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Final Copy 288 Ga. 756

S11A0050. COLLIER v. THE STATE. CARLEY, Presiding Justice.

A jury found Lester Collier guilty of the malice murder of Ben Sullen, Jr. The trial court entered judgment of conviction on the guilty verdict and sentenced Collier to life imprisonment. A motion for new trial was denied, and Collier appeals.* 1. Construed most strongly in support of the verdict, the evidence, including eyewitness testimony, shows that Collier threatened to defend himself by using a pipe against the victim. On the following day, Collier argued with the intoxicated victim in the street and struck him more than once with a metal pole or pipe as the victim started to walk away. Appellant fled, and a three or four-foot long, blood-stained pipe was found leaning against his mailbox. The victim died of blunt force trauma to the head and chest. The evidence was
The crimes occurred on September 2, 2005, and the grand jury returned an indictment on December 6, 2005. The jury found Collier guilty on February 8, 2008 and, on that same day, the trial court entered the judgment of conviction and sentence. The motion for new trial was filed on February 29, 2008, amended on March 24 and 25, 2009, and denied on July 20, 2010. Collier filed the notice of appeal on August 11, 2010. The case was docketed in this Court for the January 2011 term and submitted for decision on the briefs.
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sufficient to authorize a rational trier of fact to find Collier guilty of malice murder beyond a reasonable doubt. Jackson v. Virginia, 443 U. S. 307 (99 SC 2781, 61 LE2d 560) (1979); Walker v. State, 281 Ga. 521 (1) (640 SE2d 274) (2007). 2. Collier contends that the trial court erred by excluding evidence of the victim's propensity for violence when intoxicated and his reputation for carrying dangerous weapons. It has long been established that the victim's general reputation for violence, including his carrying of dangerous weapons, is inadmissible in a murder trial unless the defendant makes a prima facie showing that the victim was the aggressor, that the victim assaulted the defendant, and that the defendant was honestly attempting to defend himself. Alexander v. State, 285 Ga. 166, 167 (2) (675 SE2d 23) (2009); Cooper v. State, 249 Ga. 58, 61 (2) (287 SE2d 212) (1982); Campbell v. State, 222 Ga. 570, 573 (2) (151 SE2d 132) (1966). To meet this three-pronged test, Collier relies upon his own testimony showing that the intoxicated victim started an argument and tried to hit Collier with the pipe before he took it away, that the victim then swung at Collier with his fist, that Collier then struck the victim in the head with the pipe, and that, while the
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victim was staggering and reaching towards his pocket, Collier struck him on the head a second time with the pipe even though there was nothing to indicate to Collier that the victim had a weapon in his pocket. Standing alone, this testimony fails to show that Collier was honestly seeking to defend himself either time that he struck the victim with the pipe. See Cooper v. State, supra. Under that testimony, Collier had already disarmed the victim before striking him the first time and, after that first blow by Collier with the metal pipe, the victim neither committed nor demonstrated the ability to commit any further assault against Collier. "Justification can not be based on a deadly assault which has been completely ended, unless the assailant has some further apparent ability to continue it." Cochran v. State, 9 Ga. App. 824, 825 (1) (72 SE 281) (1911). "Furthermore, `(t)he doctrine of reasonable fear does not apply to any case of homicide where the danger apprehended is not urgent and pressing, or apparently so, at the time of the killing.' [Cit.]" Carter v. State, 285 Ga. 565, 566 (2) (678 SE2d 909) (2009). Verbal threats and fisticuffs do not justify the use of deadly force. Felder v. State, 273 Ga. 844, 846 (4) (545 SE2d 918) (2001); Lewis v. State, 268 Ga. 83, 84 (2) (485 SE2d 212) (1997). Contrary to Collier's further argument, he is not "permitted to establish the
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prima facie case of justification by using the very evidence for which the prima facie case serves as foundation." Walden v. State, 267 Ga. 162, 164 (2) (b) (476 SE2d 259) (1996). Collier also complains that the three-pronged test should not be used to determine whether the victim's reputation for violence is admissible, because it is not used to determine whether the jury should be charged on justification. As already indicated, however, that three-pronged test is an essential and longstanding prerequisite to application of the reputation exception to the venerable rule that evidence of a victim's character is inadmissible. We reaffirm the threepronged test in this context regardless of whether it has a role to play in determining the applicability of instructions on justification. Compare Buice v. State, 281 Ga. App. 595, 598 (3) (636 SE2d 676) (2006) with Shackelford v. State, 270 Ga. App. 12, 16 (2) (606 SE2d 22) (2004). 3. Collier urges that the trial court violated OCGA

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