Murder. Clayton Superior Court. Before Judge Collier.
Viveca R. Famber Powell, for appellant.
Tracy Graham-Lawson, District Attorney, Elizabeth A. Baker, Jay M. Jackson, Assistant District Attorneys; Samuel S. Olens, Attorney General, Patricia B. Attaway Burton, Deputy Attorney General, Paula K. Smith, Senior Assistant Attorney General, Vicki S. Bass, Assistant Attorney General, for appellee.
BLACKWELL, Justice. All the Justices concur.
Dustin James Cotton was tried by a Clayton County jury and convicted of murder and other crimes in connection with the fatal stabbing of Tyriss Turner. Cotton appeals, contending that the verdict is against the weight of the evidence. Cotton also asserts that the trial court erred when it denied his
motion for pretrial immunity, when it admitted evidence of incriminating messages that he sent through Facebook, and when it refused his request to charge the jury on defense of others. We see no error, and we affirm.
1. Viewed in the light most favorable to the verdict, the evidence shows that Cotton had a home in Pennsylvania, but in July 2011, Cotton was living with Turner, Turner's six-year-old daughter, and Cotton's sister (who was also Turner's girlfriend) in Turner's apartment near Jonesboro. On the evening of July 30, Turner and Cotton's sister got into an argument that escalated into a physical altercation. Cotton intervened and fought with Turner in the living room of the apartment. Cotton pushed Turner into a lamp, went into the kitchen, returned to the living room with a knife, and stabbed Turner in the chest in the presence of Turner's young daughter. Cotton then fled the [297 Ga. 258] scene and went back to Pennsylvania. Cotton's sister took Turner to the hospital, where Turner later succumbed to his wounds.
Cotton argues that he is entitled to a new trial because the guilty verdict, he says, was against the weight of the evidence. But the discretion to grant a new trial on the basis that the verdict is " decidedly and strongly against the weight of the evidence" is a discretion committed exclusively to the trial court. OCGA § 5-5-21. See also Smith v. State, 292 Ga. 316, 317 (1) (b) (737 S.E.2d 677) (2013). As an appellate court, we cannot consider whether the verdict is consistent with the weight of the evidence, and our review is limited instead to the legal sufficiency of the evidence. While Cotton claims that the evidence presented a " textbook" case of self-defense, the jury " was free to accept the evidence that the stabbing was not done in self-defense and to reject any evidence in support of a justification defense." Grimes v. State, 293 Ga. 559, 560 (1) (748 S.E.2d 441) (2013) (citation and punctuation omitted). Viewing the evidence in the light most favorable to the verdict, as we must, we conclude that the evidence was sufficient to authorize a rational trier of fact to find beyond a reasonable doubt that Cotton was guilty of the crimes of which he was convicted. See Jackson v. Virginia, 443 U.S. 307, 319 (III) (B) (99 S.Ct. 2781, 61 L.Ed.2d 560) (1979).
2. Before trial, Cotton filed a motion for immunity from prosecution under OCGA § 16-3-24.2. Following a hearing, the trial court denied Cotton's motion, and Cotton now claims that the trial court employed the wrong standard when it determined that his justification defense was not strong enough to afford him immunity from prosecution. We disagree.
To avoid trial based on a justification defense presented at an immunity hearing, " a defendant bears the burden of showing that he is entitled to immunity under OCGA § 16-3-24.2 by a preponderance of the evidence." Bunn v. State, 284 Ga. 410, 413 (3) (667 S.E.2d 605) ...