Hosch v. State

• Decision Date: 24 September 1980
• Docket Number: No. 36373,36373
• Citation: Hosch v. State, 271 S.E.2d 817, 246 Ga. 417 (Ga. 1980)
• Parties: HOSCH v. The STATE.
• Court: Georgia Supreme Court

Page 817

271 S.E.2d 817

246 Ga. 417

HOSCH v.The STATE.

No. 36373.

Supreme Court of Georgia.

Argued July 7, 1980.

Decided Sept. 24, 1980.

Nathaniel David Wages, Winder, Ellen Gettinger, Robert L. Whatley, Atlanta, for appellant.

Nat Hancock, Dist. Atty., Timothy G. Madison, Asst. Dist. Atty., Arthur K. Bolton, Atty. Gen., William B. Hill, Jr., Asst. Atty. Gen., for appellee.

PER CURIAM.

Raymond Hosch was convicted of the malice murder of Frank Billings and sentenced to life imprisonment.The evidence showed that on the morning of November 18, 1978, the victim, Frank Billings, solicited a ride from Glenwood to Winder, Georgia, with Sonny Berry and Ellis Harris in Harris's Cadillac.En route, Billings asked for a cigarette but Berry didn't smoke.They stopped at the Capital Homes apartment project in Winder and Berry and Harris went into Berry's girlfriend's apartment.Billings, who stayed in the car, asked Berry to bring him a cigarette but Berry replied that his girlfriend didn't smoke.When Berry exited the apartment about 10 minutes later he saw Billings standing by the defendant's car on the driver's side.The defendant was in the driver's seat and a rifle barrel was protruding out of the window.Berry heard a shot and saw Billings fall.Berry said "You shot that man" and the defendant said that he did not know the gun was loaded.

The defendant jumped out of his car and he and Berry proceeded to put Billings in the defendant's car.Billings' brother drove by at that point and the defendant told Berry not to stop him.As the defendant drove Billings to the emergency room of the hospital, he passed Billings' brother and motioned to him to follow, which the brother did.At the hospital emergency room the defendant said: "Come on and help me, I done shot your brother."When the defendant passed a police car just after leaving the hospital he stopped and told the policeman he had accidentally shot Billings.After going to the hospital, the policeman went to the defendant's home and took him into protective custody because a neighbor said "The Billings are on their way over here to get Raymond."Billings died from the wound to his abdomen.

The state called Kelly Fite, a firearms expert with the Georgia Crime Lab, who testified that he had examined the semi-automatic .223 caliber rifle identified as belonging to the defendant, that the fatal shot was fired from less than 12 inches and that he had checked the gun for accidental firing by dropping it from various heights and applying force on the sides and on the muzzle and found that none of these abuses caused the gun to fire; it would only fire with 5 pounds of force applied on the trigger.Fite also testified that when a magazine with live cartridges was placed in the gun, the gun was fired, and the magazine was then removed, one live cartridge would remain in the chamber.

The defendant testified that on the Saturday morning in question, he had gone to his sister's house after taking his daughter to get her hair done.At his sister's he saw a man with a gun and showed him his own new gun after removing it from the "boot" of his car.After they looked at the defendant's gun, the defendant put it in the back seat of his car and left.As he approached the Capital Homes apartments he saw Harris's Cadillac in the lot.Since Harris owed him money, he parked nearby, honked and called over to Billings, asking where Harris was.Billings replied that Harris would be out in a minute.Billings then got out of Harris's car, came over to the defendant's car, and asked for a cigarette.As the defendant reached for his cigarettes, he said "Frank, let me show you a gun," reached back, picked up the gun from the back seat and handed it through the window to Billings.As he handed it to him, the defendant had his finger on the trigger.As Billings took the gun by the barrel he jerked it and the gun, a semi-automatic rifle, fired.The defendant testified that the clip was not in the rifle and that he didn't know the gun was loaded although he knew that the absence of the clip didn't mean the gun was not loaded.

