Murderpedia has thousands of hours of work behind it. To keep creating
new content, we kindly appreciate any donation you can give to help
the Murderpedia project stay alive. We have many
plans and enthusiasm
to keep expanding and making Murderpedia a better site, but we really
need your help for this. Thank you very much in advance.
Michael
Anthony COHEN
COHEN v. THE STATE.
44457.
(257 Ga. 544)
(361 SE2d 373)
(1987)
BELL, Justice.
Murder, etc. Glynn Superior Court. Before Judge Taylor.
Michael Anthony Cohen was convicted by a Glynn
County jury of malice murder, burglary and possession of a firearm
by a convicted felon. He was sentenced to death.
1 He now appeals, raising six
enumerations of error. We affirm.
1. Cohen's first four enumerations of error
question the sufficiency of the evidence.
a. On the evening of October 14, 1985, the victim,
Auzzie Douglas, Sr., visited his son, Auzzie, Jr., who lived nearby.
Shortly before 8:00 p.m., Auzzie, Sr. returned home.
His wife, Ruby Douglas, arrived home from work
soon afterwards. She observed a young man running away from the
front doorway of the house. Entering, she found her husband lying on
the living room floor, bleeding from his ear.
Barbara Waters, the victim's stepdaughter, called
him at 8:00 p.m. He answered the telephone, and then she heard some
noises that sounded like "he was banging a pot on the counter." She
"heard him holler and . . . heard something fall." She waited a few
moments, thinking perhaps he was playing a trick on her, and then
she heard her mother screaming Auzzie's name.
Ruby picked up the phone and told her daughter to
come over that something had happened to Auzzie. Then she called the
police.
The victim had been shot in the head -- just
behind his left ear -- and in the chest, and he had a gunshot wound
in the web of his left hand.
Police subsequently recovered a pistol that the
defendant sold that evening for $10. The gun, which belonged to the
victim, was identified by a ballistics examination as the murder
weapon.
The defendant's fingerprints were found on a
window screen where he had entered the victim's home.
When the defendant was arrested, police found on
his person a watch that had belonged to the victim.
After his arrest, the defendant gave several
statements to the police. He first claimed that he was somewhere
else at the time of the crime and had picked up the watch a few
minutes before he was arrested. When he was informed that his
fingerprints had been found at the crime scene, he conceded that he
"must have been there." He then claimed that, when he entered the
victim's house through the window, he saw a man lying on the floor,
and that he panicked and ran out the front door, just as someone
drove up.
When the police recovered the murder weapon, the
defendant changed his story again, stating that he saw the gun lying
next to the man on the floor and he stopped just long enough to
retrieve the gun before running away. When the police told the
defendant they did not believe his story, the defendant stated that
he did not mean to kill the victim, and that, if he could get a good
deal, he would be glad to tell the entire story.
The defendant gave several other statements,
including one in which he claimed to have been standing outside the
victim's home when he heard "two or two and a half gunshots." He
entered the home looking for something to take, took a watch, and
left.
At trial, the defendant testified that he had a
serious drug problem and that he needed money for drugs. He entered
the victim's home thinking no one was there. He entered the bedroom,
and took the watch and the gun. The telephone rang and, to his
surprise, someone answered. He turned around, saw the victim
standing in the doorway facing him, and he panicked, shot twice, and
ran.
b. The evidence overwhelmingly supports the
defendant's conviction for burglary, and the jury was authorized to
find that the defendant "unlawfully and with malice aforethought"
shot the victim as he stood talking on the telephone, facing away
from the defendant.
The evidence supports the conviction. Jackson v.
Virginia, 443 U. S. 307 (99 SC 2781, 61 LE2d 560) (1979).
c. The jury found two statutory aggravating
circumstances supporting the death sentence for the crime of murder:
(1) the offense of murder was committed while the offender was
engaged in the commission of the burglary, OCGA
17-10-30 (b) (2), and (2) the
defendant committed the offense of murder for the purpose of
receiving money or any other thing of monetary value, OCGA
17-10-30 (b) (4).
