Chester v. State, No. S96A0236

• Court: Georgia Supreme Court
• Writing for the Court: CARLEY; All the Justices concur, except BENHAM; BENHAM; SEARS
• Citation: 471 S.E.2d 836,267 Ga. 9
• Docket Number: No. S96A0236
• Decision Date: 06 May 1996
• Parties: CHESTER v. The STATE.

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471 S.E.2d 836 267 Ga. 9 CHESTER
v.
The STATE. No. S96A0236. Supreme Court of Georgia. May 6, 1996.
Reconsideration Denied July 12, 1996.

Glynn County Superior Court; Hon. James R. Tuten, Jr., Judge. No 9300497.

J. Jeffrey Lacy, Timothy L. Barton, Brunswick, for Anthony Bernard Chester.

Glenn Thomas, Jr., Dist. Atty., Woodbine, Michael J. Bowers, Atty. Gen., Dept. of Law, Atlanta, Stephen D. Kelley, Asst. Dist. Atty., Brunswick, for State.

Caroline Wight Donaldson, Asst. Atty. Gen, Dept. of Law, Atlanta.

CARLEY, Justice.

In an unprovoked attack, Anthony Chester fatally shot his girlfriend. He fled the scene, but surrendered to police within an hour of the homicide and gave a statement wherein he admitted firing the fatal shots. He was tried before a jury and found guilty of malice murder, possession of a firearm during the commission of a crime and possession of a firearm by a convicted felon. For the murder, he was sentenced to life and, for the two possession of a firearm offenses, he was given consecutive 5-year sentences. He appeals from the judgments of conviction and sentences entered by the trial court on the jury's guilty verdicts. ¹

1. The evidence is sufficient to authorize a rational trier of fact to find proof of Chester's guilt of the murder and the two possession of a firearm offenses beyond a reasonable doubt. Jackson v. Virginia, 443 U.S. 307, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979).

2. Although Chester introduced expert opinion testimony that he suffered from the battered person syndrome, the following requested

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charges were not given by the trial court:

Expert testimony regarding the battered person syndrome authorizes a jury to find that, notwithstanding any lapse in time since the mate's last assault, Mr. Chester honestly was trying to defend himself although his mate was not at the moment physically attacking him. ... You may consider the testimony of an expert witness on the battered person syndrome to help explain why a person suffering the battered man syndrome would not leave his mate, would not inform the police or friends, and would fear increased aggression against himself. (Emphasis supplied.)

Urging that the syndrome was his sole defense, Chester enumerates as error the refusal to give these requested charges.

In this state, the battered person syndrome is not a separate defense and expert testimony as to that syndrome is admissible only to assist the jury in evaluating a defendant's claim of self-defense. Pugh v. State, 260 Ga. 874, 876(3), 401 S.E.2d 270 (1991); Chapman v. State, 259 Ga. 706, 707(4), 386 S.E.2d 129 (1989); Smith v. State, 247 Ga. 612, 619, 277 S.E.2d 678 (1981). When a defendant relies upon the battered person syndrome to justify his use of physical force against the victim, he must show that he previously was subjected to physical force employed against him by the victim. Pugh v. State, supra at 874, 401 S.E.2d 270 (defendant "had been severely abused throughout the seven years of her marriage to the victim"); Chapman v. State, supra at 706, 386 S.E.2d 129 ("[d]uring the courtship and their marriage, the deceased would frequently beat" the defendant); Chapman v. State, 258 Ga. 214, 215(2), 367 S.E.2d 541 (1988) ("the defendant testified that she shot the victim in self-defense after numerous beatings"); Smith v. State, supra at 613, 277 S.E.2d 678 (victim "had beaten [the defendant] periodically"). Although the evidence shows that the victim previously made verbal threats to Chester, there is no evidence that she ever had attacked him physically. It follows that, although an expert witness

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opined that Chester suffered from the battered person syndrome, there was no evidence that he was in fact a battered person who could claim self-defense as against the victim. Therefore, the battered person syndrome was not relevant to Chester's claim of self-defense and his refused requests to charge were not adjusted to the evidence. There was no "last assault" by the victim since she never had committed any prior act of "physically attacking" Chester and he could not reasonably have feared "increased aggression" since he had not been the victim of any past aggression. It is never error to refuse to charge on an issue which is not adjusted to the evidence. Bland v. State, 210 Ga. 100, 107(8), 78 S.E.2d 51 (1953).

