Brown v. State, S94A0099

• Decision Date: 21 March 1994
• Docket Number: No. S94A0099,S94A0099
• Citation: 264 Ga. 48,441 S.E.2d 235
• Parties: BROWN v. The STATE.
• Court: Georgia Supreme Court

Page 235

441 S.E.2d 235

264 Ga. 48

BROWN v. The STATE.

No. S94A0099.

Supreme Court of Georgia.

March 21, 1994.

Joe H. Thalgott, Celia Larsen, Larsen & Larsen, William Washington Larsen, Jr., Larsen & West, Dublin, for Brown.

Ralph M. Walke, Dist. Atty., Dublin, Michael J. Bowers, Atty. Gen., Atlanta, for State.

BENHAM, Presiding Justice.

Appellant was convicted of malice murder and sentenced to life imprisonment in connection with the death of a man appellant claimed to have shot in self defense. ¹ On appeal, he contends that the evidence was insufficient to support the verdict, that the trial court erroneously denied a motion for new trial, and that the trial court's instructions to the jury contained reversible error.

1. The State presented evidence that the unarmed victim was fatally wounded in appellant's home by any one of the three shotgun blasts fired by appellant that struck the victim in the jaw, the chest, and the abdomen. The sheriff to whom appellant reported the homicide testified that appellant told him that he had been awakened from his slumber on a sleeper sofa at dawn by the sound of the unlocked front door closing. When a tall male stranger stood beside the bed, appellant grabbed a nearby loaded shotgun and fired the fatal shots. A pack of Kool cigarettes was found on an end table adjacent to the sleeper sofa. During the homicide investigation which followed, the Georgia Bureau of Investigation case agent interviewed several people who had seen appellant and the victim together at a fast-food restaurant and a private club in the early morning hours of the day the victim was killed. The agent also learned that appellant smoked Marlboro cigarettes, that the victim smoked Kool cigarettes, and that the victim had purchased a pack of Kool cigarettes while with appellant several hours before the homicide. The victim's brother testified that the victim considered appellant, whom he had met while both were receiving care in an alcohol treatment center, as a friend.

When confronted with this evidence, appellant told several versions of the events. He initially admitted he had been with the victim, but asserted he had just met the victim that day. He told the GBI agent that he and the victim went to appellant's residence, that the victim left without entering appellant's home when appellant would not give him a ride home, that appellant fell asleep but was awakened by the return of the victim and, frightened, shot him. Appellant later stated that he had shot the victim after the victim, while standing over appellant's bed, had threatened to hurt appellant if he did not drive the victim home. At trial, appellant testified that he had been with the victim, but had dropped him off approximately two miles from appellant's home, telling him a neighbor would drive him anywhere for pay. Several hours later, appellant awoke and kicked a man who had entered his darkened home. As the intruder picked himself up and threatened to kill appellant, appellant grabbed his shotgun and killed the intruder. There was sufficient evidence to authorize a jury to conclude beyond a reasonable doubt that appellant murdered the victim. Jackson v. Virginia, 443 U.S. 307, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979).

2. During the State's closing argument, appellant's attorney moved for a mistrial on the ground that the district attorney was suggesting that appellant and his attorney had fabricated testimony to present a justification defense. Defense counsel renewed his motion after the trial court instructed the district attorney to make it clear in his argument that he was not saying counsel suggested to appellant what his story should be, and told the jury that they should not imply from the prosecutor's remarks that defense counsel had engaged in wrongdoing and instructed them to disregard any impression of wrongdoing they might have drawn.

When a motion for mistrial is based on purportedly improper statements of a prosecutor, the trial court is authorized to take such action as it deems necessary to prevent harm to the defendant, and a new trial will not be granted unless it is clear that the action taken did not eliminate the statement from the jury's consideration. Chancey v. State, 256 Ga. 415(10), 349 S.E.2d 717 (1986). In the case at bar, the trial court was specific in its curative instructions that the jury disregard any improper inference it might have drawn from the argument. Furthermore, the statement made by the prosecutor was a logical deduction from the evidence that appellant did not tell investigating officers of the threat the victim purportedly made until he had spoken with an attorney who, in appellant's words, "may have" explained the justification defense to appellant. See Alexander v. State, 263 Ga. 474(2a), 435 S.E.2d 187 (1993).

3(a). Citing Cage v. Louisiana, 498 U.S. 39, 111 S.Ct. 328, 112 L.Ed.2d 339 (1990), appellant contends due process was violated by the portion of the trial court's jury instruction on reasonable doubt which stated, "the State is not required to prove the guilt of the accused beyond all doubt or to a mathematical certainty. Moral and reasonable certainty is all that can be expected in a legal investigation." ²

In Cage, supra, the Supreme Court of the United States invalidated a jury instruction because it impermissibly equated reasonable doubt with a "grave uncertainty" and an "actual substantial doubt," and referred to "moral [and reasonable] certainty." Where, as here, the jury charge properly defined reasonable doubt, ³ a reference to a "moral and reasonable certainty" did not lessen the burden of proof necessary to obtain a conviction, and therefore did not violate the Due Process Clause. Bradford v. State, 261 Ga. 833(2), 412 S.E.2d 534 (1992); McDuffie v....