Johnson v. State

• Decision Date: 30 June 1982
• Docket Number: No. 38624,38624
• Parties: JOHNSON v. STATE.
• Court: Georgia Supreme Court

Page 696

292 S.E.2d 696

249 Ga. 621

JOHNSON v. STATE.

No. 38624.

Supreme Court of Georgia.

June 30, 1982.

William E. Cannon, Jr., Black & Black, Albany, for Larry Verdell johnson.

Lyn O'Berry, Chief Asst. Dist. Atty., Americus, Michael J. Bowers, Atty. Gen., for The State.

WELTNER, Justice.

Larry Verdell Johnson shot and killed Eddie Rivers, Jr. with a handgun. Johnson appeals from his conviction of murder and sentence of life imprisonment.

1. Johnson contends that the trial court erred in giving to the jury the State's requests to charge as follows: "... and I charge you that under our law when one uses a deadly weapon, a gun, in the usual and natural manner in which the weapon is used, to kill, and death results, the law presumes the intention on the part of the defendant to kill the victim. Under our law, where the State proves that a homicide occurred, the law presumes that the killing was murder, however, that presumption may be rebutted." The charge in its entirety is set out below. ¹ Johnson contends that this language had the effect of shifting the burden of proof to the defendant as to the element of intent and as to the ultimate issue to be decided, that is, whether Johnson had committed the crime of murder, all in violation of the holding in Sandstrom v. Montana, 442 U.S. 510, 99 S.Ct. 2450, 61 L.Ed.2d 39 (1979).

(a) In considering a possible violation of Sandstrom we must first determine what construction a reasonable juror might have placed on the contested charge. Id. at pp. 516, 517, 99 S.Ct. at p. 2455. In this case, the first sentence of the excerpted portion of the charge may have led the jury to believe that the intent to kill was conclusively presumed. Such a reading would be reinforced by the next sentence, which states that such a homicide is presumed to be murder, "... however, that presumption may be rebutted." (Emphasis supplied.) The trial court thus advised the jury relative to two presumptions, designating only the latter as subject to rebuttal. Intent to kill being an essential element of the crime of malice murder, the burden was on the prosecution to prove intent beyond a reasonable doubt. In re Winship, 397 U.S. 358 90 S.Ct. 1068, 25 L.Ed.2d 368 (1970); Mullaney v. Wilbur, 421 U.S. 684, 95 S.Ct. 1881, 44 L.Ed.2d 508 (1975). We therefore hold that the challenged instructions relieved the State of its constitutional burden of proving every element of the crime of murder beyond a reasonable doubt.

In Hosch v. State, 246 Ga. 417(3), 271 S.E.2d 817 (1980), we upheld a charge somewhat similar to the one at issue, where the trial court instructed the jury that the presumption of intent was rebuttable. We concluded in Hosch that "[i]n 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." Id. at 420, 271 S.E.2d 817. In many cases where we have upheld charges to the jury against attacks based on Sandstrom, it appears that the juries were instructed that criminal intent is never presumed, that the burden of proving intent rests on the State, or that intent is always an issue for the jury. Collins v. State, 248 Ga. 687, 286 S.E.2d 8 (1982); Wells v. State, 247 Ga. 792(2), 279 S.E.2d 213 (1981); Lackey v. State, 246 Ga. 331(11), 271 S.E.2d 478 (1980); Bridges v. State, 246 Ga. 323(3), 271 S.E.2d 471 (1980); Blair v. State, 245 Ga. 611(5), 266 S.E.2d 214 (1980); Patrick v. State, 245 Ga. 417(8), 265 S.E.2d 553 (1980); Franklin v. State, 245 Ga. 141 (8, 9), 263 S.E.2d 666 (1980); Smith v. State, 244 Ga. 814(4), 262 S.E.2d 116 (1979); Skrine v. State, 244 Ga. 520, 260 S.E.2d 900 (1979). See also Code Ann. § 25-605.

In the present case, however, there is no language in the jury charge which controverts the presumption of intent. ² Thus, even viewing the charge as a whole [see Cupp v. Naughten, 414 U.S. 141, 146-147, 94 S.Ct. 396, 400, 38 L.Ed.2d 368 (1973) ], a reasonable juror might have understood the intent to kill as conclusively presumed.

The State contends that, if it was error under Sandstrom to charge a presumption of intent to kill, nevertheless the evidence of such intent was so overwhelming as to render the error harmless beyond a reasonable doubt. See Chapman v. California, 386 U.S. 18, 24, 87 S.Ct. 824, 828, 17 L.Ed.2d 705 (1967). Johnson admitted killing the victim in the course of an argument, and his only theory of defense was based on alleged provocation sufficient to reduce the crime from murder to voluntary manslaughter. While the evidence overwhelmingly supports the conclusion that Johnson was guilty of a felonious homicide, we cannot say that it conclusively establishes the intent to kill requisite to a conviction for the crime of murder. The jury was not instructed as to the law of voluntary manslaughter (see Division 2, infra), and lack of premeditation and of a deliberate intent to kill appear to have been Johnson's only defense, and crucial to the case.

Nor can we accept the State's contention that, as Johnson's only theory of defense centered around voluntary manslaughter, intent to kill was admitted, or was not at issue. A defendant does not admit the element of intent by attempting to raise a defense which is never submitted to the jury.

(b) Johnson also objects to the second sentence of the excerpted portion of the charge: "Under our law, where the State proves that a homicide occurred, the law presumes that the killing was murder, however, that presumption may be rebutted." We have found the giving of such a charge to be reversible error where the jury was not instructed that the presumption could be rebutted. Hosch, supra, 246 Ga. 417(4), 271 S.E.2d 817. Among the objectionable features of this charge are that it is phrased in terms of the ultimate issue to be decided, "murder", and it fails to specify that the homicide must be intentional and unlawful. Id. Although in this case the jury was told that the presumption of murder was rebuttable, nevertheless a reasonable juror might have concluded that the defendant was required to disprove the accusation of murder by some quantum of proof, thus impermissibly shifting the burden of proof from the State to the defendant. Sandstrom, supra, 442 U.S. at p. 524, 99 S.Ct. at p. 2459. Mullaney, supra, 421 U.S. at pp. 691-704, 95 S.Ct. at pp. 1885-1892.

2. Johnson contends that the trial court erred in failing upon request to instruct the jury on the law of voluntary manslaughter. See Code Ann. § 26-1102.

On the night of July 24, 1981, Johnson, age 23, was sitting with some friends on a set of truck scales in the rear parking area of a barbeque establishment in Smithville, Georgia. Johnson had a .38 caliber revolver concealed under a towel placed next to him on the scales. The victim, Eddie Rivers, Jr., age 16, was in the front parking area of the restaurant.

According to Johnson's own statement, Johnson called out to Rivers, inviting him around back for a beer. Rivers began "cussing" at Johnson, calling him a "half-legged son of a bitch" (Johnson walked with a limp), insulting his mother, and threatening to beat him up. Johnson told Rivers to go away, pointing to the front parking area, but Rivers hit his hand "three or four times." Johnson produced the pistol and shot Rivers in the head.

The testimony of witnesses for the State as to who started the argument was unclear, and they expressed some disagreement as to who slapped whose hand (one witness indicated that the victim pointed and Johnson slapped his hand away). It is the State's position that Johnson initiated the argument as an excuse for killing the victim, and that he cannot rely on such conduct to justify a...