Davis v. State

• Citation: 290 S.E.2d 273,249 Ga. 309
• Decision Date: 06 April 1982
• Docket Number: No. 38313,38313
• Parties: DAVIS v. The STATE.
• Court: Supreme Court of Georgia

Page 273

290 S.E.2d 273

249 Ga. 309

DAVIS v. The STATE.

No. 38313.

Supreme Court of Georgia.

April 6, 1982.

Rehearing Denied April 28, 1982.

E. Crawford McDonald, McDonald, McDonald & McDonald, Mitchell, Mitchell, Coppedge, Boyett, Wester & Bates, Neil Wester, Dalton, for Margaret Ernestine Davis.

Stephen A. Williams, Dist. Atty., Michael J. Bowers, Atty. Gen., Mary Beth Westmoreland, Asst. Atty. Gen., Dalton, for the State.

GREGORY, Justice.

Following a jury trial, defendant Margaret Ernestine Davis was found guilty of the murder of Ray Silas Frady and was sentenced to life imprisonment. Defendant appeals from the denial of her motion for a new trial and from other alleged errors of law.

Davis was the 38 year-old owner/operator of the Davis Insulation Company in Dalton, Georgia, which she operated out of her home. She was legally separated from her husband as a result of domestic strife. Following her separation, she purchased a .38 revolver for protection, which she testified she carried loaded everywhere she went. She also testified that on one occasion, after she had an argument with her estranged husband, she used the gun to shoot the tires off his car. She further testified that she had pulled the gun on the deceased, Frady, in an earlier argument with him, and that Frady had to take the gun away from her.

The deceased was 35 years old, divorced, and on probation at the time of these incidents. There was some testimony that he had a violent reputation in the community. Frady and the defendant began dating in September, 1980. Testimony revealed that their personal relationship was a turbulent one. In January, 1981, the defendant hired Frady as an employee of the Davis Insulation Company.

On Sunday, February 1, 1981, the defendant had a party at her home which was attended by Frady and several others. Frady left the party at 9 o'clock that evening, ostensibly to go to the grocery store, taking one of the defendant's vans and the keys to the equipment to defendant's business. Frady had in fact left to spend the night with another woman. Later that night and early the next morning, the defendant unsuccessfully attempted to locate Frady to retrieve the keys to her business so that work could begin as usual at 8 o'clock Monday morning. When Frady did not arrive by 8 o'clock that morning, the defendant and her supervisor agreed to fire Frady when he did arrive. Frady arrived at about 10 o'clock that morning.

The defendant asked Frady to come inside so that she would not have to fire him in front of the other employees. When she fired Frady, he became very angry and hit her several times. Frady left the room to collect his personal belongings and laundry from defendant's house and take them to his car. While Frady was in the yard, arguing with his former supervisor, the defendant got her loaded .38 revolver. Frady's sister, who was in the house with defendant at the time, would not let the defendant go out the front door with the loaded gun. The defendant then went outside through her carport door and came back around the house to where Frady and the supervisor were arguing. The defendant then intentionally shot Frady in the chest from a distance of about fifteen feet, fatally wounding him.

At trial, during redirect examination of a witness, the assistant district attorney approached the bench and brought up two points made by the witness which conflicted with statements that witness previously gave the police. The prosecutor subsequently stated in his place that he was surprised and entrapped by that testimony. Defense counsel objected to allowing the prosecutor to impeach his own witness, which objection was overruled. Defense counsel elicited from that witness on recross-examination that the witness had discussed this change of story with the assistant district attorney the day before this testimony. At this point, defense counsel moved for a mistrial because the prosecutor was allowed to impeach his own witness even though he could not have been surprised by the testimony, which motion was denied.

The evidence in this case is such that a rational trier of fact could reasonably have found proof beyond a reasonable doubt of Davis' guilt of all the elements of the crime of murder. Jackson v. Virginia, 443 U.S. 307, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979).

1. Appellant urges in her first two enumerations of error that the trial court erred in admitting evidence of alleged prior similar transactions or crimes of appellant because it did not meet admission standards for such evidence and because it improperly placed her character into evidence. The evidence at issue was appellant's testimony on cross-examination about the two prior instances of using her .38 revolver, once on her former husband and once on the deceased Ray Frady.

