Mullis v. State

• Decision Date: 30 September 1981
• Docket Number: No. 37738,37738
• Citation: 248 Ga. 338,282 S.E.2d 334
• Court: Georgia Supreme Court
• Parties: MULLIS v. The STATE.

Page 334

282 S.E.2d 334

248 Ga. 338

MULLIS v. The STATE.

No. 37738.

Supreme Court of Georgia.

Sept. 30, 1981.

Diane L. Perry, Perry & Perry, P. C., Tifton, for Elaine mullis.

Vickers Neugent, Dist. Atty., Pearson, Arthur K. Bolton, Atty. Gen., Atlanta, for the State.

MARSHALL, Justice.

The defendant, Elaine Mullis, appeals from her conviction of murder and life sentence.

1. The appellant's version of the evidence is that her husband, the victim, had beaten her on previous occasions; and that, just prior to the homicide, he had slapped her face, hit her on the head with a can or bottle, threatened to kill her, crashed her head into a wall, grabbed her by the throat, and engaged in a struggle, during which the knife she contended she had been using to slice tomatoes accidentally stabbed him in the left chest when they fell against the stove in their kitchen as they struggled. However, there was evidence from which a rational trier of facts could find that she had made prior attacks on him, once with a knife, stating that she would "cut his guts out"; that she had been drinking and taking pills, and was drunk at the time of the homicide; that the victim had had to physically restrain her in her unprovoked attack on a muscular dystrophy victim; that she had then hid a knife in her pants and stabbed the victim when he tried to calm her down.

The state impeached the main defense witness, the son of the victim and the appellant, by other testimony and by the witness' own statement the day following the homicide that his mother, the appellant, had murdered the victim. Her testimony as to prior hospitalization because of beatings by the victim, was impeached by proof that the hospitalization was due to an automobile wreck. Her testimony that she had never before this occasion been unable to recall events, was impeached by medical testimony as to her history of prior memory loss. Finally, her testimony that she had taken out many warrants for the deceased, was impeached by a showing that none had ever been taken.

The evidence when construed in the light favorable to the verdict is sufficient to enable any rational finder of facts to find that each element of the offense was proved beyond a reasonable doubt. Jackson v. Virginia, 443 U.S. 307, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979). The trial judge properly overruled the motions for a directed verdict, judgment n. o. v., and a new trial on the general grounds (enumerated errors 1, 2 and 3).

2. It was not error to exclude testimony of defense witness Hildobrant as to the "battered wife syndrome," contended in enumerated error 4 to be contra to Smith v. State, 247 Ga. 612, 277 S.E.2d 678 (1981), where the testimony sought to be admitted related to the reasonable fears of a defendant which could be comprehended by the average juror and does not meet the test in Smith, supra, that it relate to evidence difficult for the average juror to comprehend.

3. A mistrial was not demanded, as contended in enumerated error 5, by the fact that the alternate juror bought lunch for state's witness Carver, which is alleged to be jury misconduct and reversible error. The trial judge ascertained that the two men had not discussed the merits of the case or the credibility of Carver's testimony, and he excused the alternate juror from the jury and did not allow him to communicate with the other jurors. Following this, the appellant did not request any additional instructions or measures by the court nor renew her motion for a mistrial.

4. Enumerated error 6 contends that the trial court erred in allowing certain testimony over objection on grounds (1) that it was not in rebuttal, as it purported to be, but merely a reopening of the state's case, and (2) that the witnesses were called on rebuttal as a guise to get past the requirement, after demand, to serve defense counsel with a list of witnesses prior to trial.

The state's witness, Gail Mullis, testified that she had overheard the appellant telling her mother over the telephone on the night of the murder, "I'm going to die tonight, or somebody." The appellant later testified, denying making the call and stating that it was "one person's word against mine." Under these circumstances, it was not an abuse of discretion to permit the state to present a witness from the telephone company after the case in chief to prove that the call had been made. Whether or not it was proper rebuttal testimony, it was not harmful to admit it, since it was cumulative and since there was no objection made at the time it was offered. Enumerated error 6 is without merit.

It was not harmful, if error, as contended in enumerated error 7, to exclude certain allegedly admissible evidence of the victim's prior specific acts of violence. Even as to such part of this testimony as was not hearsay, this case is distinguishable from Milton v. State, 245 Ga. 20, 262 S.E.2d 789 (1980), relied on by the appellant, in that in the present case there was evidence that the appellant had armed herself with a knife; that the victim was unarmed and had no history of use of deadly weapons such as would justify the appellants's use of deadly force; and that the victim was not the aggressor, but was merely trying to calm down the appellant and protect his ill friend. Furthermore, even if the evidence could be construed as showing the victim to have been the aggressor, the excluded evidence was merely cumulative of other evidence as to prior beatings, etc.

6. It is not usually cause for new trial that an entire Code section is given, even though a part of the charge may be inapplicable under the facts in evidence. Keller v. State, 245 Ga. 522(1), 265 S.E.2d 813 (1980) and cits. In view of the evidence of the appellant's aggression toward Carver and the victim, the unobjected-to charge of the entirety of Code Ann. § 26-902, including subsection (b), was not grounds for a new trial on the theory that subsection (b) was unsupported by the evidence, required her to put up evidence in support of her defense of self-defense, and placed a burden on her to overcome a presumption that she initially provoked the use of force against herself or was engaged in mutual combat. Enumerated error 8 is without merit.

7. Enumerated error 9 contends that although the trial judge charged the jury on murder, voluntary and involuntary manslaughter, self-defense and justified homicide his instruction giving the form of verdicts which included only "not guilty," "murder," and "voluntary manslaughter," was an expression of his opinion that the appellant could be found guilty of only murder or voluntary manslaughter. The charge viewed as a whole, however, was neither confusing to the jury nor an expression of opinion.

8. Charges on both voluntary and involuntary intoxication were, contrary to the appellant's contention, authorized by evidence that the appellant had drunk some liquor, taken three pills, and was drunk within less than an hour and a half before the homicide. Enumerated errors 10 and 11 are without merit.

9. Enumerated...