Chancellor v. State

• Decision Date: 07 February 1983
• Docket Number: No. 64919,64919
• Citation: 165 Ga.App. 365,301 S.E.2d 294
• Parties: CHANCELLOR v. The STATE.
• Court: Georgia Court of Appeals

Page 294

301 S.E.2d 294

165 Ga.App. 365

CHANCELLOR v. The STATE.

No. 64919.

Court of Appeals of Georgia.

Feb. 7, 1983.

Victoria D. Little, Decatur, for appellant.

Robert E. Wilson, Dist. Atty., Ann Poe Mitchell, Asst. Dist. Atty., for appellee.

SHULMAN, Chief Judge.

Appellant was tried for the murder of her husband's paramour and was found guilty of voluntary manslaughter. Asserting 55 enumerations of error, she now appeals from the judgment entered on that verdict. We affirm.

1. The bulk of appellant's enumerations are concerned with the content of the trial court's instructions to the jury. Appellant uses 13 enumerations of error alone to impress upon this court the trial court's failure to charge the jury on the law of justification. We agree with the trial court's decision that none of appellant's requested charges on justification was authorized by the evidence.

Contrary to appellant's repeated assertion, the slaying of an illicit lover by a wronged spouse in order to prevent adultery is not justifiable homicide. The Supreme Court has clearly stated that "so much of our state's current decisional law as allows a spouse to kill the illicit lover, we also reject ... [A]ny idea that a spouse is ever justified in taking the life of another--adulterous spouse or illicit lover--to prevent adultery is uncivilized. This is murder; and henceforth, nothing more appearing, an instruction on justifiable homicide may not be given." Burger v. State, 238 Ga. 171(1), 231 S.E.2d 769. The trial court correctly refused to give the jury instructions which were diametrically opposed to the position announced by the Supreme Court in Burger. Furthermore, it was not error for the trial court to inform the jury that a person was not justified in taking the life of a spouse's lover in order to prevent adultery. Id.

2. Reasoning that the decedent had intentionally inflicted great mental or emotional distress or injury on appellant by having an affair with appellant's husband, appellant sought a jury instruction that the shooting was justified if the jury found it was done to prevent the infliction of such mental injury. The trial court's refusal to give such an instruction was correct, since a person is justified in using deadly force only if he reasonably believes that it is necessary to prevent death or great bodily injury to himself or another. OCGA § 16-3-21, (a) (Code Ann. §§ 26-902, 27-207). We hold that mental anguish does not constitute "great bodily harm"; therefore, its alleged infliction does not justify killing the inflictor.

3. Appellant also argues that the jury should have been informed that justification was a possible defense to the murder charge because it was up to the jury to determine whether the facts presented at trial constituted an instance "which stand[s] upon the same footing of reason and justice as those enumerated in this [article]." OCGA § 16-3-20(6) (Code Ann. § 26-901). However, since the Supreme Court has ruled that prevention of adultery does not justify the killing of an illicit lover by a spouse (Burger v. State, supra), and we have ruled that mental anguish does not rise to the level of "great bodily harm" as it is used in OCGA § 16-3-21 (Code Ann. §§ 26-902, 27-207) (see Division 2 of this opinion), such an instruction was not authorized and the trial court committed no error in refusing to give it.

4. Since the jury was repeatedly instructed that the state had the burden of proving each element of the crime beyond a reasonable doubt, it was not error for the trial court to refuse to instruct the jury with regard to the state's burden separately as to each individual element.

5. Appellant asserts error in several of the jury instructions given on the elements of murder. Inasmuch as appellant was convicted of manslaughter and thereby acquitted of murder (Price v. Georgia, 398 U.S. 323, 90 S.Ct. 1757, 26 L.Ed.2d 300), she cannot have suffered harm from any alleged error concerning the instructions on murder, and we will not delve into them further.

6. In four of her enumerations, appellant contends that the trial court failed to charge the jury on important points of law. Although it did not use the phraseology suggested by appellant, the trial court satisfactorily charged the jury that defendant was presumed innocent; that the state had the burden of proving its case, including intent, beyond a reasonable doubt; that a conviction based on circumstantial evidence must exclude every reasonable hypothesis save that of the guilt of the accused; and that appellant's acts could be evidence of a diseased mind. No error resulted from the trial court's refusal to use appellant's charges on these issues. Stevens v. State, 247 Ga. 698(8), 278 S.E.2d 398.

