Calmer v. State

309 Ga. 368

846 S.E.2d 40

CALMER

v.The STATE.

S20A0441

Supreme Court of Georgia.

Decided: July 1, 2020

Nathaniel L. Studelska, Gabrielle A. Pittman, Chelsea Henderson, for appellant.

Jonathan L. Adams, District Attorney, Cynthia T. Adams, Carolee R. Jordan, Elizabeth K. Presley, Assistant District Attorneys; Christopher M. Carr, Attorney General, Patricia B. Attaway Burton, Deputy Attorney General, Paula K. Smith, Attorney General, Michael A. Oldham, Assistant Attorney General, for appellee.

Ellington, Justice.

Christopher Calmer shot two Monroe County sheriff's deputies, Michael Norris and Jeffrey Wilson, after they opened the door to his residence in response to a 911 call. Wilson recovered, but Norris died of his injuries. Following a jury trial, Calmer was convicted of malice murder and other offenses arising out of the shooting.¹ Calmer contends on appeal that the trial court erred by failing to charge the jury on justification and on the lesser offenses of voluntary and involuntary manslaughter. He also contends that the court erred in denying his motion for immunity from prosecution. We affirm for the reasons set forth below.

Viewed in the light most favorable to the jury's verdicts, the evidence presented at trial showed the following. In 2014, Calmer lived with his parents in their Monroe County home. He suffered from chronic pain following a surgical procedure. In September, Calmer's uncle, Tommie McRae, came to visit Calmer's mother for several days. McRae saw that Calmer was acting in an extremely agitated manner. Calmer remarked about how much pain he was in and said that he could not live that way.

Days before the shooting, Calmer told his mother that he wanted the police to be called so he could shoot at them and they would shoot back. And the day before the shooting, Calmer showed a gun and a bottle of pills to his mother, and McRae and said that he needed to get relief and one of those two things would give it to him.

On the day of the shooting, September 13, 2014, Calmer's mother, his aunt, and McRae were on the back porch of the house when Calmer came outside and put a handgun under his chin, then to his temple, and asked, "Are you scared now?" After Calmer went back inside the house, Calmer's mother and McRae agreed that McRae should call 911. She was worried that Calmer would shoot himself. McRae called 911 and told the operator that Calmer had a gun, was threatening to commit suicide, and wanted to shoot at police officers so that they would kill him. Calmer's mother went inside the house to tell her husband that the police had been called.

Deputies Norris and Wilson, both of whom were in uniform, responded. Upon arriving at the Calmer residence, they spoke with McRae, who told the deputies that his nephew was "inside acting crazy, [and] had a gun to his head threatening suicide[.]"

The deputies drew their service weapons and walked up the ramp to the front door of the house. Norris pushed the door open as Wilson looked through the window into the living room. Wilson saw the silhouette of a man sitting in a chair with his back toward the officers. One of the officers said "Chris," at which point Calmer immediately stood up, turned around, and started shooting. According to Wilson, and consistent with the video of the shooting captured by the dashboard video of Wilson's patrol car, the officers had not then entered the house, but were "at the door." Deputy Norris fell inside the doorway while Wilson and Calmer exchanged gunfire. Wilson was struck in the leg, fell on the ramp, and got up and made his way to the patrol car. Calmer stepped over Norris's body to come outside and shoot at Wilson, who took cover behind his car. Calmer went back inside the house and, after a period of time, came outside, raised his hands, and surrendered.

Deputy Wilson was shot three times but survived. Deputy Norris died from a gunshot wound to the head.

1. Calmer does not challenge the sufficiency of the evidence to support his convictions. Nevertheless, in accordance with this Court's current practice in appeals of murder cases, we have reviewed the record and conclude that the evidence, as summarized above, was sufficient to enable a rational trier of fact to find Calmer guilty beyond a reasonable doubt of the crimes for 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. Calmer contends that the trial court erred in failing to give his written requests to charge the jury on principles of justification, specifically the defense of habitation, the right to resist an illegal arrest, the right to defend himself, and the right to stand his ground (no duty to retreat). "To authorize a requested jury instruction, there need only be slight evidence to support the theory of the charge, and the necessary evidence may be presented by the State, the defendant, or both." Collins v. State , 308 Ga. 515, 519 (2), 842 S.E.2d 275 (2020) (citation and punctuation omitted). See Koritta v. State , 263 Ga. 703, 704-705, 438 S.E.2d 68 (1994) ("The evidence necessary to justify a jury charge need only be enough to enable the trier of fact to carry on a legitimate process of reasoning" (citation and punctuation omitted)). "Whether the evidence presented is sufficient to authorize the giving of a charge is a question of law." McClure v. State , 306 Ga. 856, 863 (1), 834 S.E.2d 96 (2019) (citation and punctuation omitted).

