PALMER v. THE STATE

Supreme Court of Georgia1998-11-23No. S98A1735

270 Ga. 278507 S.E.2d 755

Summary · law.co

Holding. The judgment of conviction was affirmed. The evidence was sufficient to support a conviction for felony murder beyond a reasonable doubt, Palmer waived appellate review of the jury charge issue by failing to object when given the opportunity to do so, and Palmer waived review of the severance issue by withdrawing his motion in exchange for trial court concessions.

Dedrick Palmer was convicted by jury of felony murder committed during aggravated assault and sentenced to life imprisonment. When reviewing the evidence in the light most favorable to the prosecution, the appellate court determined that a reasonable jury could have found Palmer guilty beyond a reasonable doubt based on evidence that he obtained a gun from his co-defendant's vehicle and fired it multiple times at the victim, who was subsequently found dead from a gunshot wound.

Palmer raised three issues on appeal. First, he claimed the trial court erred by giving jury instructions on voluntary manslaughter in a sequential manner. The court rejected this argument because Palmer failed to object to the charges as they were actually given to the jury; his earlier reservation of objections at the charging conference did not preserve the issue, and he explicitly stated he had no objections when the trial court asked him directly at the conclusion of the instructions. Additionally, the court determined that the trial court should not have given any voluntary manslaughter instruction at all because evidence of the victim cursing at Palmer and an almost-occurred fight was insufficient to support a passion or provocation charge. Second, Palmer argued that the trial court erred by denying his motion to sever his trial from his co-defendant's trial. However, the court found Palmer waived this claim by withdrawing his motion in exchange for permission to present character witnesses despite his procedural noncompliance.

Summary generated by law.co from the public-domain opinion. The opinion text itself is public domain.

Key issues

Sufficiency of evidence for felony murder conviction
Waiver of jury charge objections through failure to timely object
Voluntary manslaughter instruction not warranted by evidence of passion or provocation
Waiver of severance motion by withdrawal in exchange for trial court benefit

Procedural posture

The defendant appealed from a conviction and life sentence for felony murder following jury trial and denial of his motion for new trial.

Authorities cited

No cited authorities resolved to law.co cases yet.

Opinion · public domain

majority opinion

Carley, Justice.

After a jury trial, Dedrick Palmer was found guilty of felony murder while in the commission of aggravated assault, and sentenced to life imprisonment. The trial court denied his motion for new trial, and he appeals.

1. Construed most favorably for the State, the evidence shows that Palmer and the victim had an argument at a bar, and the victim then went to sit under an old shelter. At some point thereafter, Palmer, acting at the direction of Casey Jenkins, his co-defendant, got a gun out of the trunk of Jenkins’ car and fired it several times in the victim’s direction. The victim was later found dead as the result of a gunshot wound. We conclude that a rational trier of fact could have found Palmer guilty of felony murder beyond a reasonable doubt. Jackson v. Virginia, 443 U. S. 307 (99 SC 2781, 61 LE2d 560) (1979); Roberts v. State, 259 Ga. 620, 621 (1) (385 SE2d 668) (1989).

2. Palmer contends that the trial court erred by giving a sequen tial jury charge in violation of Edge v. State, 261 Ga. 865 (2) (414 SE2d 463) (1992). According to Palmer, he preserved this issue by expressing a reservation of objections at the charge conference, but this reservation could not encompass objections to the charge as subsequently given. See Wilson v. State, 259 Ga. 55, 58 (6) (376 SE2d 676) (1989); Smith v. Curtis, 226 Ga. App. 470, 471 (1) (486 SE2d 699) (1997). At the conclusion of the jury instructions, the trial court affirmatively inquired whether Palmer had any objections to the charges “at this time.” Palmer responded in the negative, did not reserve the right to object later and, thus, waived appellate review of the charge as given. Geiger v. State, 268 Ga. 8 (1) (485 SE2d 749) (1997); Dunbar v. State, 263 Ga. 769, 770 (4) (438 SE2d 356) (1994). See also Clark v. State, 265 Ga. 243, 246 (3) (e) (454 SE2d 492) (1995). The trial court’s inclusion in its inquiry of the words “at this time” is not an acknowledgment of Palmer’s reservation of objections to the charge as given. See Cooper v. State, 188 Ga. App. 297, 298 (2) (372 SE2d 679) (1988); Kelly v. State, 174 Ga. App. 424, 425 (4) (330 SE2d 165) (1985); Butler v. State, 173 Ga. App. 168, 169 (2) (325 SE2d 835) (1984). The procedures which must be followed in order to preserve for appellate review a trial court’s charge are as applicable to the sequential charges which were disapproved in Edge as they are to charges dealing with any other issue. Bryant v. State, 268 Ga. 33, 34 (1) (485 SE2d 763) (1997).

Moreover, testimony that the victim cursed at Palmer and that a fight nearly broke out is not sufficient evidence of passion or provocation to authorize an instruction on voluntary manslaughter. See Byrd v. State, 257 Ga. 36, 37 (2) (354 SE2d 428) (1987); Hunter v. State, 256 Ga. 372 (2) (349 SE2d 389) (1986). Accordingly, the trial court erred in giving any charge at all on voluntary manslaughter. McGill v. State, 263 Ga. 81, 83 (3) (428 SE2d 341) (1993). See also Lamb v. State, 263 Ga. 118 (3) (428 SE2d 349) (1993).

•3. Palmer enumerates as error the trial court’s denial of his motion to sever his trial from that of Jenkins, contending that Jenkins’ decision to call good character witnesses deprived the defense of the right to opening and closing arguments. However, Palmer withdrew the motion in return for the trial court’s permission to present his own character witnesses despite his failure to provide the State with the list of witnesses required by OCGA § 17-16-8 (a). Therefore, Palmer waived the right to raise this issue on appeal. Lackey v. State, 246 Ga. 331, 334 (3) (271 SE2d 478) (1980). See also Morrison v. State, 258 Ga. 683, 685 (2) (373 SE2d 506) (1988).

Judgment affirmed.

All the Justices concur.

Decided November 23, 1998.

John E. Pirkle, for appellant.

Dupont K. Cheney, District Attorney, J. Thomas Durden, Assistant District Attorney, Thurbert E. Baker, Attorney General, Paula K. Smith, Senior Assistant Attorney General, for appellee.

The murder occurred on or about May 9,1996. The grand jury returned its indictment on February 17,1997. The jury found Palmer guilty on October 28,1997 and, on October 30, 1997, the trial court entered the judgment of conviction and sentence. Palmer filed his motion for new trial on November 19, 1997. The trial court denied that motion on June 25, 1998, and Palmer filed his notice of appeal on June 29, 1998. The case was docketed in this Court on July 30,1998, and the appeal was submitted for decision on September 21,1998.