Milam v. State, 42652

• Decision Date: 12 March 1986
• Docket Number: No. 42652,42652
• Citation: 255 Ga. 560,341 S.E.2d 216
• Parties: MILAM v. The STATE.
• Court: Georgia Supreme Court

Page 216

341 S.E.2d 216

255 Ga. 560

MILAM v. The STATE.

No. 42652.

Supreme Court of Georgia.

March 12, 1986.

Reconsideration Denied April 1, 1986.

J. Russell Mayer, Atlanta, for Willie Morris Milam.

Lewis R. Slaton, Dist. Atty., Atlanta, Michael J. Bowers, Atty. Gen., Eddie Snelling, Jr., Asst. Atty. Gen., for the State.

BELL, Justice.

Appellant Willie Morris Milam was indicted for the malice murders of Ben Cheese and Horace Milam. A jury found appellant not guilty by reason of insanity as to Cheese, and guilty but mentally ill as to Horace Milam. Appellant was sentenced to life imprisonment for the murder of Horace Milam, and he now appeals, raising two enumerations of error. ¹ We affirm.

There was evidence presented at trial which showed that on the day of the homicide appellant spent several hours at the residence of his father, Horace Milam. Also present were several other members of appellant's family and Cheese, who was a family friend. During the afternoon appellant's stepbrother, Walter Beasley, went to his bedroom, leaving the others in the living area. At approximately 4 p.m. Cheese went to use the bathroom. Appellant went to his father's bedroom and obtained a single-barreled, single-shot shotgun belonging to his father. As Cheese exited the bathroom appellant shot him. Beasley testified that he opened his bedroom door after hearing the gunshot and walked down a hallway toward Horace Milam's bedroom. Appellant, who was standing inside the bedroom, yelled for Beasley to get back, and Beasley returned to his room. Horace Milam stepped over Cheese and went into his own bedroom, where he was shot by appellant. Appellant left Horace Milam's bedroom and ran out of the house with the shotgun. An off-duty police officer observed him exiting the house, and gave chase and arrested him. Autopsies showed that Horace Milam died of a close range wound to the chest, and that Cheese died of a contact wound to the chest and abdomen.

Several family members testified that in the past appellant had told them he heard voices. A psychiatrist who interviewed appellant after the killings testified that appellant told him that he had heard voices in the past, and that on the day of the killings the voices had made him very angry, and that he had "wanted to blast away everybody." The psychiatrist testified that in his opinion appellant exhibited inappropriate affect during the interview. He said that he could not say whether appellant had known right from wrong at the time of the killings, but he was of the opinion that, based on what appellant told him during the interview, he was mentally ill, specifically, that he suffered from schizophrenia. On cross-examination the psychiatrist stated that appellant now could distinguish right from wrong, but that he could not "apply it to himself" because his illness incapacitated him to make a judgment. Although he did not administer any tests for intelligence and abilities, he felt, based on his professional experience, that appellant was at least borderline retarded.

Appellant took the stand and admitted shooting Cheese and Horace Milam. He testified that on the day of the murder he was angry because he was thinking of horses flying through his head, was seeing demons, and was hearing voices which were driving him mad. He said he had not known what he was doing at the time of the killings, and that he had not meant to kill Cheese and his father. He said that he killed them for no reason, and would not have killed them if he had not been so angry.

1. In his first enumeration of error, Milam contends that the presentation to the jury of the guilty but mentally ill verdict option unconstitutionally infringed on his affirmative defense of insanity. See Worthy v. State, 253 Ga. 661, 667(6), 324 S.E.2d 431 (1985), where we observed that "[d]efendant's argument that the guilty but mentally ill option operates to deprive insane defendants of the defense of insanity will have to await a proper case."

We find no error, as the record reflects that appellant twice specifically acquiesced in the presentation of this option to the jury. The first acquiescence occurred during a charge conference between the court and counsel. One of the state's requests to charge, No. 7, defined mental illness, and informed the jury that it was authorized to return a verdict of guilty but mentally ill if it believed beyond a reasonable doubt from the evidence that Milam was guilty but mentally ill at the time of the killings. During the charge conference the court informed counsel for appellant that it felt the charges were all right, and asked counsel whether he objected to them. Milam's attorney told the court that he had no objection, and felt that they were all appropriate.

The second acquiescence occurred after closing arguments to the jury, when the court held a supplementary charge conference on the issue of the guilty but mentally ill option. During that conference the court informed counsel for the parties that it thought it should instruct the jury in accordance with OCGA § 17-7-131(a)(1), which defines "insane at the time of the crime" as meeting the criteria of OCGA § 16-3-2 and 16-3-3; OCGA § 17-7-131(a)(2), which defines the term "mentally ill;" and OCGA § 17-7-131(b)(1), which specifies the four alternative verdicts in all cases in which the defense of insanity is interposed. Appellant's counsel expressly agreed with the court's plan.

Inasmuch as the record clearly shows that appellant's counsel acquiesced in the presentation of the guilty but mentally ill option to the jury, appellant is estopped from contending on appeal that the option infringed on his defense of insanity.

2. In his second enumeration of error, Milam argues that the verdicts are inconsistent. We find no error.

In a special concurrence to Hines v. State, 254 Ga. 386, 387-88, 329 S.E.2d 479 (1985), Chief Justice Hill stated that he "would abolish our inconsistent verdict rule in criminal cases. See Dunn v. United States, 284 U.S. 390, 393-394 (52 SC 189, 76 LE 356 (1932); United States v. Powell, 469 U.S. [---- (105 SC 471, 83 LE2d 461) (1984)." After further consideration of his special concurrence this court is now convinced, for the reasons stated by the United States Supreme Court, see United States v. Powell, supra, 469 U.S. at ----, 105 S.Ct. at 476-479, that the position of Chief Justice Hill ought to be adopted. Therefore, the inconsistent verdict rule in criminal cases is hereby abolished. Since appellant's second enumeration is predicated upon that rule, the abolition of that rule renders the enumeration nugatory.

3. We have reviewed the record, and find that with regard to the murder of Horace Milam, the evidence supports the jury's rejection of appellant's insanity defense and the verdict of guilty but mentally ill.

With respect to the jury's finding of sanity, "[t]he appropriate standard of appellate review of the sufficiency of the evidence ... is whether, after reviewing the evidence in a light most favorable to the state, a rational trier of fact could have found that the defendant failed to prove by a preponderance of the evidence, that [he] was insane at the time of the crime. Brown v. State, 250 Ga. 66, 72 (295 S.E.2d 727) (1982)." Butler v. State, 252 Ga. 135, 136, 311 S.E.2d 473 (1984).

In determining whether appellant carried his burden of proof on the issue of sanity, we must first address appellant's contention that the jury's verdict of not guilty by reason of insanity as to the killing of Ben Cheese created a presumption that appellant was insane at the time he killed Horace Milam. In Clark v. State, 245 Ga. 629, 643-646(5), 266 S.E.2d 466 (1980), we held that a defendant's insanity acquittal established that he met the criteria for civil commitment at the time of the crime, and that such a finding, pursuant to OCGA § 24-4-21, raised a presumption of insanity which continued until the defendant's release hearing.

Based on Clark, supra, 245 Ga. 629, 266 S.E.2d 466, we hold that appellant's insanity acquittal with regard to the killing of Cheese raised a presumption that he was...