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Ware v. State

Supreme Court of Georgia

March 11, 2019

WARE
v.
THE STATE

          Warren, Justice.

         Demario Ware was convicted of felony murder during the commission of an armed robbery in connection with the shooting death of Vernon Forrest.[1]On appeal, Ware contends that the trial court erred when it gave the pattern jury instruction on felony murder instead of his requested instruction on proximate causation, and by replacing a juror during deliberations. We disagree and affirm.

         1. Viewed in the light most favorable to the jury's verdict, the evidence presented at Ware's trial showed that at approximately 11:00 p.m. on July 25, 2009, Ware, J'Quante Crews, [2] and Charmon Sinkfield were sitting in Ware's red Pontiac at a Chevron gas station in Fulton County waiting for their friends, Patrick David Wilson and Anthony Hollis, to meet them so that Crews, Sinkfield, Wilson, and Hollis could go to a strip club together. Separately, Vernon Forrest, who was driving a Jaguar, arrived at the gas station with his ten-year-old nephew, E.G., who needed to use the restroom. While E.G. went inside, Forrest began putting air in his tires. After noticing the championship-boxing ring and diamond-encrusted watch that Forrest was wearing, Ware, Crews, and Sinkfield discussed robbing him. Crews gave a firearm to Ware. Ware approached Forrest as he was putting air in his tires, robbed him at gunpoint, and fled on foot. Forrest then pulled out his own gun and began chasing Ware in an effort to get his stolen items back. Ware ran to a nearby apartment complex where he hid from Forrest.

         Meanwhile, before the robbery occurred, Wilson and Hollis had arrived at the service station in a blue Expedition, and Sinkfield got into their vehicle. While Forrest was chasing Ware, Crews drove the Pontiac out of the gas station, and Wilson, Hollis, and Sinkfield separately drove away in the Expedition. After a phone conversation with Crews, Sinkfield had Wilson drop him off at the nearby apartment complex where Forrest had chased Ware, and where Ware was hiding from Forrest. Sinkfield encountered Forrest and, after a confrontation that appeared to eyewitnesses to be resolved, Sinkfield shot Forrest in the back several times as Forrest tried to walk away, killing him. Crews then picked up Ware from the apartment complex where Ware had been hiding, dropped Ware off near Ware's home, and then picked up Sinkfield, before the three men later reconvened at Ware's home.

         In addition to several witnesses who later testified that the events transpired as described above, E.G. also identified Ware from a photographic lineup, and then later at trial, as the person he saw robbing Forrest; surveillance footage showed the events that occurred at the gas station; and Ware himself admitted to the robbery but maintained that there was never any plan or discussion beyond the robbery itself.

         Ware does not contest the legal sufficiency of the evidence supporting his conviction. Nevertheless, in accordance with this Court's practice in murder cases, we have reviewed the record and conclude that, when viewed in the light most favorable to the verdict, the evidence presented at trial and summarized above was sufficient to authorize a rational jury to find Ware guilty beyond a reasonable doubt of felony murder predicated on armed robbery. See Jackson v. Virginia, 443 U.S. 307, 319 (99 S.Ct. 2781, 61 L.Ed.2d 560) (1979); Crews v. State, 300 Ga. 104, 105-106 (793 S.E.2d 393) (2016).

         2. Ware contends that the trial court erred by failing to give his requested jury instruction on proximate causation. Ware requested that the trial court specifically charge the jury that "causes the death of another" in the definition of felony murder "refers to proximate cause," see State v. Jackson, 287 Ga. 646 (697 S.E.2d 757) (2010), and that "[n]o legal cause will be found where there intervenes: (1) a coincidence that is not reasonably foreseeable, or (2) an abnormal response," see Skaggs v. State, 278 Ga. 19, 20 (596 S.E.2d 159) (2004). Ware argues that this instruction was necessary for the jury to evaluate the defense theory that Forrest's death, which was caused by Sinkfield, was not part of Ware's initial robbery but was a separate and distinct act.