(a) Calmer contends that the trial court erred in failing to give the pattern jury charge on defense of habitation. OCGA § 16-3-23 (2), in pertinent part, provides:

A person is justified in threatening or using force against another when and to the extent that he or she reasonably believes that such threat or force is necessary to prevent or terminate such other's unlawful entry into or attack upon a habitation; however, such person is justified in the use of force which is intended or likely to cause death or great bodily harm only if ... [t]hat force is used against another person who is not a member of the family or household and who unlawfully and forcibly enters or has unlawfully and forcibly entered the residence and the person using such force knew or had reason to believe that an unlawful and forcible entry occurred[.]²

As the plain language of the statute shows, for the use of deadly force to be justified, "the entry must ... in fact be unlawful, as well as forcible[.]" Fair v. State , 288 Ga. 244, 258 (2), 702 S.E.2d 420 (2010).

Here, the State's evidence did not show that the deputies entered Calmer's home unlawfully, and Calmer did not present evidence raising the issue. As we have explained, "[t]he responsibility of producing evidence of an affirmative defense and the burden of persuasion by proof beyond a reasonable doubt are two distinct and separate concepts. The first is placed squarely on the defendant unless the state's evidence raised the issue." Adams v. State , 288 Ga. 695, 697 (1), 707 S.E.2d 359 (2011) (citation and punctuation omitted). See OCGA § 16-1-3 (1) (" ‘Affirmative defense’ means, with respect to any affirmative defense authorized in [Title 16], unless the state's evidence raises the issue invoking the alleged defense, the defendant must present evidence thereon to raise the issue."). Compare OCGA § 17-5-30 (b) (in a motion to suppress, "the burden of proving that the search and seizure were lawful shall be on the state").

The evidence at trial showed that Calmer's mother resided in the home. While on the back porch, she and McRae agreed that McRae should call 911 to get Calmer help. She was concerned that Calmer was going to shoot himself and might die. McRae left the porch to call 911, and Calmer's mother went in the house to tell her bedridden husband that the police had been called. McRae testified that he told Calmer's mother that "we have to call 911 ... to get that gun away from [Calmer]."

Neither party asked Calmer's mother if the deputies lacked her consent to enter her home, and McRae's testimony did not show that the deputies lacked her consent to enter. As discussed above, the evidence showed that the deputies were called to the residence with the knowledge and consent of Calmer's mother for the purpose of helping Calmer, who was inside. Because Calmer does not point to slight evidence that the deputies acted unlawfully in entering the home, the trial court did not err in failing to charge the jury on defense of habitation.

(b) Calmer contends that the trial court erred in refusing to give the pattern jury charge on the right to resist an illegal arrest. See Mullis v. State , 196 Ga. 569, 579 (7), 27 S.E.2d 91 (1943) ("Where an arrest is not lawful, the person sought to be so arrested, contrary to his right if the arrest had been lawful, has the right to resist, and in doing so has a right to resist force with force proportionate to that being used in unlawfully detaining him." (punctuation omitted)). There was, however, no evidence that the deputies were at the residence for the purpose of arresting Calmer or that the deputies attempted to arrest him before he opened fire. Deputy Wilson testified at trial that he had been on numerous suicide calls; that he was at the Calmer residence to "help" as a "first responder"; and that "[s]uicide is not a crime." According to Deputy Wilson, he and Deputy Norris had drawn their weapons for their own protection, but they were not there to make an arrest. As there was no evidence that the deputies arrested or attempted to arrest Calmer, the trial court did not err in failing to give the requested charge on the right to resist an illegal arrest. See Moore v. State , 205 Ga. 37, 45, 52 S.E.2d 282 (1949) ("[T]he requests to charge were not applicable to the facts of the case, for the reasons that there was no illegal arrest involved and no effort on the part of the defendant to resist an illegal arrest[.]").

(c) Calmer also contends that the trial court erred in refusing...