Blankenship v. State, 36970

• Decision Date: 06 May 1981
• Docket Number: No. 36970,36970
• Parties: BLANKENSHIP v. The STATE.
• Court: Georgia Supreme Court

Page 505

277 S.E.2d 505

247 Ga. 590

BLANKENSHIP v. The STATE.

No. 36970.

Supreme Court of Georgia.

May 6, 1981.

John W. Hendrix, Hendrix & Shea, Savannah, for Roy Willard blankenship.

Andrew J. Ryan, III, Dist. Atty., Savannah, Arthur K. Bolton, Atty. Gen., for the State.

CLARKE, Justice.

The defendant was indicted for the offenses of aggravated sodomy, burglary, murder and rape. He was found guilty of burglary, murder and rape, and sentenced to death for murder and two 20-year sentences for burglary and rape to run consecutive to the death sentence, but concurrent to each other. The case is here on direct appeal and mandatory sentence review.

ENUMERATIONS OF ERROR

1. In his first four enumerations of error, the defendant contends that the evidence was insufficient to sustain the verdict and the sentence. From the evidence presented at trial, the jury was authorized to find the following factual situation: In the early morning hours of March 2, 1978, the defendant left a bar at which he had been drinking and began to walk home. As he walked past the victim's upstairs apartment, he decided that he wanted to break in. The victim was a seventy-eight year old female for whom defendant had done repair work. The defendant climbed up a railing to a porch of the victim's apartment where he kicked out the lower pane of a window. After waiting and watching briefly, defendant entered the apartment. The victim, who suffered from a respiratory illness, was sitting in a chair because she had trouble breathing when she slept. The defendant came up behind the victim and grabbed her by placing his hand over her mouth and nose to keep her from screaming. She struggled and fell from the chair; he fell on top of her. The victim became unconscious, and the defendant picked her up and took her back to the bed. She was dressed in pajamas, and he pulled her pajama bottoms down and raped the victim. He then dressed and left the victim's apartment the same way that he entered it. Neighbors concerned about the victim due to her poor health eventually discovered her body. The victim had been severely beaten, scratched and bitten. She had been forceably raped, and a plastic bottle was found inserted in her vagina. She had suffered severe trauma to her oral cavity although forensic evidence could not establish oral sodomy.

Footprints left by an unusually patterned sole were found at the scene and led toward the defendant's house. The defendant's fingerprints were found at the scene, and shoes identical to the type which made the prints were recovered from the defendant's possession. The defendant made a confession; however, he denied that he beat the victim severely and at trial he recanted part of his confession and stated that he was unable to consummate the rape.

Forensic evidence established that the victim died from heart failure brought on by the trauma. Scrapings taken from the fingernails of the victim established that her attacker had international type "O" blood, the same type blood that the defendant possessed. However, scrapings taken from the left hand of the victim showed both international group "O" blood and an unexplained presence of a minute amount of "B" antigen which would have been presented in individuals of an international group "B" type blood.

A very small segment of Negroid hair was found from combings of the victim's pubic hair. However, the state introduced testimony that the black attendant at the autopsy had handled the body, and the jury was authorized to find that the small segment of Negroid hair had come from that source.

We have reviewed the record in this case and find the evidence supports the verdict of the jury beyond a reasonable doubt. Jackson v. Virginia, 443 U.S. 307, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979).

2. The defendant's fifth enumeration of error argues that the trial court erred in not instructing the jury that if defendant was found guilty of felony murder, he could not be convicted of the underlying felony.

In the present case the defendant was found guilty of felony murder and therefore the underlying felony is a lesser included offense. Collier v. State, 244 Ga. 553, 261 S.E.2d 364 (1979); Atkins v. Hopper, 234 Ga. 330, 216 S.E.2d 89 (1975). While the court erred in failing to charge that defendant could not be convicted of felony murder and also the underlying felony, the remedy is not a new trial, but a reversal of the conviction of the underlying felony. Collier v. State, supra; Thomas v. State, 240 Ga. 393, 242 S.E.2d 1 (1977). To determine which felony formed the basis of the felony murder where more than one felony is charged in addition to the murder, one must look to the indictment, or if it is not specified as it is not in this case, then to the evidence. Collier v. State, supra. Following that rationale, in the instant case the evidence shows that the burglary was the initial felony which began the chain of circumstances which ultimately led to the death of the victim. Therefore, this offense merged with the felony murder conviction. The conviction for burglary alleged in Indictment No. 28455 is reversed, and the sentence as to that offense is vacated. Collier v. State, supra; Dampier v. State, 245 Ga. 427, 265 S.E.2d 565 (1980).

