McDuffie v. State, A93A1080

• Decision Date: 06 August 1993
• Docket Number: No. A93A1080,A93A1080
• Citation: 210 Ga.App. 112,435 S.E.2d 452
• Parties: McDUFFIE v. The STATE.
• Court: Georgia Court of Appeals

Page 452

435 S.E.2d 452

210 Ga.App. 112

McDUFFIE v. The STATE.

No. A93A1080.

Court of Appeals of Georgia.

Aug. 6, 1993.

Reconsideration Denied Aug. 24, 1993.

Jackson & Schiavone, Michael G. Schiavone, Steven L. Sparger, Savannah, for appellant.

Spencer Lawton, Jr., Dist. Atty. and Kimberly Rowden, Asst. Dist. Atty., for appellee.

POPE, Chief Judge.

Defendant was charged with the offenses of kidnapping, theft by taking and escape. Defendant gave notice of his intention to interpose the defenses of not guilty by reason of insanity, guilty but mentally ill and guilty but mentally retarded. The jury found defendant guilty but mentally ill at the time of the crimes. Defendant appeals.

1. Four of defendant's enumerations of error concern the trial court's charge to the jury concerning the alternative verdicts of not guilty by reason of insanity, guilty but mentally ill and guilty but mentally retarded. Essentially, the trial court instructed the jury that they could consider any of these verdicts as an alternative to guilty or not guilty. As required by OCGA § 17-7-131(b)(3), the judge also instructed the jury as to the disposition of the defendant in the event any of those alternative verdicts were returned. Defendant argues the charge was inadequate because the trial judge merely informed the jury that the alternative verdicts could be considered by them but failed to instruct the jury concerning the definition of or criteria for returning any of these alternative verdicts. Defendant also argues the instruction was improper because it failed to inform the jury that they must first determine whether defendant was not guilty by reason of insanity before they could consider the alternative verdict of guilty but mentally ill.

We agree that the charge as given was inadequate. "The [Georgia Supreme Court in Keener v. State, 254 Ga. 699, 334 S.E.2d 175 (1985) ] held that when the trial court charges the jury on the defense of insanity and on guilty but mentally ill at the time of the crime, 'the trial court must make clear to the jury in its charge that if they find the defendant did not have the mental capacity to distinguish between right and wrong (or acted because of delusional compulsion), they must find the defendant not guilty by reason of insanity and must not find the defendant guilty but mentally ill. That is to say, if the jury finds the defendant not guilty by reason of insanity, their deliberations must cease, and the jury should not thereafter consider whether the defendant was guilty but mentally ill. (Emphasis supplied.) A jury is not authorized to find that the defendant did not know right from wrong and is guilty but mentally ill.' [Keener v. State, 254 Ga. at 702-703, 334 S.E.2d 175.]" Price v. State, 179 Ga.App. 598, 601-602, 347 S.E.2d 608 (1986).

In Price, because there was evidence from which a jury could find defendant did not have the capacity to distinguish right from wrong, the charge which did not comply with Keener was improper and, even though defendant did not raise the issue at trial or on appeal, this court concluded pursuant to OCGA § 5-5-24(c) that the charge was harmful as a matter of law. By contrast, in this case no evidence was presented that defendant lacked the capacity to distinguish right from wrong. In fact, both defendant and defendant's expert witness, a psychologist, testified that defendant did recognize right from wrong but was nevertheless compelled by his history of depression to commit the acts of which he was charged. Thus, even though the charge did not adequately instruct the jury concerning the alternative verdict of not guilty by reason of insanity, the error was harmless because no evidence was presented to support such a verdict. Neither was evidence presented to support a verdict of guilty but mentally retarded.

As to defendant's argument that the charge concerning the alternative verdict of guilty but mentally ill was inadequate and confusing, defendant has shown no harm. The jury did not return a simple guilty verdict but found defendant guilty but mentally ill so that defendant is entitled to be sentenced accordingly.

2. In the course of defining the evidentiary standard of reasonable doubt to the jury, the trial court stated: "[T]he State is not required to prove the guilt of the Accused beyond all doubt or to a mathematical certainty. Moral and reasonable certainty is all that can be expected...." The court went on to define reasonable doubt as "a doubt based upon common sense and reason. It does not mean a vague or arbitrary notion, but it is a doubt for which a reason can be given, arising from a consideration of the evidence, the lack of evidence, a conflict in the evidence, or a combination of any of these." Defendant argues that the reference to "moral certainty" is improper and violates the holding of Cage v. Louisiana, 498 U.S. 39, 111 S.Ct. 328, 112 L.Ed.2d 339 (1990). We disagree.

In Cage, in addition to stating that guilt must be found to a moral certainty, the trial court defined reasonable doubt as consisting of " 'such doubt as would give rise to a grave uncertainty.... It is an actual substantial doubt.' ... [Cit.]" Id. at 40, 111 S.Ct. at 39. The United States Supreme Court found the charge improper not because of the use of...