Dubose v. State, 76280

• Decision Date: 31 May 1988
• Docket Number: No. 76280,76280
• Citation: 187 Ga.App. 293,369 S.E.2d 924
• Parties: DUBOSE v. The STATE.
• Court: Georgia Court of Appeals

Page 924

369 S.E.2d 924

187 Ga.App. 293

DUBOSE v. The STATE.

No. 76280.

Court of Appeals of Georgia.

May 31, 1988.

John A. Pickens, Atlanta, for appellant.

Lewis R. Slaton, Dist. Atty., Joseph J. Drolet, Nancy A. Grace, Asst. Dist. Attys., for appellee.

POPE, Judge.

Defendant was indicted for murder for the shooting death of Alfred "Crum Daddy" Crumley. He was convicted of the lesser included offense of voluntary manslaughter. At trial defendant attempted to present evidence to show the shooting was justifiable in self-defense.

1. The trial court gave lengthy instructions on the defense of self-defense, including the instruction that the burden of proof is not on the defendant to prove self-defense. However, the court refused to give the requested instruction that once self-defense is introduced the prosecution has the burden of proving beyond a reasonable doubt the absence of self-defense by the defendant. The charge as given did address the allocation of burden of proof to the extent it made clear the defendant had no burden of proof on the issue and therefore the instruction was not incorrect. Walden v. State, 251 Ga. 505(3), 307 S.E.2d 474 (1983). If the defendant had not specifically requested the instruction regarding the state's burden to disprove self-defense, the charge as given would have been sufficient. Boyd v. State, 253 Ga. 515(7), 322 S.E.2d 256 (1984). However, "the trial court erred in failing to give [the] requested charge that where evidence of self-defense is presented the State has the burden of proving beyond a reasonable doubt that the defendant did not act in self-defense." State v. Shepperd, 253 Ga. 321, 320 S.E.2d 154 (1984).

2. At the trial of the case defendant was not permitted to present testimony concerning the bad character and reputation of the victim, the victim's propensity for violence and carrying a weapon, nor to present evidence of specific prior incidents in which the victim had beaten defendant, cut him with a knife and threatened him with a gun. The judge ruled such evidence was inadmissible because he had not set forth a prima facie case that the defendant acted, at the time of the shooting, in self-defense. Defendant argues the court erred in excluding the testimony he sought to present.

The defendant may present evidence of the victim's general reputation or character for violence " 'only when there has been a prima facie showing (by the defendant) that three elements are present: that the deceased was the assailant; that the deceased assailed defendant; and that defendant was honestly seeking to defend himself.' Curtis v. State, 241 Ga. 125, 126(1) ( 243 SE2d 859) (1978)." Milton v. State, 245 Ga. 20, 22, 262 S.E.2d 789 (1980). The critical issue in the case now before us is whether the excluded testimony concerning prior specific assaults by the victim upon defendant were admissible for the purpose of establishing a prima facie case of present assault. See Milton v. State, id.

The only evidence concerning the shooting was the testimony of a witness who, on the night of the shooting, saw defendant "laying" up against a truck parked beside an apartment building near the victim's house. The witness saw the victim step out the side door of his house and walk across a field toward defendant. As the victim approached defendant he fumbled in his back pants pocket with his right hand as if he were drawing a weapon. The witness then heard defendant say, "Man, why don't you leave me alone." The witness heard shots fired and then saw both men running in opposite directions. The trial court would not permit defendant to present testimony by deposition of another witness who, two to three weeks before the shooting, witnessed a fight in which the victim had defendant backed up against a parked truck and was swinging at him with a knife. Although it would have been inadmissible as hearsay, the deposition witness also testified he had heard of other incidents in the two weeks prior to the shooting in which the victim allegedly beat or threatened defendant. Defendant's attorney stated on the record that he was prepared to call eyewitnesses to these other fights but the court ruled such testimony inadmissible for failure to make a prima facie case of assault by the victim. However, in this case the excluded facts would, themselves, have established the prima facie case and should have been admitted for that purpose.

At the time he ruled to exclude the testimony in question, the trial judge indicated he might allow the evidence if he heard evidence from the defendant establishing a prima facie case. However, defendant exercised his right to remain silent and did not testify at trial. Is the defendant required to testify in order to make a prima facie case? We think not. "[F]acts from which apprehension might reasonably be inferred ... are relevant when stated or shown by third parties." (Punctuation and cit. omitted.) Baker v. State, 142 Ga. 619, 622, 83 S.E. 531 (1914). Each element of the prima facie case may be established by the testimony of other witnesses or by circumstantial evidence.

The mere fact that the victim reached toward his pocket would not establish the victim was the assailant. In Cooper v. State, 249 Ga. 58, 287 S.E.2d 212 (1982), where the only evidence concerning the shooting showed the victim verbally threatened to kill the defendant before touching the outside of his pants pocket, the Supreme Court ruled, "We cannot say this evidence, standing alone, is sufficient to establish prima facie that the victim was the aggressor or that the defendant was honestly seeking to defend himself." (Emphasis supplied.) Id. at 61, 287 S.E.2d 212. Thus, in the case now before us, the mere fact that the victim reached toward his pocket would not establish the prima facie case necessary before character evidence could be admitted. However, the victim's gesture toward his pants pocket did not "stand alone" as the only evidence in this case. In this case, defendant proffered evidence of an almost identical earlier incident in which the victim assaulted the defendant with a knife. Defendant claims to have been prepared to offer evidence of other similar incidents. Evidence of specific similar assaults by the victim against the defendant can, itself, establish the threshold elements of a prima facie case by illustrating the basis for defendant's contention he reasonably believed the victim was about to use a weapon on him and that it was necessary for him to harm the victim before the victim harmed him. Milton v. State, supra. In Milton, the only evidence that the victim assailed the defendant was defendant's proffered testimony that the victim threatened to kill him, told him she had a gun in her purse and started reaching for her purse before defendant shot her. If this had been the only evidence, as in Cooper v. State, supra, a prima facie case of present assault would not have been shown. However, in Milton the reasonableness of defendant's belief it was necessary to act in self-defense was further supported by testimony the victim had shot him and cut him with a knife on earlier occasions. The same sort of evidence was sought to be presented by defendant in the case now before us.

Even after a prima facie showing of self-defense, evidence of other specific acts of violence by the victim would not be admissible for the purpose of corroborating the testimony that the victim was violent on the occasion in question. Only general reputation for violence or a specific type of violence (such as stabbing or shooting) can...