If evidence is relevant and material to an issue in this case, it is not inadmissible because it incidentally puts the defendant's character in issue. Whippler v. State, 218 Ga. 198(3), 126 S.E.2d 744 (1962), cert. denied, 375 U.S. 960, 84 S.Ct. 446, 11 L.Ed.2d 318 (1963); Tiller v. State, 196 Ga. 508(3), 26 S.E.2d 883 (1943). This rule is true with respect to similar independent transactions or crimes of the defendant. While unconnected crimes not tending to prove any element in the case are generally inadmissible and prejudicial as tending to place the defendant's character into evidence, proof of such crimes or transactions is admissible for purposes of proving issues such as malice, intent and motive. Strickland v. State, 137 Ga.App. 419(2), 224 S.E.2d 87 (1976); State v. Luke, 232 Ga. 815, 209 S.E.2d 165 (1974); King v. State, 230 Ga. 581, 198 S.E.2d 305 (1973). In this case, proof of these prior incidents was directly relevant and material to the issue of defendant's intent and motive in the shooting, particularly in light of defendant's assertion of self-defense. At trial, the State took the position that appellant killed Frady because she was angry at him for seeing another woman the night before. Her conduct in her earlier relationship with Frady and her conduct in her prior relationship with her husband involving the use of her .38 revolver in anger were relevant to show motive and intent in this case. See, Tiller v. State, 196 Ga. 508, 26 S.E.2d 883 (1943); Brookins v. State, 167 Ga. 325, 145 S.E. 449 (1928); Jeffords v. State, 162 Ga. 573, 134 S.E. 169 (1926).

The requirements for admissibility of evidence of independent similar transactions or crimes is set out in Hamilton v. State, 239 Ga. 72, 235 S.E.2d 515 (1977). "Before evidence of independent crimes is admissible, two conditions must be satisfied. First, there must be evidence that the defendant was in fact the perpetrator of the independent crime. Second, there must be sufficient similarity or connection between the independent crime and the offense charged, that proof of the former tends to prove the latter ... Once the identity of the accused as the perpetrator of the offense separate and distinct from the one for which he is on trial has been proven, testimony concerning the independent crime may be admitted for the purpose of showing identity, motive, plan, scheme, bent of mind, and course of conduct." Hamilton, supra, at 75, 235 S.E.2d 515.

The first condition is met in this case by appellant's own testimony that she engaged in the prior incidents involving use of her .38 revolver. The second condition requires that there be a "sufficient similarity" between the incidents so that proof of the prior transactions or crimes tends to prove an element of the crime for which defendant is on trial. Hamilton, supra, at 75, 235 S.E.2d 515. The three incidents involved here are sufficiently similar to meet this second condition of admissibility. In all three instances it appears that appellant either used or attempted to use her .38 revolver on the man with whom she had a close relationship because she was angry at that man. It was not necessary that the State prove every element of the commission of the prior independent crimes as a condition of admissibility. Tuzman v. State, 145 Ga.App. 761(1), 244 S.E.2d 882 (1978). Where, as here, the conditions of identity and sufficient similarity are met, the evidence is admissible.

2. Appellant next argues that the trial court's charge to the jury on the question of intent impermissibly shifted the burden of proof on that issue to the defendant, in violation of Sandstrom v. Montana, 442 U.S. 510, 99 S.Ct. 2450, 61 L.Ed.2d 39 (1979).

In Sandstrom, supra, the United States Supreme Court held that if one of the ultimate facts to be proven in a case was intent, an element of the crime charged, then proof of intent may not rest wholly or in part on a mandatory presumption. In Williamson v. State, 248 Ga. 47, 281 S.E.2d 512 (1981), this court reviewed the case law in that area and set forth guidelines for determining when a presumption is mandatory or unacceptably burden-shifting under Sandstrom, and when a presumption is permissive so as to comport with due process. A mandatory presumption is one which tells the trier of fact that "he or they must find the ultimate fact upon proof of the basic fact." Williamson, supra, at 54, 281 S.E.2d 512 citing Ulster, County, New York v. Allen, 442 U.S. 140, 157, 99 S.Ct. 2213, 2224, 2225, 60 L.Ed.2d 777 (1979). A permissive presumption or inference, on the other hand, is one which "allows--but does not require--the trier of fact to infer the [ultimate] fact from proof by the prosecutor of the basic [fact]." Williamson, supra, 248 Ga. at 54, 281 S.E.2d 512, citing Ulster County, New York, supra, 442 U.S. at 157, 99 S.Ct. at 2224, 2225. The purpose of a permissive presumption or inference is to advise or guide "the jury as to what conclusions they may draw from the circumstantial evidence presented at trial."...