The trial court did, however, properly define felony murder "as follows: A person also commits the crime of murder when in the commission of a felony, that person causes the death of another human being with or without malice." (Emphasis supplied.) See OCGA § 16-5-1 (c). And the court later gave the pattern jury instruction that explains the requisite legal relationship between the felony and the death as follows:
If you find and believe beyond a reasonable doubt that the defendant committed the homicide allege[d] in this [bill] of indictment at the time the defendant was engaged in the commission of the felony of aggravated assault or armed robbery, then you would be authori[zed] to find the defendant guilty of murder whether the homicide was intended or not. In order for a homicide to have been done in the commission of either of these felonies, there must be some connection between the felony and the homicide. The homicide must have been done in carrying out the unlawful act and not collateral to it. It is not enough that the homicide occurred soon or presently after the felony was attempted or committed. There must be such a legal relationship between the homicide and the felony so as to cause you to find that the homicide occurred before the felony was at an end or before any attempt to avoid conviction or arrest for the felony. The felony must have a legal relationship to the homicide, be at least concurrent with it in part and be a part of it in an actual and material sense. A homicide is committed in carrying out a felony when it is committed by the accused while engaged in the performance of any act required for the full execution of the felony.

See Georgia Suggested Pattern Jury Instructions, Vol. II: Criminal Cases (4th ed. 2007, updated Jan. 2017), § 2.10.30. Having read the indictment to the jury earlier, the trial court sent out with the jury a redacted indictment including the felony-murder count that tracked the causation language of the felony-murder statute. The trial court also thoroughly instructed the jury on the predicate felonies that were charged and on parties to a crime.

         "When viewed as a whole, these charges were sufficient to instruct the jury on the principles of proximate causation relevant to this case." Brown v. State, 297 Ga. 685, 689 (777 S.E.2d 466) (2015). See also Williams v. State, 298 Ga. 208, 218 (779 S.E.2d 304) (2015) ("[T]he instructions as a whole properly informed the jury that in order to convict for felony murder, it was required to determine appellant caused or was a party to the crime in causing the victim's death as a result of appellant's commission of the underlying felonies. Accordingly, the trial court was not required to give a separate charge on proximate causation. . . . [W]e find no error in the trial court's charge as alleged in this enumeration of error, 'plain or otherwise.'"); Whiting v. State, 296 Ga. 429, 430-431 (768 S.E.2d 448) (2015) (the indictment and jury charge were "sufficient to inform the jury that, in order to convict [the defendant] of the felony murder of [the victim], it had to determine that [the defendant] caused or was a party with [the shooter] in causing the victim's death during the [predicate offense]. Indeed, the charge given adequately informed the jury that [the defendant] could only be found guilty of felony murder if the [predicate felony] was the proximate cause of [the victim's] death. The trial court was not required to give a separate charge on proximate causation in order to make this point." (citations and punctuation omitted)); Flournoy v. State, 294 Ga. 741, 746 (755 S.E.2d 777) (2014) ("The trial court's instruction on felony murder and party to a crime, which referenced the allegations of the indictment, was sufficient to inform the jury that, in order to convict, it had to determine Flournoy caused or was a party in the causing of [the victim's] death, and thus no error is shown by the trial court's failure to give a charge on proximate cause.").

         Ware's reliance on Skaggs is misplaced. The language that he quotes from Skaggs, 278 Ga. at 20, is part of a discussion of the sufficiency of the evidence of causation-not an instruction that was given to the jury in that case. But explanatory language in prior case law is not required to be included in jury instructions at a defendant's request. See Pecina v. State, 274 Ga. 416, 421 (554 S.E.2d 167) (2001) ("[E]ven though language used by the appellate courts in a decision may embody sound law, it is not always appropriate to employ such language in instructing the jury.") (citation and punctuation omitted). Moreover, our review of the archived record in Skaggs shows that the causation instruction approved by this Court, see Skaggs, 278 Ga. at 22, and given in Skaggs was virtually identical to the language used by the trial court in this case. As a result, Skaggs undermines, rather than supports, Ware's argument here. Accordingly, the trial court did not err in failing to give Ware's requested jury charge on proximate cause.

         3. Ware also contends that the trial court erred when it removed a juror during deliberations and replaced her with an alternate juror. We disagree because the trial court did not abuse its broad discretion to replace a juror with an alternate for good cause.

         On the first day of trial, August 8, 2011, after discussing the expected length of trial with the attorneys, the trial court told the venire that "the case may last approximately five days," but that there was an "outside possibility that the case could run over til[] the first part of next week." The court asked if it would be a hardship for any prospective juror to be at trial for "the next five days, possibly going into next week." ...


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