Barge v. State

• Decision Date: 16 July 2002
• Docket Number: No. A02A0989.,A02A0989.
• Citation: 256 Ga. App. 560,568 S.E.2d 841
• Parties: BARGE v. The STATE.
• Court: Georgia Court of Appeals

568 S.E.2d 841

256 Ga. App. 560

BARGE v. The STATE.

No. A02A0989.

Court of Appeals of Georgia.

July 16, 2002.

Maria Murcier-Ashley, for appellant.

J. Tom Morgan, Dist. Atty., Robert M. Coker, James M. McDaniel, Jeanne M. Canavan, Asst. Dist. Attys., for appellee. BLACKBURN, Chief Judge.

Following a jury trial, Stanley Barge was found guilty but mentally ill of aggravated battery, carrying a concealed weapon, obstruction of a police officer, and two counts of aggravated assault. Barge appeals, contending: (1) the trial court erred by allowing the State to ask the defendant's expert witness what effect Barge's brother's criminal record would have on his diagnosis of Barge's mental condition; (2) the verdict was erroneous because Barge proved that he was legally insane; (3) the trial court erred by providing an instruction to the jury as to when using force is not justified; (4) it was error for the trial court to repeat, sua sponte, the definitions of aggravated assault, obstruction of an officer, and aggravated battery in its charge to the jury; (5) it was error for the trial court to refuse to grant a mistrial or give curative instructions relating to testimony about Barge's competency to stand trial; and (6) trial counsel was ineffective because of her failure to request a mistrial or request curative instructions concerning the testimony related to Barge's competency to stand trial. We affirm.

On appeal from a criminal conviction, the appellant no longer enjoys the presumption of innocence. The evidence is viewed in the light most favorable to the verdict under the standard of Jackson v. Virginia.¹ See Robinson v. State.² So viewed, the record shows that, on June 29, 1999, Barge approached the counter of the Shake & Burger in the food court at Avondale Mall. Cursing, Barge demanded a hamburger and was told that the restaurant was closed. Moments later, Barge returned to the counter, grabbed the owner's hand, demanded money, and pulled back his jacket to reveal a handgun. The restaurant owner jumped over the counter and began to run. Barge opened fire, hitting the victim twice. Shortly thereafter, Barge pointed his gun at a mall security guard, who fired his own gun and instructed Barge to put his gun down. Barge eventually complied and was restrained by the security guard.

At trial, Barge asserted a defense of insanity. The jury, however, rejected this defense and found Barge guilty but mentally ill.

1. Barge contends that Dr. Owens, the defendant's expert on his mental condition, should not have been allowed to testify, over an objection, as to what effect knowledge of Sidney Barge's (Stanley's brother) criminal convictions would have had on Dr. Owens' diagnosis of Stanley Barge. Barge alleges the State used erroneously admitted impeachment evidence to attack the credibility and conclusions of Barge's expert witness. Barge contends the impeachment evidence was improper because not all of the crimes were crimes of moral turpitude, and, therefore, not admissible for impeachment purposes, and the simple battery charge had not been properly proved by a certified copy of the conviction.³

During cross-examination, Sidney Barge admitted to convictions of three counts of armed robbery, two counts of felony shoplifting, a felony count of receiving stolen property, and misdemeanor counts of fleeing an officer and obstruction of an officer. Certified copies of the convictions were admitted over an objection to admission of the entirety of the copies.

"[C]rimes involving moral turpitude are restricted to the gravest offenses, consisting of felonies, infamous crimes, and those that are malum in se and disclose a depraved mind." (Punctuation omitted.) Polk v. State.⁴ The misdemeanors, fleeing an officer and obstruction of an officer, do not fit within the definition of crimes of moral turpitude, and simple assault is not such a crime. Id. Even if simple assault had been a crime of moral turpitude, a certified copy of the conviction was not admitted into evidence as was done for the other crimes used to impeach the testimony of Sidney Barge. Sapp v. State.⁵

Although Barge made an objection to the expert's explanation of the effect of the obstruction and assault (battery) charges on his evaluation of Stanley Barge, there is no indication in the record as to the grounds for these objections. "In order to raise on appeal contentions concerning admissibility of evidence the specific ground of objection must be made at the time the evidence is offered, and a failure to do so will be considered as a waiver. All evidence is admitted as a matter of course unless a valid ground of objection is interposed." Caldwell v. State.⁶

Furthermore, even though admission of the misdemeanor convictions was error, it was harmless. The evidence of the felony convictions was properly introduced, and, therefore, it is likely the effect on the expert's evaluation of Stanley Barge would not have been altered significantly if the misdemeanor charges were excluded. In fact, Dr. Owens testified that even if all of Sidney Barge's statements about his brother were eliminated from consideration, it would not have had a major impact on his opinion of Stanley Barge's mental condition.

