was no criminal scheme or undertaking, intention, or criminal negligence. The defense of accident is an affirmative defense. The essence of the defense of accident is that the defendant's act is not intentional.’ (Citations and punctuation omitted.) Mansfield v. State, 214 Ga.App. 520, 521(1), 448 S.E.2d 490 (1994). See also Brooks v. State, 262 Ga. 187, 188–189(3), 415 S.E.2d 903 (1992). Therefore, even if Bolick's assertions as to how the victim was injured were true, such facts would not support a jury instruction on accident or misfortune.” Cromartie v. State, 241 Ga.App. 718, 527 S.E.2d 228 (December 15, 1999). Defendant’s convictions for cocaine trafficking and related offenses affirmed; no ineffective assistance for failure to request jury charge on “misfortune.” “The law of accident and misfortune does not encompass Cromartie's defense that the drugs belonged to someone else and that he did not know the drugs were in the SUV. Where there is nothing to indicate that a defendant, himself, did anything by accident or mistake, a charge on misfortune is not applicable. Mansfield v. State, 214 Ga.App. 520- 521(1), 448 S.E.2d 490 (1994). Trial counsel was not ineffective for failing to request an inapplicable jury charge.” Johnson v. State, 236 Ga.App. 61, 510 S.E.2d 918 (January 21, 1999); overruled in part on other grounds, Schofield v. Holsey, 281 Ga. 809, 811-812, n. 1 (642 S.E.2d 56) (2007). Involuntary manslaughter conviction affirmed. 1. Defendant was not entitled to charge on accident. “ Johnson’s admission in open court that she armed herself with a revolver which was loaded because she thought Mathis would see the gun and leave ‘was not even slight evidence that [s]he acted accidentally, with “no criminal scheme or undertaking, intention, or criminal negligence.” OCGA § 16-2-2.’ Johnson v. State, 223 Ga.App. 294, 295(2), 477 S.E.2d 439 (1996); compare Brooks v. State, 262 Ga. 187, 188(3), 415 S.E.2d 903 (1992). Further, Johnson did not testify that she believed herself to be in imminent danger of death or serious bodily injury before she armed herself. By arming herself to enforce her order that Mathis leave the trailer, Johnson showed utter disregard for Mathis’ safety and criminal negligence that precluded a charge on accident. See Stewart v. State, 261 Ga. 654(2), 409 S.E.2d 663 (1991).” 2. Defendant’s requested charge on accident was not complete because it “fails to charge the jury that any evidence as to misfortune or accident should be considered by the jury in connection with all other evidence in the case. This is a substantial component of the suggested pattern jury instruction on accident or misfortune. See Suggested Pattern Jury Instructions, Vol. II: Criminal Cases, Part 3, Sec. M, pp. 31-32.” D. AFFIRMATIVE DEFENSES, GENERALLY Williams v. State, 297 Ga. 460, 773 S.E.2d 213 (June 1, 2015). Malice murder and related convictions affirmed; 1. prosecutor’s closing argument was erroneous, but harmless, in arguing that defendant, in pursuing a justification defense, must admit shooting the victim for all purposes and could not also claim “that he did not fire any gunshot that killed Lenix. … Certainly, Williams was entitled to claim both justification and lack of causation, as ‘[a] defendant who pursues alternative defense theories is entitled to requested charges on both theories, if there is some evidence to support each theory. [Cits.]’ Bishop v. State, 271 Ga. 291, 292(3) (519 S.E.2d 206) (1999). See also Turner v. State, 262 Ga. 359, 361(2)(c) (418 S.E.2d 52) (1992); Hendrix v. State, 268 Ga.App. 455, 456(1) (602 S.E.2d 133) (2004). And, the State was free to comment upon Williams's choice to defend against the charges in that manner.” Harmless, however, in light of trial court’s jury instructions, which defined both defenses and instructed that the law comes from the court. 2.

Made with FlippingBook Ebook Creator