Bishop v. State

• Decision Date: 06 July 1999
• Docket Number: No. S99A0015.,S99A0015.
• Citation: 271 Ga. 291,519 S.E.2d 206
• Parties: BISHOP v. The STATE.
• Court: Georgia Supreme Court

519 S.E.2d 206

271 Ga. 291

BISHOP v. The STATE.

No. S99A0015.

Supreme Court of Georgia.

July 6, 1999.

Cook & Connelly, Bobby Lee Cook, Summerville, Todd M. Johnson, Cohutta, for appellant.

Herbert E. Franklin, Jr., District Attorney, Thurbert E. Baker, Attorney General, Paula K. Smith, Senior Assistant Attorney General, Jayson Phillips, Assistant Attorney General, for appellee.

CARLEY, Justice.

A jury found Harold Lafaughn Bishop guilty of the felony murder of his wife. The trial court sentenced him to life imprisonment, and he appeals.¹

1. Construed in the light most favorable to the verdict, the evidence shows that, two days prior to her death, the victim told the sheriff of her fear that Bishop was going to kill her. Bishop admitted that he fired a shotgun at the victim, but testified that she had just pointed a handgun at him and had the same look as when she shot him nine times in 1991. The physical evidence indicates that several shotgun blasts struck the victim as she ate dinner. Her right arm held a bowl of food, a fork damaged by high-speed lead was found at the fingertips of her left hand, and the handgun was covered with dust on a nearby table. We conclude that a rational trier of fact could have found Bishop guilty of felony murder beyond a reasonable doubt. Jackson v. Virginia, 443 U.S. 307, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979); Harris v. State, 267 Ga. 435, 436(1), 479 S.E.2d 717 (1997).

2. Bishop contends that the trial court erroneously failed to give his request to charge the jury that the State had the burden of disproving his affirmative defense of justification beyond a reasonable doubt. When a defendant raises an affirmative defense and offers evidence in support thereof, the State has the burden of disproving that defense beyond a reasonable doubt. State v. Royal, 247 Ga. 309, 275 S.E.2d 646 (1981). It is reversible error for the trial court to decline to give a requested charge on the burden of proof, where, as here, the charge is a correct statement of the law and is adjusted to the evidence. Griffin v. State, 267 Ga. 586(1), 481 S.E.2d 223 (1997); State v. Shepperd, 253 Ga. 321, 320 S.E.2d 154 (1984). The holding to the contrary in Bruce v. State, 259 Ga. 798, 799(3), 387 S.E.2d 886 (1990) is hereby overruled. To the extent that any other case, including but not necessarily limited to Ross v. State, 268 Ga. 122, 125(7), 485 S.E.2d 780 (1997), cites Division 3 of Bruce v. State, supra, as controlling authority, it is also overruled. As noted by Chief Justice Benham's concurrence, the actual holding in Ross was correct because, in that case, there was no requested charge. Accordingly, Bishop's conviction must be reversed and his case remanded for a new trial. We address Bishop's remaining enumerations of error, as each raises an issue which is likely to recur on that retrial. Pickett v. State, 226 Ga.App. 743, 746(2), 487 S.E.2d 653 (1997). Compare Harrison v. State, 268 Ga. 574, 577(4), 492 S.E.2d 218 (1997).

