Aldridge v. State

• Citation: 365 S.E.2d 111,258 Ga. 75
• Decision Date: 02 March 1988
• Docket Number: No. 44863,44863
• Parties: ALDRIDGE v. STATE.
• Court: Supreme Court of Georgia

Page 111

365 S.E.2d 111

258 Ga. 75

ALDRIDGE v. STATE.

No. 44863.

Supreme Court of Georgia.

March 2, 1988.

Reconsideration Denied March 16, 1988.

James M. Bivens II, Thomas S. Bishop, Short & Fowler, Moultrie, for Derrick Wayne aldridge.

J. David Miller, Charles M. Stines, Asst. Dist. Attys., H. Lamar Cole, Dist. Atty., Valdosta, Michael J. Bowers, Atty. Gen., J. Michael Davis, Asst. Atty. Gen., for the State.

CLARKE, Presiding Justice.

Aldridge faces a life sentence after his conviction of the malice murder of Lorenzo Lamar. He was also convicted of possession of a firearm during the commission of a crime and was sentenced to a term of years. Three and a half days after the victim hit appellant in the head with a beer bottle during an altercation, the victim passed by appellant, who was sitting on his porch smoking marijuana laced with cocaine. The appellant chased the unarmed victim into a grocery store, cornered him behind the meat counter, and shot him. Appellant appeals from his conviction, enumerating three errors.

1. We find that the evidence here is sufficient to meet the requirements of Jackson v. Virginia, 443 U.S. 307, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979).

2. Aldridge contends the court erred in refusing to charge the jury as to voluntary manslaughter pursuant to a written request. We held in State v. Stonaker, 236 Ga. 1, 2, 222 S.E.2d 354 (1976): "The state or the accused may, by written application to the trial judge at or before the close of the evidence, request him to charge on lesser crimes that are included in those set forth in the indictment or accusation, and his failure to so charge as requested, if the evidence warrants such requested charge or charges, shall be error."

This presents the question of whether the evidence supports a finding of provocation demanding a manslaughter charge. If the evidence of provocation was not sufficient, the court did not err in refusing to give the charge. Bowen v. State, 241 Ga. 492, 246 S.E.2d 322 (1978). Aldridge argues that the victim's hitting him in the face with a beer bottle was sufficient provocation to mandate a charge on voluntary manslaughter. However, three and a half days elapsed between the injury to appellant and the murder. Appellant contends that OCGA § 16-5-2 reserves the question of the cooling off period for the jury and that it cannot be considered by the court in assessing Aldridge's request to charge. "Although the jury is the judge of whether there was an interval between the provocation and killing sufficient for the voice of reason and humanity to be heard, it is a question of law for the courts to determine whether there is slight evidence that the defendant acted as the result of sudden, violent and irresistible passion resulting from serious provocation." Henderson v. State, 234 Ga. 827, 218 S.E.2d 612 (1975). The court could conclude as a matter of law that the incident did not constitute even slight evidence of provocation because of the three and a half day cooling off period between the incident and the killing. See, Baker v. State, 238 Ga. 389, 233 S.E.2d 347, cert. denied, 431 U.S. 970, 97 S.Ct. 2931, 53 L.Ed.2d 1066 (1977). Therefore, appellant was not entitled to a manslaughter charge.

3. Appellant assigns error to the court's refusal to exclude statements given during custodial interrogation. He insists that because he did not sign a waiver of rights form before talking to police the statements were not freely and voluntarily given. It is undisputed that he was given Miranda warnings and that he at no time requested an attorney. The refusal to sign a waiver of rights form before speaking to police does not render the statements involuntary and inadmissible. Once Miranda warnings are given and a person in custody gives a statement to police without invoking his right to remain silent and without requesting an attorney, he has in effect waived his rights. The refusal to sign a waiver form does not constitute an invocation of the right to remain silent or the right to counsel. The trial court did not err in finding that the statements were freely and voluntarily given despite the refusal of appellant to sign the waiver. Mitchell v. State, 254 Ga. 353, 329 S.E.2d 481 (1985).

4. Aldridge contends his conviction must be reversed because the state used seven of its ten peremptory strikes to strike blacks from the jury and both of its peremptory challenges to strike blacks during the selection of alternate jurors. He claims that the state thus used its peremptory strikes in a racially discriminatory manner in violation of the mandate of Batson v. Kentucky, 476 U.S. 79, 106 S.Ct. 1712, 90 L.Ed.2d 69 (1986). The trial court ruled: "[t]he Court will take judicial notice of the composition of the panels of Jurors. The Court will also take judicial notice of the fact that five of the fourteen Jurors selected in this case are black. That shows on its face and per se that there was no racial discrimination exercised by either party in this case. Consequently, the motion is overruled as Batson v. Kentucky would not be applicable in this matter." Aldridge insists that the case must be remanded for a determination whether the state had a racially neutral reason for the striking of each black juror.

This court directed the trial court to supplement the record showing the racial composition of the panels from which the jury was selected. The supplement reveals an inconsistency with defense counsel's statement to the trial court when he made the Batson motion. At that time he said his records indicated the state utilized nine of its ten strikes to remove black persons from the jury of twelve and both of its strikes to remove black persons from the alternate list. According to the supplement to the record, the state struck seven black persons and three white persons from the jury of twelve and two black persons from the alternate list. Defense counsel now stipulates the supplemented record to be correct. This emphasizes the importance of a complete record in cases involving the Batson issue. We hold that in the future the defendant in Batson type cases has the burden to complete the record with information revealing the racial composition of the panel from which the jury was selected, the racial breakdown of the strikes of both parties, and the racial composition of the resulting jury.

Batson appears to establish a progression of legal exercises leading to the conclusion of discrimination vel non. The first is the right to rely on the fact that peremptory strikes offer the prosecution a potential tool for discrimination. Second, the defendant must show membership in a racially cognizable group and that the prosecution used peremptory strikes to remove persons of his race from the jury. Then the defendant is burdened with showing that these facts and other relevant circumstances raise an inference of the prosecution's racial...