Chapman v. State

• Decision Date: 04 October 1993
• Docket Number: No. S93A1093,S93A1093
• Citation: 435 S.E.2d 202,263 Ga. 393
• Parties: CHAPMAN v. The STATE.
• Court: Georgia Supreme Court

Page 202

435 S.E.2d 202

263 Ga. 393

CHAPMAN v. The STATE.

No. S93A1093.

Supreme Court of Georgia.

Oct. 4, 1993.

Ronald B. Hatcher, Megan DeVorsey, Atlanta, for Chapman.

Lewis R. Slaton, Dist. Atty., Michael J. Bowers, Atty. Gen., Susan V. Boleyn, Sr. Asst. Atty. Gen., Dept. of Law, Atlanta, for the State.

C.A. Benjamin Woolf, Asst. Atty. Gen., Atlanta.

Henry Newkirk, Asst. Dist. Atty., Atlanta.

Benjamin H. Oehlert, III, Asst. Dist. Atty., Atlanta.

BENHAM, Justice.

Appellant and two co-defendants were tried together and convicted of malice murder. ¹ After receiving immunity from prosecution, a man present at the time of the shooting testified that appellant was one of four men who sought out the victim, believing he had stolen their contraband, and shot him at the door of the apartment building in which they found him. Four women roommates testified that appellant and one of his co-defendants came to the women's apartment the night of the crime and informed the women that the co-defendant had shot the victim after appellant had instructed him to do so. Appellant testified that he was present when one of his co-defendants shot the victim, that he had accompanied his co-defendants in their search for the victim, that he knew the shooter had a gun, and that he fled the scene with his co-defendants after the shooting, but that he did not participate in the crime. The evidence was sufficient to authorize a rational trier of fact to find appellant guilty beyond a reasonable doubt of malice murder. Jackson v. Virginia, 443 U.S. 307, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979).

1. During the trial, appellant testified that one of his co-defendants shot the victim in appellant's presence. During cross-examination of appellant, counsel for the co-defendant was permitted, over objection, to inquire why appellant had not presented this version of the events earlier. Because this line of questioning was allowed, the assistant district attorney was allowed, during closing argument and over objection, to remind the jury that appellant had been incarcerated for seventeen months awaiting trial and had never given the version of events to which he testified at trial. Appellant contends it was error to permit the comments on his post-arrest silence, and that their admission was sufficient harm to warrant the grant of his motion to sever.

It is fundamentally unfair and a violation of due process of law for a State to permit cross-examination of a defendant as to post-arrest silence where the defendant has been informed of his rights under Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966), or to permit comment thereon, since the giving of the Miranda warnings might induce silence by implicitly assuring a defendant that his silence will not be used against him. Doyle v. Ohio, 426 U.S. 610, 96 S.Ct. 2240, 49 L.Ed.2d 91 (1976); Clark v. State, 237 Ga. 901, 230 S.E.2d 277 (1976). See also Bennett v. State, 254 Ga. 162(4), 326 S.E.2d 438 (1985). In the case at bar, the trial court allowed appellant's post-arrest silence to be used to impeach him, and permitted the State to comment upon the post-arrest silence during closing argument, but the record does not indicate whether appellant had received Miranda assurances prior to the silence used at trial. ² Even if we assume that appellant was given Miranda warnings upon his arrest, any error in the use of his post-Miranda silence was harmless beyond a reasonable doubt in light of his testimony, which was sufficient to authorize the jury to conclude that he participated in the crime. See OCGA § 16-2-20; Bennett v. State, supra.

2. Appellant contends the use of his silence by his co-defendant's attorney constituted sufficient harm to authorize the grant of his motion to sever his trial from that of his co-defendant who actually shot the victim.

The denial of appellant's motion to sever his trial from that of his co-defendant/shooter was not error. Absent an abuse of discretion, the denial of a motion to sever the trial of co-indictees in a capital case in which the death penalty is not sought is not reversible error. Harrell v. State, 253 Ga. 474(2), 321 S.E.2d 739 (1984). The existence of purported antagonistic defenses between two co-indictees is not sufficient to warrant the grant of a separate trial, absent a showing of harm. Cain v. State, 235 Ga. 128, 129, 218 S.E.2d 856 (1975). As stated in Division 1, the comment on appellant's post-Miranda silence in this case was not harmful in light of the strength of the evidence against appellant.

3. Acknowledging that the trial court charged the jury on the law of circumstantial evidence and impeachment, appellant, citing Robinson v. State, 261 Ga. 698, 410 S.E.2d 116 (1991), asserts error in the failure of the trial court to sua sponte instruct the jury that impeached testimony constitutes circumstantial evidence. In Robinson, at 699, 410 S.E.2d 116, this...