3. In enumeration of error six, defendant contends the trial court erred in charging on voluntary intoxication.

The trial court charged: "The fact that one accused of a crime was under the influence of alcohol or drugs at the time of the alleged crime may be shown as illustrative of his motive in the transaction but one voluntarily under the influence of alcohol or drugs is presumed to intend the legitimate consequences of his act and the question is whether he intended to do the act or whether he intended the consequences of the act. If a person under the influence of alcohol or drugs is sufficiently intelligent to know or understand and intend to do a certain act and to understand that certain consequences are likely to result from it and does the act, he is criminally liable for the consequences of his act.

"However, if because of the influence of alcohol or drugs one's mind becomes so impaired as to render him incapable of forming an intent to do the act charged, or to understand that a certain consequence would likely result from it, he would not be criminally responsible for the act.

"Whether or not that is true is a question for you, the jury, to determine."

The defendant argues that the first sentence of the trial court's charge violates the rule of Sandstrom v. Montana, 442 U.S. 510, 99 S.Ct. 2450, 61 L.Ed.2d 39 (1979). Sandstrom held that the charge, "The law presumes that a person intends the ordinary consequences of his voluntary acts," was unconstitutional for two reasons: (1) the jury may have interpreted that presumption as conclusive; and (2) the jury may have interpreted that presumption as shifting the burden of persuasion to the defendant on the element of intent. The Supreme Court of the United States held that either interpretation would violate the Fourteenth Amendment requirement that the state prove every element of a crime beyond a reasonable doubt.

Pretermitting that the defendant was found guilty of felony murder, Bridges v. State, 246 Ga. 323, 271 S.E.2d 471 (1980), and that the charge was more favorable to the defendant than required, Code Ann. § 26-704; McLaughlin v. State, 236 Ga. 577, 224 S.E.2d 412 (1976), we find no Sandstrom violation in the first sentence of the jury's instructions under attack. The trial judge charged the jury on the burden of proof, presumption of innocence, reasonable doubt, direct and circumstantial evidence, and that the burden is not upon the defendant to establish his innocence but that the burden is upon the state to prove his guilt. A jury instruction should not be considered in isolation, but the charge must be examined as a whole. Moses v. State, 245 Ga. 180, 263 S.E.2d 916 (1980), and cites. This charge is not similar to that charge considered in Sandstrom v. Montana, supra, but merely illustrates that the defendant has the burden, once criminal intent has been shown, of illustrating that his voluntary intoxication rose to a level required to negate intent. By its very terms, it is not a mandatory presumption and it is readily apparent that no reasonable jury would have viewed the instructions as mandatory or conclusive, nor would they have understood them as shifting the burden of persuasion to the accused as to a necessary element of the crime. See Patrick v. State, 245 Ga. 417, 265 S.E.2d 553 (1980). Affirmative defenses such as this one are permissible. Patterson v. New York, 432 U.S. 197, 97 S.Ct. 2319, 53 L.Ed.2d 281 (1977); Moses v. State, supra (insanity); Franklin v. State, 245 Ga. 141, 263 S.E.2d 666 (1980) (accident); Hinkle v. Iowa, 290 N.W.2d 28 (1980) (voluntary intoxication). See also, Simmons v. State, 246 Ga. 390, 271 S.E.2d 468 (1980); Lackey v. State, 246 Ga. 331, 271 S.E.2d 478 (1980); Skrine v. State, 244 Ga. 520, 260 S.E.2d 900 (1979).

4. In enumerations of error 8 and 9, the defendant contends the trial court erred in excluding three jurors as being conscientiously opposed to capital punishment. All three were asked if their feelings towards capital punishment are such they would never vote to impose the death penalty, regardless of what the facts in the case might be. Two jurors were unequivocal in their negative answer and the trial court did not err in excusing them. The answers of the third juror demand closer scrutiny. The colloquoy between the court and the juror was as follows:

"CLERK: Are any of you conscientiously opposed to capital punishment?

NOTE: (One juror raised his hand.)

THE COURT: All, you jurors have a seat. You remain standing there, please. What

JUROR: Lamar Halstead. It might be listed as John Halstead.

THE COURT: You are conscientiously opposed to capital punishment?

MR. HALSTEAD: Not not opposed to capital...