DAVIS v. STATE (2010)

A jury found Justin Davis guilty of felony murder and criminal attempt to possess more than one ounce of marijuana. The trial court entered judgments of conviction and sentenced Davis to life imprisonment for felony murder and five years in confinement for the drug offense, to run concurrently with the life sentence. The trial court subsequently vacated the sentence for the drug offense, finding that it merged into the felony murder conviction. Davis appeals after the denial of a motion for new trial.^*

1. Construed most strongly in support of the verdict, the evidence shows that Davis and his brother went to an apartment to buy marijuana from the victim, Lafe Dalton, and another man. During the transaction, an altercation ensued, and Davis shot and killed the victim. The evidence was sufficient for a rational trier of fact to find Davis guilty beyond a reasonable doubt of felony murder. Jackson v. Virginia, 443 U.S. 307, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979).

2. Davis, who testified that he shot the victim in self-defense, contends that the trial court erred in failing to instruct the jury clearly that he could invoke justification as a defense. However, the transcript shows that the trial court gave the pattern jury instruction on the defense of justification, as specifically requested by Davis. Because Davis “himself requested this charge ․, he is precluded from attacking it on appeal. [Cit.]” Parker v. State, 276 Ga. 598, 600(4), 581 S.E.2d 7 (2003). Subsequently, during deliberations, the jury asked a question regarding justification. In response, the trial court reread to the jury the entire pattern charge on justification. Contrary to Davis' claim, the trial court committed no error since, “viewed as a whole, the recharge was a correct and accurate statement of the law.” Wilson v. State, 268 Ga. 527, 529(3), 491 S.E.2d 47 (1997). A short time later, the jury posed another question, asking if the commission of a felony automatically nullified any claim of self-defense. Davis suggested that the trial court simply recharge the jurors that it is their duty to apply the law to the facts. That is precisely what the trial court did, instructing the jury that it must determine the facts from the evidence and apply the law as charged to those facts. “Even if the charge was incorrect, such invited error is not grounds for reversal. [Cit.]” Whatley v. State, 270 Ga. 296, 300(10)(d), 509 S.E.2d 45 (1998).

3. Davis claims that in responding to a question from the jury during deliberations, the trial court erroneously failed to instruct the jury that it must consider all of the circumstances in determining whether the drug offense underlying the felony murder charge was inherently dangerous or created a foreseeable risk of death. However, Davis “neither raised the objection currently under scrutiny nor reserved the right to raise additional objections in post-conviction reviews. [Cit.] Accordingly, appellate review of the issue has been procedurally defaulted. [Cits.]” Pickren v. State, 272 Ga. 421, 423(2), 530 S.E.2d 464 (2000). See OCGA § 17-8-58; McFadden, Brewer, Sheppard, Cork, Snyder & Webster, Ga. Appellate Practice (2008-2009 ed.), § 9-21, p. 310 (effective July 1, 2007, criminal defense counsel no longer has the right to reserve objections to the jury charge, but must inform trial court of specific objections).

Judgment affirmed.

CARLEY, Presiding Justice.

All the justices concur.