Murder. Fulton Superior Court. Before Judge Newkirk.
Knight & Mitchell, Jennifer L. Knight, for appellant.
Paul L. Howard, Jr., District Attorney, Paige Reese Whitaker, Joshua D. Morrison, Assistant District Attorneys, Samuel S. Olens, Attorney General, Patricia B. Attaway Burton, Deputy Attorney General, Paula K. Smith, Senior Assistant Attorney General, Jason M. Rea, Assistant Attorney General, for appellee.
HINES, Presiding Justice. All the Justices concur.
Hines, Presiding Justice.
Deimeyon X. Allen (" Allen" ) appeals from his convictions and sentences for the malice murder of Keith Booker, the aggravated assault of David Armour, and possession of a firearm during the commission of a crime. For the reasons that follow, we affirm.
Construed to support the verdicts, the evidence showed that Allen and his brother Antoine Allen (" Antoine" ) lived in the same housing complex; Antoine lived with his mother, and Allen lived in a separate unit. Roger Armour (" Roger" ) lived in a nearby unit, across a parking area; at the time of the crimes, Roger was outside his apartment with murder victim Booker, David Armour (" David" ), and several others, including Allen and Antoine.
[296 Ga. 739] David and others teased Antoine about a previous incident in which Antoine had called the police, and David and Antoine began arguing; a suggestion was made that the two men engage in fisticuffs, but Antoine said he would shoot his tormentors instead, and he and Allen ran toward their mother's apartment, pursued by David and Booker.
Allen went in his mother's apartment and emerged firing a Glock .40 caliber pistol at David and Booker, who fled to Roger's apartment. Roger retrieved his .380 caliber pistol and attempted to return fire, but the pistol jammed. Inside the apartment, it was learned that Booker had been shot. Booker was taken to a hospital, where he died of a single gunshot wound to his heart; the bullet entered from his back. Allen told investigating law enforcement officers that: he engaged the men in conversation when he went outside to take out the trash; an argument ensued and continued as the men followed him toward his mother's apartment, with men pushing and pulling him; Roger was the first to produce a pistol and pointed it at Allen and Antoine; Allen went to his mother's apartment to retrieve his .40 caliber Glock pistol, saw through the window that the men were still outside, exited his mother's apartment and found one of the men pointing a pistol at him; he pulled his pistol from his waistband and fired at the men, while they faced him; he ran and tossed his pistol away before climbing a fence. Ten shell casings were found in the parking area between the housing units of Allen's mother and Roger, which casings were from the same .40 caliber weapon; the projectile taken from Booker's body was also fired from a .40 caliber weapon. Allen's .40 caliber Glock pistol was not recovered.
1. The evidence was sufficient to authorize a rational trier of fact to find beyond a reasonable doubt that Allen was guilty of the crimes of which he was convicted. See Jackson v. Virginia, 443 U.S. 307 (99 S.Ct. 2781, 61 L.Ed.2d 560) (1979).
2. In his motion for new trial, Allen relied in part on OCGA § § 5-5-20 and 5-5-21, contending that the verdicts were decidedly and strongly against the weight of the evidence, and contrary to the principles of equity and justice, such as to warrant the exercise of the [296 Ga. 740] trial court's discretion to grant a new trial. Allen now contends that, in addressing his motion for new trial, the trial court did not apply the correct standard, claiming that the trial court's order denying the ...