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Berry v. State

The defendant ran over the victim, dragging him under his car and crushing his skull.

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A jury found James Berry guilty of felony murder of Nicolas Rotunno during the commission of aggravated assault, and the trial court sentenced him to life imprisonment. Berry filed a motion for new trial and, after the trial court denied that motion, he brought this appeal. 1. An independent review of the record shows the following: Rotunno was hosting a party at the residence he shared with his brother. An altercation developed, and several of the guests were asked to leave. One of the ousted guests phoned Derek Barker and informed him of the dispute. Barker passed the information along to Berry. A short time later, Berry, accompanied by Barker and two others, drove to the party, anticipating that a fight might take place when they got there. Upon their arrival, a confrontation did develop. Rotunno, who was armed with a knife, demanded that Berry and his three passengers leave. He was yelling and threatened to kill them. Rotunno struck the hood of the vehicle twice. When Berry and his three companions were in the car, Berry gunned the engine and drove at Rotunno who was standing in front of the vehicle. Rotunno tried to hold on to the hood to avoid injury. However, he was dragged underneath, was run over and his skull was crushed. The severe brain damage that he suffered resulted in his death.

Berry asserted a justification defense. Although he also requested a charge on accident, the trial court did not give that instruction, and he does not enumerate the failure to give it as error. The jury was unable to reach a verdict on the malice murder count of the indictment, but found him guilty of felony murder while in the commission of aggravated assault. When construed most strongly in support of the jury’s verdict, the evidence is sufficient to authorize a rational trier of fact to find proof beyond a reasonable doubt that Berry was guilty of that offense. Jackson v. Virginia , 443 U. S. 307 99 SC 2781, 61 LE2d 560 1979; Martin v. State , 283 Ga. App. 652 642 SE2d 340 2007.

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