Felts v. State, 34901

Citation260 S.E.2d 887,244 Ga. 503
Decision Date23 October 1979
Docket NumberNo. 34901,34901
PartiesFELTS v. The STATE.
CourtSupreme Court of Georgia

Fred M. Hasty, Macon, for appellant.

W. Donald Thompson, Dist. Atty., Thomas J. Matthews, Asst. Dist. Atty., Arthur K. Bolton, Atty. Gen., Nicholas G. Dumich, Staff Asst. Atty. Gen., for appellee.

MARSHALL, Justice.

The appellant was convicted in the Bibb Superior Court of murdering Frank Hill on a sidewalk adjacent to the "Ball of Confusion" nightclub in Macon, Georgia. He was sentenced to life imprisonment. At the time of the homicide, a girl with whom the deceased previously had lived was seeing the appellant. The deceased accosted the appellant at the scene of the shooting, brandished a pistol, hit the appellant on the shoulder with the pistol, and threatened to kill the appellant if he "messed with" the girl again. According to the testimony of witnesses, the deceased put the pistol back in a shaving kit which he was carrying and began walking away. Then the appellant retreated into an alcove at the front door of the nightclub, pulled a pistol, and called out to the deceased. As the deceased was turning around, the appellant shot him once. After the first shot, the deceased dropped to his knees and pleaded, "Please don't shoot me. Don't kill me." The appellant proceeded to shoot him seven or eight times in rapid succession.

1. Although the appellant pleaded justification and self-defense, the testimony of the witnesses to the shooting fully authorized the jury in rejecting these defenses and finding the appellant guilty of murder. This disposes of the appellant's first three enumerations of error, in which he argues that the evidence is insufficient to support the verdict of guilty. See, e. g., Godfrey v. State, 243 Ga. 302, 253 S.E.2d 710 (1979).

2. The trial court correctly charged that if the state proved that the defendant killed the person named in the indictment by the use of a deadly weapon, the killing would be presumed to be intentional and malicious unless circumstances of alleviation, excuse or justification appeared to the satisfaction of the jury.

In enumeration of error 4, the appellant argues that the foregoing charge was erroneous under Patterson v. State, 239 Ga. 409 (4a), 238 S.E.2d 2 (1977); Jordon v. State, 232 Ga. 749 (5), 208 S.E.2d 840 (1974) and Smithey v. State, 219 Ga. 247 (3), 132 S.E.2d 666 (1963). As noted in Patterson, Smithey And Jordon, "seem to indicate" that if any of the state's evidence shows justification, mitigation or excuse, the homicide is not presumed to be malicious from the use of a deadly weapon. In the present case, the trial court charged the jury, in effect, that if circumstances of alleviation, justification or excuse appeared to the satisfaction of the jury, the killing would not be presumed to be malicious. Therefore, there can be no complaint that the charge was erroneous under Patterson, Smithey Or Jordon. In addition, in this case, as in Patterson, the totality of the evidence did not as a matter of law, show any cognizable circumstances of justification, mitigation or excuse. Enumeration of error 4 is, consequently, without merit.

3. In enumeration of error 5, the appellant argues that the trial judge erred in charging the jury, "If a person uses a deadly weapon or instrumentality, in the manner in which such weapon or instrumentality is ordinarily employed, to produce death, and causes the death of a human being, the law presumes intent to kill. This presumption may be rebutted." Citing Sandstrom v. Montana, 442 U.S. 510, 99 S.Ct. 2450, 61 L.Ed.2d 39 (1979), the appellant argues that this charge had the effect of shifting the burden to the defense to rebut the presumption of an intent to kill.

In the present case, the appellant defended the murder charge against him by arguing that he acted in self defense. The evidence that he did intend to kill the victim was overwhelming.

The trial judge charged the jury, "When, as in this case, some evidence of self-defense is offered by the defendant, the prosecution must prove beyond reasonable doubt that the defendant did not act in self-defense before the state would be entitled to a verdict of guilty . . . the burden is upon the state of proving the defendant's guilt as charged beyond a reasonable doubt."

It is a fundamental rule of law that jury instructions must be viewed as a whole. Nunnally v. State, 235 Ga. 693 (5), 221 S.E.2d 547 (1975); Proctor v. State, 235 Ga. 720, 726-727, 221 S.E.2d 556 (1975); Hilton v. State, 233 Ga. 11, 12, 209 S.E.2d 606 (1974). When viewed as a whole, we find that any possible error in the jury instructions as to the intent-to-kill presumption was clearly harmless. This enumeration of error is without merit.

4. In enumerations of error 6 and 7, the appellant argues that the trial court erred in allowing the prosecution to impeach him concerning testimony he had given at a previous trial in which he admitted lying to his attorney that someone at the scene of the shooting had handed him the gun used to commit the killing. The appellant maintains that a proper foundation was not laid for impeachment of him in this manner and, in addition, that his attorney-client privilege was violated by permitting impeachment of him in this manner.

We do not disagree that compelling the appellant to answer whether he had lied to his attorney concerning his possession of the murder weapon...

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