Cheriogotis v. State

• Decision Date: 29 September 1989
• Docket Number: 4 Div. 146
• Citation: 555 So.2d 1147
• Parties: Nicholas CHERIOGOTIS v. STATE.
• Court: Alabama Court of Criminal Appeals

Page 1147

555 So.2d 1147

Nicholas CHERIOGOTIS v. STATE.

4 Div. 146.

Court of Criminal Appeals of Alabama.

Sept. 29, 1989.

Rehearing Denied Nov. 17, 1989.

Certiorari Denied Jan. 26, 1990

Alabama Supreme Court 89-285.

William B. Matthews, Jr. of Matthews & Matthews, Ozark, and L. Drew Redden of Redden, Mills & Clark, Birmingham, for appellant.

Don Siegelman, Atty. Gen., and Charles W. Hart III, Asst. Atty. Gen., for appellee.

TAYLOR, Presiding Judge.

The appellant, Nicholas Cheriogotis, was charged with the murder of Lamar Smith, a violation of § 13A-6-2, Code of Alabama 1975. He was convicted of the lesser included offense of manslaughter and was sentenced to 15 years' imprisonment.

The evidence tended to show that on November 17, 1987, Lamar Smith was shot and killed in Grimes, Alabama. Evidence revealed that on the afternoon of November 17, 1987, an Emery delivery service truck, driven by the deceased, Lamar Smith, was seen "going in and out of traffic," and a small brown pick-up truck driven by the appellant Nicholas Cheriogotis, was behind it. Appellant's small child was with him in the pick-up truck. Dwight McMillan, a state's witness, testified that he saw the driver of the Emery truck looking in his rear-view mirror, pointing and laughing. Lamar Smith had, in the past, been employed by the appellant.

Norma Skipper testified that later that same afternoon she heard a "commotion" outside of her home and went to see what had happened. She saw an Emery truck in her driveway and a brown pick-up truck behind the Emery truck. Ms. Skipper also saw a body in the grass about 90-100 feet from the Emery truck. Ms. Skipper observed a man, whom she identified as the appellant, behind the wheel of the brown pick-up truck. As she approached the pick-up truck, her son also joined her, and the appellant got out of his vehicle. Ms. Skipper asked the appellant what had happened. She testified that appellant stated: "I had to shoot him. I had to shoot him. The man's crazy. He tried to cut me with a knife." The appellant also told them that he had called the police. The appellant showed them a cut on his arm. Mike Skipper, Ms. Skipper's son, testified as to the same chain of events; however, Mike heard the gunshots.

A statement made by the appellant, which was received into evidence, stated that the deceased had been following him around town harassing him and "shooting him birds." The appellant said that he got tired of this, pulled over, and approached the deceased and that when he approached Smith, Smith tried to cut his throat. At that time, the appellant stated, he went back to his truck and got his gun. He turned on Smith and started firing. He said that he initially fled the scene but returned after calling the police. On appeal, appellant raises three issues.

I

Initially, appellant contends that the trial court erred in giving state's requested charge number 1. This charge read:

"I instruct you that the law presumes that every adult person intends to do that which he does and that the natural and necessary, and probable consequences of a person's acts are intended. When one kills another by the intentional use of a deadly weapon, the law gives rise to a presumption of malice, design, and motive, unless other evidence rebuts the presumption." (Emphasis supplied.)

Appellant argues that the first part of this instruction shifted the burden of proof from the prosecution to the appellant and thereby violated his right to due process of law under the United States Constitution. This is an issue on which the United States Supreme Court has very clearly spelled out its interpretation of the law.

The United States Supreme Court in Sandstrom v. Montana, 442 U.S. 510, 99 S.Ct. 2450, 61 L.Ed.2d 39 (1979), addressed this issue. In that case the charge read as follows: "[T]he law presumes that a person intends the ordinary consequences of his voluntary acts." The Supreme Court began its analysis by determining "the nature of the presumption." Would a reasonable juror view the instruction as disallowing all alternatives? In Sandstrom, the jury was not told that the presumption could be rebutted. Thus, the Court held that "a reasonable jury could well have interpreted the presumption as 'conclusive,' that is, not technically as a presumption at all, but rather as an irrebuttable direction by the court to find intent once convinced of the facts triggering the presumption." Sandstrom, 442 U.S. at 517, 99 S.Ct. at 2456.

