McIlwain v. State, S94A0835

• Decision Date: 15 July 1994
• Docket Number: No. S94A0835,S94A0835
• Citation: 445 S.E.2d 261,264 Ga. 382
• Court: Georgia Supreme Court
• Parties: McILWAIN v. The STATE.

Page 261

445 S.E.2d 261

264 Ga. 382

McILWAIN v. The STATE.

No. S94A0835.

Supreme Court of Georgia.

July 15, 1994.

Robert L. Waller, III, Stone Mountain, Leslie J. Cardin, Atlanta, for McIlwain.

Phil Wiley, Thomas N. Davis, Jr., Asst. Dist. Attys., Daniel J. Porter, Dist. Atty., Lawrenceville, Michael J. Bowers, Atty. Gen., Susan V. Boleyn, Senior Asst. Atty. Gen., Paige M. Reese, Asst. Atty. Gen., Dept. of Law, Atlanta, for appellees.

CARLEY, Justice.

After a jury trial, appellant was found guilty of felony murder, the underlying felony being aggravated assault, and she was sentenced to life imprisonment. She was also found guilty of theft by taking and given a concurrent sentence of 10 years. Her motion for new trial was denied and she appeals. ¹

1. Although appellant does not enumerate the general grounds, we have reviewed the evidence. The victim's body was never found, but appellant's confession, along with other evidence such as the condition of the crime scene and the testimony of the medical examiner, was sufficient to prove the essential elements of the crimes charged beyond a reasonable doubt. White v. State, 263 Ga. 94(1), 428 S.E.2d 789 (1993); Jackson v. Virginia, 443 U.S. 307, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979). See also Chancey v. State, 256 Ga. 415, 421(1)(c), 349 S.E.2d 717 (1986).

2. Relying upon Salisbury v. State, 221 Ga. 718(2), 146 S.E.2d 776 (1966), appellant contends that the trial court erred by failing expressly to withdraw a burden-shifting charge and then to instruct the jury to disregard that charge.

The specific charge is as follows:

If you decide that the person is not guilty beyond a reasonable doubt of malice murder, for instance, in count one, you may and are authorized to find her guilty of the lesser-included offenses.

Although appellant contends that this charge erroneously shifted to her the burden of proving that she was not guilty beyond a reasonable doubt, "[a]n examination of the charge as a whole does not support such an allegation.... We find no error as no burden of proof was placed upon [appellant]." Dillard v. State, 177 Ga.App. 805, 808(7), 341 S.E.2d 310 (1986). Nevertheless, the trial court did agree to give a clarifying recharge and such a clarifying recharge was given. Accordingly, "[t]his is not a case where an incorrect charge is given and subsequently a correct charge given, where the jury is expected to select one to the exclusion of the other...." Troup v. State, 209 Ga. 9, 12(2), 70 S.E.2d 470 (1952). It follows that appellant's reliance upon Salisbury v. State, supra, is misplaced and that this enumeration is without merit.

3. Just prior to the giving of the charge, a juror spoke to the bailiff out of hearing of the other jurors and voiced his concern that defense counsel may have been signaling appellant while she was testifying. The bailiff's only response was that she would bring it to the attention of the trial court. Upon the trial court's inquiry, the juror stated that he had not mentioned his concern to any other juror, had not been affected by it, could still be fair and had not made up his mind. Urging that there had been no coaching of appellant, defense counsel unsuccessfully moved for a mistrial on the grounds that the jury pool was tainted and the juror should have been excused.

Whether defense counsel had given signals to appellant would certainly be a matter for the jury's consideration. The credibility of a defendant who testifies in his own behalf is for the jury, which may consider his demeanor and conduct on the witness stand. Brantley v. State, 190 Ga.App. 642, 643-644(2), 379 S.E.2d 627 (1989); Walker v. State, 132 Ga.App. 274, 278(5), 208 S.E.2d 5 (1974).

However, the issue for resolution does not turn upon the substance of the juror's concern, but rather upon the fact that the juror expressed that concern to a non-juror. "[W]here a communication from the bailiff to [a juror ] is shown, the burden is on the [S]tate to rebut by proof the presumption of harm." (Emphasis supplied.) Battle v. State, 234 Ga. 637, 639, 217 S.E.2d 255 (1975). Here, however, the only communication was from the juror to the bailiff. While the conduct of the juror in choosing to express his concern to the bailiff may not have been proper, the evidence nevertheless shows

"that it was not harmful to [appellant] as there was no evidence of any discussion of the facts of the case or of any attempts to influence the juror." [Cit.] Motions for mistrial based on improper conduct of jurors are addressed to the sound discretion of the trial judge, [cit.], and we find no abuse of that discretion here.

Garner v. State, 174 Ga.App. 628, 629(1), 330 S.E.2d 750 (1985). See also Ellis v. State, 164 Ga.App. 366, 370(9), 296 S.E.2d 726 (1982).

4. Appellant moved to suppress her post-arrest statements on the grounds that her intoxication, her fatigue and police coercion had rendered the statements involuntary. The denial of this motion to suppress is enumerated as error.

After a review of the transcript of the Jackson v. Denno hearing, "we find that the trial court was authorized to conclude that appellant gave a voluntary statement and made a knowing and intelligent waiver of [her] Miranda rights. [Cit.]" Philmore v. State, 263 Ga. 67, 68(2), 428 S.E.2d 329 (1993). See also Sumpter v. State, 260 Ga. 683(2), 398 S.E.2d 12 (1990); Cunningham v. State, 255 Ga. 727, 729(2), 342 S.E.2d 299 (1986). Appellant's reliance upon Ashcraft v. Tennessee, 322 U.S. 143, 64 S.Ct. 921, 88 L.Ed. 1192 (1944) is misplaced. Ashcraft is "clearly distinguishable from the present case." Garrett v. State, 203 Ga. 756, 764(1), 48 S.E.2d 377 (1948).

5. The State proffered a forged check which had been drawn on the victim's account after the murder. The trial court admitted this check into evidence, over appellant's objection that she was not charged with the forgery and that the check would impermissibly place her character into issue.

The...