Milton v. State, 35477
| Decision Date | 04 January 1980 |
| Docket Number | No. 35477,35477 |
| Citation | 245 Ga. 20,262 S.E.2d 789 |
| Court | Georgia Supreme Court |
| Parties | MILTON v. The STATE. |
Falligant, Sims & Donaldson, R. B. Donaldson, Jr., Savannah, for appellant.
Andrew J. Ryan, III, Dist. Atty., Stephen R. Yekel, Asst. Dist. Atty., Arthur K. Bolton, Atty. Gen., Russell N. Sewell, Jr., Asst. Atty. Gen., for appellee.
Freddie M. Milton appeals his conviction for the murder of his former wife, Marie Benjamin Milton. He was sentenced to life imprisonment. His only enumeration of error contends that the court erred in excluding on motion of the State his testimony and the testimony of one of his witnesses concerning four specific occasions upon which the deceased had attacked him with various weapons. This court reverses.
The deceased had returned from the laundromat and had blown the horn for her three children to help her remove the clothes from the automobile. Her children had come outside to help her. The defendant drove up and parked behind the deceased's automobile. The children were told by their mother to go play on the swings in the yard while their mother talked to the defendant. While playing, the children heard their mother and the defendant arguing. She was standing next to the defendant's automobile in which he was sitting during the entire incident. The children, or at least one of them, then heard and saw the following: A shot was fired. Their mother clutched her side and started bending over, after which additional shots were fired as she fell to the ground and lay on the ground. Blood spurted from her body as she was hit, and dirt was kicked up beside her when one shot missed her as she was lying on the ground. The gun continued to click as its firing mechanism was operated after it was empty. The defendant then turned on his headlights and drove away.
A neighbor heard the gunshots and the children's screaming, and saw the defendant driving out of the driveway. The state's pathologist who conducted the autopsy discovered four gunshot wounds in the body, all inflicted at close range, some of which were sustained in a manner consistent with the deceased's having been leaning forward or lying on the ground when they were inflicted.
The defendant testified that he never saw a gun or weapon in the possession of the deceased before he fired. His taped interview by a detective was played for the jury during which the defendant was heard to say, "I don't know whether she had one gun or not, but that's what she told me." The detective testified that the defendant had said he never had known the deceased to carry a gun and that she did not own a gun.
The state's motion in limine was sustained, directing the defendant and his counsel to refrain from making any reference before the jury to previous specific acts of violence on the part of the deceased toward the defendant. Defendant made a showing under oath outside the presence of the jury. He would have testified, had the state's motion not been sustained, that he honestly was trying to defend himself; that she had threatened to kill him, had told him she had a gun in her purse and had started reaching into the purse before he started shooting her; that she had shot him in the hand during an argument in 1971; that she had cut his lip with a butcher knife during an argument in 1978; that during another argument she threw a jar at him which cut his foot; that during another argument she had tried to cut him with a knife but he had gotten it away from her; and that his sister, Mary Carter, had witnessed this last occurrence, and would testify concerning it.
The state contends that Milton impermissibly was seeking to prove the general character of the deceased for violence by proving specific instances of violence by the deceased against Milton. Milton contends that he was not attempting to prove the general character of the deceased for violence. Rather, he contends that he was attempting to illustrate the basis for his reasonable belief that he had to shoot his wife because she was trying to shoot him. Proof of defendant's reasonable belief that he needed to shoot first was the key to a successful defense of self-defense. Code Ann. § 26-902(a).
The reputation or character for violence of a victim of homicide usually is irrelevant and inadmissible in a murder trial because it is just as unlawful to murder a violent person as it is to murder a nonviolent person. Doyal v. State, 70 Ga. 134, 148 (1883); Baker v. State, 142 Ga. 619, 622, 83 S.E. 531 (1914); Henderson v. State, 234 Ga. 827, 828, 218 S.E.2d 612 (1975). The deceased's general reputation or character for violence has been held to be admissible "only when there has been a prima facie showing (by the defendant) that three elements are present: that the deceased was the assailant; that the deceased assailed defendant; and that defendant was honestly seeking to defend himself." Curtis v. State, 241 Ga. 125, 126(1), 243 S.E.2d 859, 860 (1978). To the same effect: Campbell v. State, 222 Ga. 570, 573, 151 S.E.2d 132 (1966); Black v. State, 230 Ga. 614, 615, 198 S.E.2d 314 (1973); Henderson v. State, supra. The rule requiring proof by the defendant of a prima facie case of present assault by the deceased on the defendant also applies in cases in which the defendant seeks to prove prior specific assaults by the deceased upon the defendant to illustrate his contention that he reasonably believed he had to use deadly force to defend himself. Maynor v. State, 241 Ga. 315, 245 S.E.2d 268 (1978). It long has been stated that the general reputation or character of the deceased for violence cannot be established by proof of prior specific acts of violence. Doyal v. State, supra; Warwick v. State, 125 Ga. 133(6), 53 S.E. 1027 (1906); Campbell v. State, supra; Black v. State, supra. It is upon the authority of the latter cases that the state contends that the trial court correctly sustained the state's motion in limine and precluded all testimony by the defendant and a defense witness relating to the four prior acts of violence by the deceased against the defendant. Some of the reasons for this rule were stated in Henderson v. State, supra, 234 Ga. at p. 829, 218 S.E.2d at p. 615, as follows: "(1) A single act may have been exceptional, unusual, and not characteristic and thus a specific act does not necessarily establish one's general character; (2) although the state is bound to foresee that the general character of the deceased may be put in issue, it cannot anticipate and prepare to rebut each and every specific act of violence; and (3) permitting proof of specific acts would multiply the issues, prolong the trial and confuse the jury."
The defendant contends with equal fervor that decisions of this court authorize introduction in evidence of testimony concerning his former wife's prior acts of violence toward him to illustrate to the jury the reasonable basis for his belief that he needed to shoot her to protect himself from being shot by her. From the defendant's viewpoint, limiting his testimony and the testimony of his witnesses strictly to the deceased's general character for violence "leaves the testimony as to (the deceased's character for) violence so general, conclusory and vague as to be of little benefit to the accused." Henderson v. State, supra, at p. 829, 218 S.E.2d at p. 615. Certainly, the exclusion of this testimony would be harmful if erroneous.
The defendant principally relies upon Baker v. State, 142 Ga. 619, 83 S.E. 531 (1914), wherein this court held that it was harmful error for the trial court to exclude from evidence testimony to the effect that about eleven months before the homicide the deceased had made an unprovoked attack upon the accused with a deadly weapon, and that about six weeks before the homicide he cursed the accused and threatened to whip him. As basis for this decision, Justice Lumpkin quoted with approval from 2 Wharton's Crim.Ev. (10th ed.) § 918, as follows: " ...
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...we have emphasized that “it is just as unlawful to murder a violent person as it is to murder a nonviolent person.” Milton v. State, 245 Ga. 20, 22, 262 S.E.2d 789 (1980). And our cases have been chary about allowing defendants to circumvent this presumption. In addition to Hill and Render,......
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