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Bozzie v. State

Supreme Court of Georgia

December 11, 2017

BOZZIE
v.
THE STATE.

          Peterson, Justice.

         Frank Scott Bozzie was convicted of malice murder and other crimes in connection with the death of Richard Morgan.[1] Bozzie appeals and argues that the evidence was insufficient to support his malice murder conviction, the trial court made numerous evidentiary errors, he should be granted a new trial due to alleged juror misconduct, he received ineffective assistance of trial counsel, and the trial court erred in refusing to secure his attendance for the motion for new trial hearing. Because none of these claims is meritorious, we affirm Bozzie's convictions.

         Viewed in the light most favorable to the verdict, the trial evidence showed the following. On a night in June 2013, Jennifer Verner was with Morgan at a bar when she met and talked to Bozzie. Within days, Verner and Bozzie began a romantic relationship, and she soon agreed to move in with him. Verner quickly decided to move out, however, finding Bozzie controlling. Not wanting to reveal her true plans to Bozzie, Verner asked him for a ride to her parents' house, telling Bozzie that she was going out with her cousin. Verner actually planned to meet Morgan and Richard Holbrook, a man Verner had previously dated intermittently. Bozzie became angry when Verner asked him for a ride, but he ultimately agreed.

         Bozzie drove Verner to her parents' house and initially refused to leave until Verner's cousin arrived. Verner tried to convince Bozzie to leave and began to tell him that she didn't think their relationship was working, but stopped when she sensed he was getting angry. After Bozzie left, Verner called Morgan and Holbrook, who picked her up and took her to Morgan's house.

         Bozzie returned to Verner's parents' house later that night, expecting to pick up Verner. He waited for Verner until the following morning, attempting to reach her by phone and exchanging several text messages with her. Verner told Bozzie that she didn't want to be with him and asked him to pack up her things. Bozzie begged her to return and said that he loved her and that he was hurting. Seeking to quell his anger, Verner replied that she loved him, she would never leave him, and she would see him soon.

         Bozzie drove around looking for Verner after he left her parent's house. Bozzie went to Morgan's residence, got into a physical altercation with Morgan, and learned from Morgan that Verner and Holbrook had gone to a nearby McDonald's. Bozzie drove to the restaurant and, when he saw Holbrook and Verner sitting in Morgan's van, rammed his truck into the driver's side door, hitting the side where Holbrook was sitting. Holbrook rushed to exit through the passenger's door because he thought Bozzie was going to ram the van again. Bozzie got out of his truck carrying a baseball bat and walked around the van. Verner, who was out of the van at this point, asked Bozzie to stop, but he struck her in the mouth and moved toward Holbrook. Bozzie swung the baseball bat at Holbrook, struck him twice, and briefly followed Holbrook as Holbrook ran away. Bozzie then returned to the van and smashed a window. Bozzie told Verner to get in his truck and left in his vehicle when she refused.

         Holbrook returned to the van once he saw Bozzie leave and drove Verner to Morgan's house. Standing on the driveway of Morgan's house, Verner and Holbrook told Morgan about their violent encounter with Bozzie. Morgan called 911. While Morgan was on the phone, Bozzie drove onto Morgan's driveway. Morgan asked Bozzie to leave and shook a bat at Bozzie when he got out of his truck. Bozzie returned to his truck and began revving the engine. Morgan started to run away, but Bozzie chased him down, hit him with his truck, and dragged him under his truck for about 32 feet before trees stopped the vehicle's movement.

         Holbrook, who went across the street when Morgan called 911, immediately ran back to assist Morgan and noticed that the wheels of Bozzie's truck were still spinning. Holbrook grabbed the baseball bat that Morgan had dropped and tried to hit Bozzie through the window. Holbrook ran away when it appeared that Bozzie was reaching for a gun. Bozzie exited his truck, tried unsuccessfully to open the front door of Morgan's house, and then fled on foot. Police arrived and attempted to lift the truck off Morgan, but were too late. Morgan died as a result of asphyxiation.

         1. Bozzie argues that the evidence was insufficient to support his malice murder conviction, because the evidence does not show that he had the intent to kill Morgan. We disagree.

         The crime of malice murder is committed when the evidence shows either an express or implied intent to commit an unlawful homicide. Kitchen v. State, 287 Ga. 833, 834 (700 S.E.2d 563) (2010); see also OCGA § 16-5-1 (a). "This meaning of malice murder is consistent with the general rule that crimes which are defined so as to require that the defendant intentionally cause a forbidden bad result are usually interpreted to cover one who knows that his conduct is substantially certain to cause the result, whether or not he desires the result to occur." Kitchen, 287 Ga. at 834 (citation and punctuation omitted). Thus, a specific intent to kill is express malice, whereas an intent to commit acts with such a reckless disregard for human life as to show "an abandoned and malignant heart" amounts to implied malice. OCGA § 16-5-1(b); see Browder v. State, 294 Ga. 188, 190 (1) (751 S.E.2d 354) (2013).

          Here, the evidence was sufficient for the jury to find that Bozzie intended to strike Morgan with his vehicle, an act that was substantially certain to cause Morgan's death. Eyewitnesses testified that Bozzie revved the engine of his truck several times while Morgan was standing in front of it. Although Morgan tried to run away, Bozzie chased Morgan down, hit him with the truck, and then dragged him for 32 feet. Although Bozzie testified at trial that he simply lost control of his truck, the jury was free to reject Bozzie's version of events, especially where the evidence showed that Bozzie kept his foot on the gas pedal while dragging Morgan, even after his truck crashed into trees and could no longer move forward. See Brannon v. State, 266 Ga. 667, 667 (469 S.E.2d 676) (1996) (the jury determines witness credibility and is free to reject a defendant's testimony, including the denial of intent). The evidence was therefore sufficient to authorize a rational trier of fact to find beyond a reasonable doubt that Bozzie was guilty of malice murder, as well as the other crimes for which he was convicted. See Jackson v. Virginia, 443 U.S. 307, 319 (99 S.Ct. 2781, 61 L.Ed.2d 560) (1979).

         2. Bozzie argues that the trial court erred in its admission of photographs of Morgan - an in-life photograph and numerous photographs of his dead body - and certain hearsay statements. As Bozzie concedes, no objection was made when this evidence was introduced at trial, so we review his claim only for plain error. See OCGA § 24-1-103 (d). To establish plain error,

[Bozzie] must point to an error that was not affirmatively waived, the error must have been clear and not open to reasonable dispute, the error must have affected his substantial rights, and the error must have seriously affected the fairness, integrity or public reputation of judicial proceedings.

Lupoe v. State, 300 Ga. 233, 243 (4) (794 S.E.2d 67) (2016) (citation and punctuation omitted). To show that the error affected his substantial rights, Bozzie is required to show that error probably affected the outcome of his trial. See Jones v. State, 299 Ga. 40, 43 (2) (785 S.E.2d 886) (2016).

         (a) Relying primarily on our opinion in Ragan v. State, 299 Ga. 828 (792 S.E.2d 342) (2016), Bozzie argues that the trial court erred in admitting a single photograph of Morgan with his wife and grandchildren, because Morgan's existence or identity was not in question and the State failed to show, as a condition of admission, that it made every effort to proffer a photograph of the victim alone. The error in Ragan, however, was the admission of five in-life photographs of the victim depicting her alone or with her children. Ragan, 299 Ga. at 833 (3) ("With no serious question as to the victim's existence or identity, any probative value of the photographs was outweighed ...


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