7. Appellant presents several enumerations of error which focus on the content of the trial court's jury instructions on insanity as a defense.

"A person shall not be found guilty of a crime, if at the time of the act ... constituting the crime, the person did not have mental capacity to distinguish between right and wrong in relation to such act..." OCGA § 16-3-2 (Code Ann. § 26-702). In light of the statutory definition of insanity, the trial court's jury charge that being upset or distraught, or suffering from mental stress was not a defense if the defendant was able to distinguish right from wrong was a correct statement of the law and was not, as alleged by appellant, a judicial comment on the evidence.

8. Inasmuch as the state does not have the burden of proving the sanity of the accused beyond a reasonable doubt (Strickland v. State, 247 Ga. 219(19), 275 S.E.2d 29; State v. Avery, 237 Ga. 865, 230 S.E.2d 301), it was not error to refuse to give such an instruction to the jury. Likewise, it was not error to charge that the defendant had the burden of proving by a preponderance of the evidence her mental incapacity. The argument that such a charge impermissibly shifts the burden of proof to the defendant has been rejected by the appellate courts of this state in Boswell v. State, 243 Ga. 732, 256 S.E.2d 470 and Frier v. State, 157 Ga.App. 56, 276 S.E.2d 261.

9. Nor was it error to refuse to charge on delusional compulsion. Before such a defense is available, it must appear that the defendant was acting under a delusion which, if true, would justify her act. Brown v. State, 228 Ga. 215, 217, 184 S.E.2d 655. Since the delusion allegedly suffered by appellant (the adulterous affair between her husband and the victim) does not justify homicide (see Division 1), a charge on delusional compulsion was not authorized.

10. Appellant complains that the trial court's charge that a person is presumed to be of sound mind, that acts of such a person are presumed to be the product of his/her will, and that it may be inferred that such a person intends the natural and probable consequence of the act done, was impermissibly burden-shifting. See Sandstrom v. Montana, 442 U.S. 510, 99 S.Ct. 2450, 61 L.Ed.2d 39. The charge complained of was immediately followed by an instruction that the aforementioned presumptions were not conclusive, were rebuttable, and did not shift the burden of proof to the defendant. The trial court then iterated that the state had the burden of proving all elements of the crime beyond a reasonable doubt. This charge effectively removed any possible Sandstrom problem. Lackey v. State, 246 Ga. 331, 338-339, 271 S.E.2d 478.

11. The trial court instructed the jury that the reasonable man standard governed a person's act, and when an act violated that standard and a penal statute, the conduct was criminal unless excused by insanity. Contrary to appellant's assertions, the charge did not direct a verdict against her. While it added nothing to the jury charge as a whole, the questioned instruction stated valid principles of law and was adjusted to the evidence of the case. It, therefore, was not error to give the charge.

12. Appellant claims error in the trial court's refusal to charge the jury that it could not arbitrarily disregard a defense established by positive, uncontradicted, unimpeached testimony. Appellant asserts that testimony of her good character and insanity was positive, uncontradicted, and unimpeached and cites several civil cases in support of her position. Initially, we question appellant's characterization of the testimony as uncontradicted and unimpeached, but, even assuming arguendo appellant's characterization and the fact that this civil rule is applicable to the criminal arena, "opinionative testimony is not included in this rule." Thompson v. City of Atlanta, 66 Ga.App. 255, 17 S.E.2d 761.

13. Citing Reaves v. State, 146 Ga.App. 409(7), 246 S.E.2d 427 and Shropshire v. State, 81 Ga. 589, 8 S.E. 450, appellant finds error in the following charge: "[R]egardless of whether or not the Defendant has any other defense and regardless of whether or not there is any other evidence in the record upon which a reasonable doubt as to her guilt could be based, proof of good character may of itself constitute such a defense in her behalf; and you, the jury, overriding any amount of positive evidence pointing to the guilt of the Defendant may, as you see fit, acquit the Defendant upon the reasonable doubt and proof of good character generated in your minds." Since the jury was also instructed that "[t]he presumption of innocence may be considered as evidence of the innocence of the accused," the Reaves issue is not present because the trial court's charge, taken as a whole, allowed the jury to base a reasonable doubt on that presumption alone.

14. Nor was this jury restricted by the instruction as was the jury in Shropshire, supra. The Shropshire jury was told that good character was to be considered only if there was a doubt as to the defendant's guilt. Here, the jury was informed that good character, in and of itself, was a defense to the charge against appellant and, regardless as to whether or not there...