Blackmon v. State, A90A1441

• Decision Date: 02 October 1990
• Docket Number: No. A90A1441,A90A1441
• Citation: 197 Ga.App. 133,397 S.E.2d 728
• Parties: BLACKMON v. The STATE.
• Court: Georgia Court of Appeals

Page 728

397 S.E.2d 728

197 Ga.App. 133

BLACKMON v. The STATE.

No. A90A1441.

Court of Appeals of Georgia.

Oct. 2, 1990.

John D. McCord III, for appellant.

Robert E. Wilson, Dist. Atty., Desiree L. Sutton, Shawn E. LaGrua, Asst. Dist. Attys., for appellee.

McMURRAY, Presiding Judge.

Defendant was convicted of three counts of aggravated assault and one count of criminal damage to property in the first degree. The evidence showed that defendant poured gasoline onto a bed occupied by his wife and two step-children and that he then ignited the gasoline while the mother and children were on the bed. Upon the denial of his motion for new trial, defendant appeals. Held:

1. Defendant first contends the trial court erred in "failing to consider [his] own sworn testimony" before making a determination that his custodial statement was freely and voluntarily made. This contention is not supported by the record. The trial court heard from defendant, as well as the interrogating police officer, before determining that defendant's custodial statement was made "voluntarily [and] freely...."

During a hearing conducted pursuant to Jackson v. Denno, 378 U.S. 368, 84 S.Ct. 1774, 12 L.Ed.2d 908 (1964), defendant testified that his custodial statement was made while he was under the strain of injuries sustained during the incident which forms the basis of the crimes charged. More specifically, defendant testified that he requested medical treatment ("aspirin" for a "hurting" head) before the interrogation and that his request was not honored by the interrogating officer, Paul Kelhofer of the DeKalb County Police Department. Defendant further testified that Officer Kelhofer "convinced [him] that the only way [he] would get a bond ..." was to give a statement. Defendant also testified that the officer was "trying to throw [him] off guard ..." during the interview by "acting like a guy from the street."

Officer Kelhofer testified that he did not "threaten or coerce ..." defendant into making a statement; that he did not promise defendant the benefit of hope or reward in exchange for a statement; that defendant did not appear to be under the influence of alcohol at the time of the interview and that defendant was advised of his Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966), rights before interrogation. The officer further testified that defendant appeared to understand his constitutional rights and that defendant "voluntarily" executed a "Miranda rights waiver form ..." before submitting to the interview. Officer Kelhofer admitted that defendant "complain[ed] about his head hurting ..." and that defendant "told [him about] a cut to the head[, but the officer explained that he] didn't notice any blood ..." around the "cut" and that defendant did not request medical attention for the injury. Officer Kelhofer testified that he did not seek treatment for defendant's head wound before the interview because defendant was "eager to tell ... what had happened" and because the "cut" did not appear to require "immediate" medical attention. The trial court found that "defendant did make the statement voluntarily [and] freely, based on the officer's testimony."

" 'Factual and credibility determinations as to voluntariness of a confession are normally made by the judge at a suppression hearing and must be accepted by appellate courts unless such determinations are clearly erroneous. Griswold v. State, 159 Ga.App. 22, 23(2) (282 S.E.2d 679) (1981).' Sanders v. State, 182 Ga.App. 581(1), 582 (356 S.E.2d 537) [1987]." Washington v. State, 192 Ga.App. 678, 680, 385 S.E.2d 767 (1989). In the case sub judice, the trial court did not abuse its discretion in discounting defendant's credibility. Officer Kelhofer's testimony was sufficient to authorize a finding that defendant's statement was freely and voluntarily made. See LaRue v. State, 171 Ga.App. 371, 372, 319 S.E.2d 468 (1984).

2. In his second enumeration, defendant contends the trial court erred in failing to charge that "the jury must find [defendant's] alleged statement while in police custody to have been freely and voluntarily made."

" 'Under established Georgia law there is no necessity to give a charge on the subject of the voluntariness of a confession unless there is a specific request for it. (Cits.)' Thomas v. State, 233 Ga. 237, 241 (210 S.E.2d 675). [1974]" Welch v. State, 235 Ga. 243, 246(2), 219 S.E.2d 151 [1975]. In the case sub judice, defendant made no such request. Consequently, the trial court did not err in failing to charge the jury on the subject of the voluntariness of defendant's custodial statement.

3. Next, defendant contends the trial court erred in charging the jury that "[a]n inference of guilt may arise from flight and that the flight of the accused, if not satisfactorily explained, is a fact which may be taken into consideration as having a tendency to establish guilty (sic)." Defendant argues that this instruction is "burden-shifting [because it] suggests that [he] had a duty to explain his purported flight."

To begin, defendant's brief does not accurately reflect the trial court charge on flight. The trial court's instruction on flight provides as follows: "An inference of guilt may arise from flight and that the flight of an accused, if not satisfactorily explained, is a fact which may be taken into consideration as having a tendency to establish guilty [sic]." (Emphasis supplied.) It is from this perspective that we consider defendant's contention that the trial court's charge on flight was unconstitutionally burden-shifting.

"A presumption or inference is an evidentiary device which authorizes the jury to find the existence of a fact from proof of one or more other facts. Such devices are not invalid per se. See, e.g., Ulster County v. Allen, 442 U.S. 140, 156 (99 S.C. 2213, 60 L.Ed.2d 777) (1979). However, a device may not, consistent with the constitutional requirement that a criminal defendant's guilt must be proven beyond a reasonable doubt, lessen or shift the state's burden of proof. Sandstrom v. Montana [442 U.S. 510 (99 S.C. 2450, 61 L.Ed.2d 39) (1979) ]. Whether an evidentiary device has such an impermissible effect depends upon whether it is permissive or mandatory. A permissive device is valid if it is rational[, i.e., is there a rational connection between the fact proved and the ultimate fact that may be inferred]. Williamson v. State, 248 Ga. 47 (281 S.E.2d 512) (1981). A mandatory inference or presumption concerning an element of the offense is invalid, and this is so whether it is mandatory-conclusive or mandatory-rebuttable. Sandstrom v. Montana, supra, 442 U.S. at 524 ....

"Whether the device is permissive or mandatory may be determined as follows: 'A permissive inference is an evidentiary device that permits, but does not require, the jury to infer the elemental fact from proof by the prosecutor of the basic fact. By contrast, a mandatory presumption instructs the jury that it must infer the elemental fact once the state has proved the basic fact. The difference between the two may be found in the presence or absence of "language of command" such as "shall be." An instruction containing a mandatory presumption commands that the jury reach a particular conclusion, while an instruction couched in terms of an inference merely suggests, but does not command, that the jury do so. Since a permissive inference does not require the jury to reach a certain conclusion, it does not affect the burden of proof, and therefore must meet only the "rational connection" test. A mandatory presumption, however, eases the prosecution's burden and, therefore, implicates both the "rational connection" test and the requirement that the prosecution prove every element of the offense beyond a reasonable doubt. (Doyel, Burden-Shifting Criminal Jury Instructions in Georgia, 38 Mer.L.R. 1, 4 (1988) (footnotes omitted).)' [footnote omitted]" Isaacs v. State, 259 Ga. 717, 734(35, b), 386 S.E.2d 316 (1989).

In the case sub judice, the trial court's instruction on flight could reasonably be read as a "permissive inference" rather...