3. Bishop complains of the trial court's refusal to give two requested charges on the "battered person syndrome."

Bishop offered evidence of actual danger from his wife immediately preceding the shooting. Such evidence would not authorize a charge on the battered person syndrome, since the issue in a battered person case "`is not whether the danger was in fact imminent, but whether, given the circumstances as (the defendant) perceived them, the defendant's belief was reasonable that the danger was imminent.' [Cit.]" (Emphasis in original.) Smith v. State, 268 Ga. 196, 200, 486 S.E.2d 819 (1997). Evidence of the battered person syndrome "is admissible to show `that the defendant had a mental state necessary for the defense of justification although the actual threat of harm does not immediately precede the homicide.'" (Emphasis supplied.) Smith v. State, supra at 199, 486 S.E.2d 819. However, the mere fact that Bishop offered evidence that danger from his wife immediately preceded the shooting does not mean that a charge on the battered person syndrome was unauthorized as a matter of law. A defendant who pursues alternative defense theories is entitled to requested charges on both theories, if there is some evidence to support each theory. Williams v. State, 209 Ga.App. 355, 356(1), 433 S.E.2d 361 (1993). See also Calloway v. State, 176 Ga.App. 674, 679(4), 337 S.E.2d 397 (1985). Thus, if, in addition to evidence of actual danger immediately preceding the homicide, Bishop also offered evidence of the battered person syndrome to show his reasonable, but erroneous, belief that danger was imminent, then the trial court should have given the requested instructions, as required by this Court's recent decision in Smith v. State, supra. On the other hand, Bishop would not be entitled to an alternative charge on the battered person syndrome if he failed to present evidence to support such a charge.

The battered person syndrome is a "complex area of human response and behavior." Johnson v. State, 266 Ga. 624, 627(2), 469 S.E.2d 152 (1996). Therefore, expert testimony must be admitted because it supplies an interpretation of the facts which differs from the ordinary lay perception. Johnson v. State, supra at 626(2), 469 S.E.2d 152. An opinion regarding the battered person syndrome, like the child sexual abuse accommodation syndrome, can "only be based on something more than mere observation." Carr v. State, 267 Ga. 701, 703(1), 482 S.E.2d 314 (1997). Thus, a defendant who relies upon the battered person syndrome should have an expert witness describe the syndrome, apply that model to the facts shown by the evidence, and opine that the defendant falls within the profile. Johnson v. State, supra at 626(2), 469 S.E.2d 152; Sanders v. State, 251 Ga. 70, 74(3), 303 S.E.2d 13 (1983). To make a prima facie showing of self-defense based upon the battered person syndrome, a defendant should present the opinion testimony of an expert as well as independent testimony regarding the historical facts upon which the expert relies. Chapman v. State, 258 Ga. 214, 216(2), 367 S.E.2d 541 (1988). See also Mobley v. State, 269 Ga. 738, 740(1), 505 S.E.2d 722 (1998). Although Bishop offered testimony that the victim had shot him in the past, he presented no expert testimony whatsoever. Therefore, he failed to make a prima facie showing of the battered person syndrome, and the trial court correctly refused to give the requested instructions on that syndrome. If, however, Bishop does make such a prima facie showing on retrial, then the trial court would be obligated by Smith v. State, supra, to charge the jury on the syndrome.

4. Bishop urges that the trial court erred in refusing to give a request to charge that the evidence of the victim's previous attack on him was relevant on the issue of whether he reasonably and honestly believed that deadly force was necessary to prevent death or great bodily harm to himself. The instruction on justification fully apprised the jurors of the use to which they might put the evidence of Bishop's prior difficulties with his wife without unduly emphasizing that evidence over other evidence. Thus, we find no error. Kittles v. State, 168 Ga.App. 123, 125(3), 308 S.E.2d 241 (1983).

5. Bishop contends that the trial court erred in failing to give his requested instruction on life insurance. The first sentence of this request stated that, "under the law, a wife may effectuate insurance upon her spouse; however, the insured spouse must be notified at his address of record." The trial court attempted to give this portion of the request, but erroneously omitted the word "insurance." This omission should not recur on retrial. The second sentence of the request states that, "[t]o allow the insuring of a person without his knowledge or consent could be a contributing factor toward the commission of a crime and could create a substantial risk to the unknowing insured." This portion of the request sets forth, in a somewhat argumentative fashion, the public policy reasons enunciated in Wood v. New York Life Ins. Co., 255 Ga. 300, 303-304, 336 S.E.2d 806 (1985), as support for the statutory requirement that an insurance company notify the insured of the issuance of a policy on his life. Jury instructions should set forth objective legal principles to be...