Moreover, even assuming that the battered person syndrome had been relevant to Chester's claim of self-defense, a trial court's charge "should contain no such summary of the evidence as might to a jury either seem to be an argument or amount to the expression or intimation of an opinion thereon." Thomas v. State, 95 Ga. 484, 485(3), 22 S.E. 315 (1895). Accordingly, a trial court is not required, "even after request, to specifically point out particular evidence in behalf of the defendants which the jury should specially consider." Balark v. State, 81 Ga.App. 649, 654(1)(c), 59 S.E.2d 524 (1950). Chester's requests "are more adjusted to the exhortation of counsel than to the impartial clarity which should characterize the instructions of the court," and this argumentativeness "is sufficient reason for their refusal." Balark v. State, supra at 654(1)(c), 59 S.E.2d 524. It follows that it was not error to refuse to give the requested charges. See Pugh v. State, supra at 876(3), 401 S.E.2d 270.

3. Over objection, the State's expert witness was allowed to remain in the courtroom during the testimony of Chester's expert witness and Chester urges that it was error to allow this witness to testify after he violated the rule of sequestration. However, even assuming, without deciding, that the rule was violated by the witness, it was not reversible error to allow him to testify, since a violation of the rule of sequestration goes only to the credibility, rather than the admissibility, of the violating witness' testimony. Johnson v. State, 258 Ga. 856, 857(4), 376 S.E.2d 356 (1989). Compare Childress v. State, 266 Ga. 425, 467 S.E.2d 865 (1996) (rule of sequestration violated by actions of witness outside of the courtroom).

4. Chester urges that it was error to allow the State's expert to give testimony regarding the battered person syndrome, since he was not shown to be an expert as to that specific syndrome. However, the record shows that, by virtue of his training and expertise, the State's witness was eminently qualified as an expert in the general field of forensic psychology. That, as the result of his general expertise, the State's witness had little regard for the viability of the battered person syndrome in specific would not disqualify him from testifying as to his opinion concerning whether Chester suffered therefrom. See Taylor v. State, 261 Ga. 287, 289(1)(a), 404 S.E.2d 255 (1991).

Judgments affirmed.

All the Justices concur, except BENHAM, C.J., FLETCHER, P.J., and SEARS and HUNSTEIN, JJ., who concur specially.

BENHAM, Chief Justice, concurring specially.

While I agree with the holdings of Divisions 1, 3, and 4 of the majority opinion, I write separately because I disagree with the majority's conclusion in Division 2 that a defendant relying on battered person syndrome as a defense must show the he/she was previously subjected to physical force at the hands of the victim of the defendant's aggression. Because I believe that the enumeration of error addressed in Division 2, the failure of the trial court to give jury instructions requested by the defendant, can be affirmed without sailing the uncharted waters on to which the majority has ventured, I join the majority's judgment of affirmance.

Citing the legal determination that battered person syndrome is not a discrete defense but serves only as evidence supporting the defendant's claim that he/she was justified in using force against the victim, this court has repeatedly rejected defendants' assertions

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that the trial court erred by failing to give requested jury charges on the battered person syndrome. See Smith v. State, 265 Ga. 495(2), 458 S.E.2d 347 (1995); Pugh v. State, 260 Ga. 874, 401 S.E.2d 270 (1991); Chapman v. State, 259 Ga. 706(4), 386 S.E.2d 129 (1989); Chapman v. State, 258 Ga. 214, 216, 367 S.E.2d 541 (1988). See also Motes v. State, 192 Ga.App. 302, 305, 384 S.E.2d 463 (1989) (written by Chief Judge, now Justice, Carley). In Pugh, supra, the defendant requested a charge which, like the charge requested by appellant, consisted of quoted language from this court's opinion in Chapman, supra, 258 Ga. at 216, 367 S.E.2d 541. This court affirmed the...