The Court in Sandstrom did not reach the issue of harmless error. However, in 1983, the United States Supreme Court addressed the harmless error question in Connecticut v. Johnson, 460 U.S. 73, 103 S.Ct. 969, 74 L.Ed.2d 823 (1983). Could a charge that required a conclusive presumption ever be harmless? The questioned jury instruction in Johnson stated that intent is "a question of fact that is solely within your province as jurors," and further:

"However, you should be aware of a rule of law that will be helpful to you and that is that a person's intention may be inferred from his conduct and every person is conclusively presumed to intend the natural and necessary consequences of his act." Johnson, 460 U.S. at 78, 103 S.Ct. at 973.

The instances are rare where the appellate court can say that such an instruction did not affect the jury's verdict. Such an instance might be where the appellant concedes the element of intent or where the instruction was given and the appellant was acquitted. Additional instances might be cases in which the issues of insanity, self-defense, and alibi have been raised and the appellant admits that the act was intentional. Perhaps the jury's verdict might be unaffected by a Sandstrom charge. See, Johnson, supra. The court in Johnson held that the conclusive presumption "deprived respondent of 'constitutional rights so basic to a fair trial that their infraction can never be treated as harmless error.' " Johnson, 460 U.S. at 88, 103 S.Ct. at 978.

In Francis v. Franklin, 471 U.S. 307, 105 S.Ct. 1965, 85 L.Ed.2d 344 (1985), the United States Supreme Court again considered a similar instruction. However, in Francis, the jury was informed that the presumption could be rebutted. The court considered the jury instructions as a whole. Immediately prior to the Sandstrom instruction, the trial court stated: "A person will not be presumed to act with criminal intention...." Francis, 471 U.S. at 319, 105 S.Ct. at 1974. Reaffirming the Court of Appeals, the Supreme Court stated that the Sandstrom error at trial could not be deemed "harmless." Francis, 471 U.S. at 325, 105 S.Ct. at 1977.

Recently, in the case of Rose v. Clark, 478 U.S. 570, 106 S.Ct. 3101, 92 L.Ed.2d 460 (1986), the Supreme Court once again addressed a variation of the Sandstrom issue and the question of whether to apply the harmless error standard. The trial court charged the jury:

"All homicides are presumed to be malicious in the absence of evidence which would rebut the implied presumption. Thus, if the State has proven beyond a reasonable ... doubt that a killing has occurred, then it is presumed that the killing was done maliciously. But this presumption may be rebutted by either direct or circumstantial evidence, or by both, regardless of whether the same be offered by the defendant, or exists in the evidence of the State."

478 U.S. at 574, 106 S.Ct. at 3104.

"Rose requires an examination of the record as a whole to determine whether the evidence of intent is so dispositive that the 'reviewing court can say beyond a reasonable doubt that the jury would have found it necessary to rely on the presumption.' " Freeman v. State, 555 So.2d 196 (Ala.Cr.App.1988).

This court ruled recently in Freeman that a like charge was harmless where there was overwhelming evidence of the appellant's guilt and of his intent. In Hall v. State, 49 Ala.App. 381, 272 So.2d 590 (Ala.Cr.App.1973), Hall was charged with the malicious murder of his cellmate; however, the jury convicted him of manslaughter. The instruction to the jury was that "the law says that a person is presumed to intend to do that which he does." Hall at 383, 272 So.2d 590. This court stated:

"The jury may mistakenly believe that it is permissible to infer specific knowledge or intent solely from the doing of a particular act, without regard to the totality of circumstances; or that the occurrence of the particular acts shifts the burden of proof of knowledge or intent from the prosecution to the defense; or that the question is whether a reasonable man in similar circumstances would have had the requisite knowledge or intent, rather than whether the accused actually had it." Hall at 385, 272 So.2d 590.

This court reversed appellant's conviction, holding that the trial court committed error by giving the above charge to the jury.

Applying the United States Supreme Court's reasoning, as we must, the jury in the instant case was given a charge that created a "conclusive presumption." The jury was never instructed that the presumption was rebuttable. Furthermore, the appellant never conceded or admitted any intent to kill the deceased. No other statements in the jury charge countered the effect of that instruction. Thus, the trial court erred to reversal in using a Sandstrom charge in its jury instruction.

Although we are not required to address the remaining issues, in the interest of judicial economy we choose to do so.

II

Appellant Cheriogotis contends that the trial court erred in receiving into evidence a written statement made by Lieutenant Jones, setting out what Cheriogotis had said to him. Specifically, appellant argues that the statement was not shown to him or ratified by him and that no predicate with reference to recollection or lack thereof was laid.

The record reflects that the appellant made a statement to Lieutenant Jones and Captain McLeod after he was first brought to the police station. The interview was taped, and the tape was...