House v. State, 40626
| Decision Date | 04 April 1984 |
| Docket Number | No. 40626,40626 |
| Parties | HOUSE v. The STATE. |
| Court | Georgia Supreme Court |
Jimmy D. Berry, Marietta, for Weyman Harold House.
Thomas J. Charron, Dist. Atty., James F. Morris, Debra Halpers Burnes, Asst. Dist. Attys., Marietta, Michael J. Bowers, Atty. Gen., Eddie Snelling, Jr., for the State.
Weyman Harold House, Jr. was convicted of murdering Michael Bradley Turnipseed and sentenced to life imprisonment.
In late summer, 1982, the defendant, the victim and Janet Hembree shared an apartment in Cobb County. Just before Christmas, 1982, the victim moved out. The evidence is undisputed, however, that he remained friends with both Hembree and the defendant, visiting them frequently.
On the morning of the victim's death the defendant bought a bottle of whiskey for the three to share. By noontime the three had consumed the entire bottle and the defendant retired to his bedroom to sleep. Hembree testified that at midnight the victim came to the back door of the apartment and asked if he could spend the night there as he had no other place to go. Hembree consented. Hembree testified that while she was sorting some clothes the victim went into the defendant's bedroom three times. After his last trip the victim sat down on the bed in Hembree's bedroom and told her the defendant had "cocked the gun on [him] three times." Minutes later, Hembree testified, she saw the defendant standing in the doorway of her bedroom. No words were exchanged before the defendant raised a handgun and shot the victim several times as he remained seated on Hembree's bed.
The defendant testified that after he and his companions finished the bottle of liquor, he slept for ten or twelve hours. He was awakened, around midnight, by the victim coming into his room. The defendant testified the victim woke him, stating, The defendant testified that he had not cocked his gun. He responded that when the victim was around, "there always seems to be some kind of trouble and I don't like you over here." The defendant then told the victim to leave the apartment. The victim exited the defendant's room.
Shortly thereafter the defendant walked from his bed to the bathroom, putting his gun in his pants pocket. He testified he saw the victim on Hembree's bed and that the victim "jumped up and reached in his pocket and started toward me." The defendant testified he removed the gun from his pocket, aimed it at the victim, and fired five times "at his eyes." The defendant maintained at trial he shot the victim in self-defense.
Medical testimony indicated the victim sustained shots in his head, shoulder and side. The medical examiner testified that the location and angle of the wounds were consistent with other testimony that the victim had been shot from an elevated position.
1. The defendant argues the trial court erred in failing to charge the defense of habitation. The record shows the defendant initially requested this charge, then withdrew his request, stating to the court that he was "not contending the defense of habitation." We find no error.
2. Over a hearsay objection Janet Hembree was permitted to testify that as soon as the victim came out of the defendant's bedroom the third time before the shooting, he stated that the defendant had "cocked the gun three times on [him]." The defendant maintains it was error for the trial court to admit this statement as it was clearly inadmissible hearsay and highly prejudicial to his case.
We hold this statement was admissible under the "spontaneous declaration exception to the hearsay rule. To satisfy the criteria of this exception, a statement must be made by the out-of-court declarant in response to a startling event. Furthermore, the statement must be a spontaneous reaction to the event rather than the result of "reflective thought." McCormick, Evidence 2d, § 297, p. 704 (1972); 6 Wigmore, Evidence §§ 1747-1749 (Chadbourn Rev.1976). It is thought that a statement spontaneously made under the influence of startling circumstances has a "special trustworthiness" which justifies exempting it from the rule against hearsay. 6 Wigmore § 1749.
It cannot be questioned that the victim's statement, "[The defendant] cocked the gun on me three times," was made in response to a startling event. Additionally, Janet Hembree testified the victim exited the defendant's room the third time, walked into her room and made the challenged statement. We find this evidence satisfies the requirement that the statement be spontaneously made without reflective thought. The trial court did not err in admitting Hembree's testimony.
3. (a) The defendant complains the trial court's charge on intent violates Sandstrom v. Montana, 442 U.S. 510, 99 S.Ct. 2450, 61 L.Ed.2d 39 (1979), in creating a mandatory presumption and in shifting the burden of persuasion to the defendant.
The trial court initially instructed the jury that intent, an essential element of the crime, must be proved beyond a reasonable doubt by the State. The trial court also charged "a person will not be presumed to act with criminal intent, but ... the jury may find such intention or the absence thereof upon a consideration of words, conduct, demeanor, motive and other circumstances connected with the act for which the accused is being prosecuted." Defendant's complaint lies with the trial court's charge, "Now, if you find that a homicide is proved to have been committed in this case by the defendant and with a weapon that you find was, in the manner in which it was used upon the occasion in question, a weapon likely to produce death, the law would presume malice and the intent to kill, but that presumption may be rebutted, that is, it is subject to being overcome by evidence to the contrary."
We find a reasonable juror would not have interpreted this instruction to create a mandatory presumption 1 as the trial court clearly charged the presumption could be overcome by evidence to the contrary. Hosch v. State, 246 Ga. 417, 271 S.E.2d 817 (1980). See also, Johnson v. State, 249 Ga. 621, 292 S.E.2d 696 (1982). Nor do we find that the challenged instruction on intent impermissibly shifted the burden of persuasion to the defendant on this issue. The trial court clearly instructed the jury that the State had the burden of proving intent beyond a reasonable doubt, as well as charging that a person is not presumed to act with criminal intent, but that intent is a jury question. Given these instructions in addition to the trial court's charges on the defendant's presumption of innocence and the State's overall burden of proof, we find the jury could not have interpreted this charge as shifting the burden of persuasion to the defendant. 246 Ga. at 420, 271 S.E.2d 817. 2
(b) The defendant also complains the trial court erred in charging,
The record shows that this precise language was taken from defendant's "request to charge number one" which the trial court charged in its entirety. He cannot now complain the trial court erred in...
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