2. Barge contends the verdict of guilty but mentally ill was erroneous because he had proved insanity by a preponderance of the evidence. Insanity is an affirmative defense, and, therefore, "[t]he appropriate standard of appellate review is whether the evidence, when construed most favorably for the State, would be sufficient to authorize a rational trier of fact to find that appellant failed to prove by a preponderance of the evidence that [Barge] was insane at the time of the crimes." (Punctuation omitted.) Lawrence v. State.⁷

Under Georgia law, the jury is entitled to presume an individual is sane unless such presumption is rebutted. OCGA § 16-2-3. "Jurors are not bound by the opinions of either lay witnesses or expert witnesses as to the question of sanity and they may rely on the basic presumption existing under our law. The jury is free to reject expert testimony as to sanity and may find an accused sane even without positive testimony as to sanity." (Punctuation omitted.) Wilson v. State.⁸

On the other hand, juries may not rely solely on the rebuttable presumption of sanity, when the proof of insanity is over-whelming. Keener v. State.⁹ To support a finding that Barge is not guilty of a criminal act, his defense must show: "(1) that [Barge] was laboring under a delusion; (2) that the criminal act was connected with the delusion under which [Barge] was laboring; and (3) that the delusion was as to a fact which, if true, would have justified the act." Stevens v. State.¹⁰

In the present case, the State presented evidence that Barge was arguing with the victim prior to the shooting, carried a concealed gun, demanded money, and came to the mall even though God told him that someone was going to hurt him. There was also testimony that, after the shooting, Barge hid behind a pillar and pointed his gun at the security guard, followed orders to lie down and throw the gun out, and calmly told the security guard the caliber of his gun. Testimony from the police officer interviewing Barge after the incident indicated Barge understood his Miranda rights, and he was acting angry and hostile rather than crazy. The State also attacked the credibility of Sidney Barge's testimony about his brother's unusual behavior before the incident by introducing evidence that he had been convicted of a number of felony crimes. A recording of Barge's interview with the police after the incident was viewed by the jury.

Testimony given by the State's expert, a forensic psychiatrist, was that Barge's statement to the police was coherent, and that while he was in the state hospital after the incident, he displayed no psychotic behavior and was not under medication. In an interview at the hospital with this psychiatrist, Barge denied hearing voices and having any special connection to God. It was the expert's opinion that on the day of the incident, Barge could distinguish right from wrong, that if he had delusions, there was no compulsion to act, and, in fact, if he had a premonition that the event would happen, he would have sought to avoid it. Dr. Sachy also testified that there was conflicting information about Barge's substance abuse history, and that his behavior immediately before and during the incident was consistent with a substance-induced psychosis. In the interview with the expert, Barge told Dr. Sachy that he knew the crimes were wrong and tried to justify them.

The defense presented testimony by Barge's great-uncle and Sidney that his behavior had not been normal for about a year and a half, since an accident in which his wife and son were injured. His great-uncle testified that Stanley Barge talked to dead relatives and told his great-uncle that his wife and son were devils. Sidney testified that Barge burned meat saying it was for "feeding his fathers," that he stated that witches and demons were after him, and that he had talked with dead relatives; but the credibility of his testimony was impeached by the State by introduction of his criminal convictions. A former co-worker testified that, on the day of the incident, Barge had come to the work site, wanted to come back to work, was demanding and nervous, and said that witches talked to him in the night.

A number of witnesses at the mall on the day of the incident indicated that Barge was not acting normally or was acting crazy. In contrast to the State's expert, Dr. Owens testified that, on the day of the incident, Barge was suffering from a psychotic disorder, felt he was acting in self-defense, and, after the shooting, did not think he had done anything wrong. The defense presented evidence of either mental illness or insanity, which presented an issue for resolution by the jury....