The defendant argues that these findings are not
supported by the evidence because the evidence clearly shows that
the defendant was an unarmed burglar . . . intent only on finding
goods that could be used to sustain his drug habit," who was
surprised by the owner of the home, and thereafter "totally
abandoned" his "undertaking to burglarize the victim's home" and
shot the victim only in attempt to extricate himself from an "unexpected
predicament." Hence, the defendant argues, he was no longer engaged
in the commission of burglary when he shot the victim, nor did he
commit murder for the purpose of receiving money or other things of
monetary value.
We cannot agree. Inasmuch as the defendant took a
gun and a watch belonging to the victim and shortly thereafter
pawned the gun, it cannot be plausibly argued that the defendant
abandoned his attempted burglary, for he clearly carried out his
original purpose for entering the home, i.e., to commit a theft
therein. See OCGA 16-7-1. Moreover,
one does not signal the abandonment of the offense of burglary by
the commission of the offense of murder. The jury was authorized to
conclude that the defendant committed murder in order to complete
the crime of burglary and for the purpose of obtaining two items
having monetary value -- the victim's watch and gun. See Horton v.
State, 249 Ga. 871 (11) (295 SE2d 281) (1982).
2. The jury was instructed that if it found one
or more statutory aggravating circumstances, then it was to select
one of two penalties, penalty (A) being death, and penalty (B) being
life imprisonment.
At one point during the court's oral instructions,
the court told the jury, "If your recommendation is that the
defendant be sentenced to death by electrocution, after having
completed number one above, then Mr. Foreman, you would circle
either (A) or
The defendant argues that this "palpable error in
the charge . . . throws doubt on the verdict."
This error clearly was a slip of the tongue which
could not have misled the jury. See Gober v. State,
247 Ga. 652 (278 SE2d 386) (1981).
Moreover, any possible mistaken reliance on this erroneous charge
could only have benefitted the defendant.
3. The court did not err by refusing to answer
the jury's request for a definition of "life imprisonment in terms
of years in prison," or by responding that the jury was "bound" by
the charge that had been given and that such was "the law of this
state." See Quick v. State, 256 Ga. 780
(9) (353 SE2d 497) (1987); Westbrook v. State,
256 Ga. 776 (5) (353 SE2d 504) (1987).
Sentence Review
4. The evidence, as we have held, supports the
jury's finding of statutory aggravating circumstances. We do not
find that the sentence of death was imposed as the result of passion,
prejudice or other arbitrary factor.
It was shown that the defendant had been
convicted four times previously of burglary. He had been out of
prison for just over a month when he committed the crimes for which
he was convicted in this case. The sentence of death is neither
excessive nor disproportionate to sentences imposed in similar
cases, considering both the crime and the defendant. OCGA
17-10-35 (c).
APPENDIX.
ON MOTION FOR RECONSIDERATION.
Glenn Thomas, Jr., District Attorney, Michael J.
Bowers, Attorney General, Mary Beth Westmoreland, Assistant Attorney
General, for appellee.
Notes
1 The crime occurred on August 14,
1985, and Cohen was indicted October 23, 1985. The guilt-innocence phase
of Cohen's trial lasted from December 1 to December 4, 1986, and the
jury returned its guilty verdict on December 4. The sentencing trial
took place on December 5, and the jury returned its sentencing verdict
that day. Cohen filed a motion for new trial on December 30, 1986, and
amended the motion on February 16, 1987. The motion was denied on
February 17, 1987, and Cohen filed his notice of appeal on March 6,
1987. The case was docketed in this court on March 17, 1987, and was
orally argued on May 13, 1987.
John W. Davis, for appellant.
DECIDED OCTOBER 7, 1987 -- RECONSIDERATION DENIED OCTOBER 29, 1987.