A deputy who testified that he interrogated the defendant related a similar statement.There was no evidence of any ill will between the victim and the defendant.The defendant appeals enumerating eight errors.

1.The trial court did not err in admitting the testimony of Kelly Fite to the effect that the gun would not fire accidentally.Fite was called as a witness for the state during its case in chief.The burden of proof is on the state.Fite's testimony was relevant as to the possible defense of accident.

2.The trial court erred in allowing a deputy to testify that after being read his rights and after answering one question, the defendant refused to answer a second question and then said his lawyer would be available the next day.The defendant has the right to remain silent and to be represented by counsel and the exercise of these rights is not to be used as evidence against him.Knowles v. State, 246 Ga. 378 (13), 271 S.E.2d 615(1980).

However, in view of our disposition of this case, we need not decide whether the admission of this evidence was so fundamentally unfair as to deprive the defendant of due process.SeeSmith v. State, 244 Ga. 814 (1), 262 S.E.2d 116(1979).

3.Defendant challenges the court's charge that: "I charge you that the law presumes that a person intends to accomplish the natural and probable consequences of his act, and if a person uses a deadly weapon or instrumentality in the manner in which such weapon or instrumentality is ordinarily used and thereby causes the death of a human being, the law presumes the intent to kill.These presumptions may be rebutted."Defendant argues that this charge falls within the proscription of Sandstrom v. Montana, 442 U.S. 510, 99 S.Ct. 2450, 61 L.Ed.2d 39(1979).

A charge somewhat similar to the first presumption quoted above was found unconstitutional in Sandstrom v. Montana.However, in Sandstrom the jury was not instructed that the presumption may be rebutted.Sandstrom held that the charge "The law presumes that a person intends the ordinary consequences of his voluntary acts" is unconstitutional for two reasons: The jury may have interpreted the presumption as conclusive; the jury may have interpreted the presumption as shifting the burden of persuasion to the defendant on the element of intent.The Court held that either interpretation would violate the 14th amendment requirement that the state prove every element of a crime beyond a reasonable doubt.

Because the trial court here expressly charged that these presumptions could be rebutted, they clearly are not conclusive (i.e., irrebuttable upon proof of the facts triggering the presumption).Lackey v. State, 246 Ga. 331, 271 S.E.2d 478(1980).Thus the question becomes whether the charge could have been interpreted by a reasonable jury as burden shifting, i.e., as directing a finding of intent absent proof by the defendant to the contrary by a quantum of proof greater than "some" evidence.Sandstrom v. Montana, supra, 442 U.S. at 517, 519, 99 S.Ct. at 2456, 2457;seeMullaney v. Wilbur, 421 U.S. 684, 702 n. 31, 95 S.Ct. 1881, 1891 n. 31, 44 L.Ed.2d 508(1975);Ulster County Court v. Allen, 442 U.S. 140, 157 n. 16, 99 S.Ct. 2213, 2225 n. 16, 60 L.Ed.2d 777(1979).In view of the trial court's charges on the presumption of innocence, the burden of proof, reasonable doubt, and intent as a jury question, we find that the jury could not have interpreted the charge as shifting the burden of persuasion to the defendant.Lackey v. State, supra;Mason v. Balkcom, 487 F.Supp. 554, 559(M.D. Ga.1980).

Although we find that this challenged charge is not error in this case, we do not approve its continued use.¹Absent explanatory language the charge should not be cast in terms of "The law presumes", a phrase which standing alone, as the United States Supreme Court has pointed out in Sandstrom, supra, is subject to misinterpretation by the jury.²

4.Defendant also challenges the trial court's charge that: "(W)here the State's evidence shows the commission of a homicide by the accused by the use of a deadly weapon, the law presumes murder."The jury was not clearly instructed that this presumption could be rebutted.The absence of such cautionary language clearly applicable as to...