Neal v. State

• Decision Date: 25 November 1981
• Docket Number: No. 62305,62305
• Citation: 287 S.E.2d 399,160 Ga.App. 498
• Parties: NEAL v. The STATE.
• Court: Georgia Court of Appeals

Page 399

287 S.E.2d 399

160 Ga.App. 498

NEAL v. The STATE.

No. 62305.

Court of Appeals of Georgia.

Nov. 25, 1981.

E. Marcus Davis, Rosalyn S. Kadish, Atlanta, for appellant.

Lewis R. Slaton, Dist. Atty., Joseph J. Drolet, Russell Parker, Benjamin H. Oehlert, III, Asst. Dist. Attys., for appellee.

McMURRAY, Presiding Judge.

Defendant was indicted for the offense of murder of her husband. The jury returned a verdict of involuntary manslaughter, and defendant was sentenced to three and one-half years in confinement. After defendant's motion for new trial was filed and denied, defendant appeals. Held :

1. At trial during the state's questioning of one of its witnesses, a police officer involved in the investigation of the case, the following exchange occurred: "Q. Okay. And did you participate in that preliminary hearing? A. Yes, I did, sir. Q. And do you recall how the defendant pled on that date? A. Yes. Q. And how did she plead? A. Not guilty. Q. Not guilty. In other words, was she represented by an attorney? A. Yes. Q. Now, sir, on that day, was it brought to your attention, by anyone, including the defense attorneys that Donna Neal had been hearing voices? A. No, sir. That wasn't brought out in preliminary hearing, sir. Q. Was there anything at the preliminary hearing brought out that she had been hearing voices telling her that her husband was going to kill her? A. No."

Defense counsel objected to this line of questioning and moved for a mistrial and at the very least to have the questions and answers stricken, arguing that the exchange amounted to an impermissible comment upon the defendant's exercise of her right to remain silent. The trial court overruled both the motion for mistrial and the objection, declining to give curative instructions to the jury.

Defendant now contends that admitting this testimony was harmful error under the authority of such cases as Smith v. State, 140 Ga.App. 385, 388(3), 231 S.E.2d 83, and Hall v. State, 138 Ga.App. 20-21(3), 225 S.E.2d 705. Both of these cases deal, not with the silence of a defendant at a preliminary hearing, but with the silence of the defendant at the time of his arrest. See also Doyle v. Ohio, 426 U.S. 610, 96 S.Ct. 2240, 49 L.Ed.2d 91.

The state, in turn, also fails to cite any cases dealing with a silence of a defendant at a preliminary hearing, but instead relies upon cases dealing with the permissibility of comment upon a defendant's failure to present evidence "to rebut the proof adduced by the state." Holmes v. State, 148 Ga.App. 817(2), 253 S.E.2d 237. See also Battle v. State, 155 Ga.App. 541, 542(4), 271 S.E.2d 679.

The difference in the results reached by the cases relied upon by the opposing parties in the case sub judice rests in part on the distinction between a comment on a defendant's silence which is constitutionally protected as opposed to the inference which arises from a failure to present evidence in one's defense when such would be reasonably expected. The testimony involved here is more in the nature of a comment upon the defendant's failure to present certain evidence at the preliminary hearing as opposed to the defendant's individual exercise of her constitutional right to remain silent. Although this might seem to bring the case sub judice within the ambit of the cases relied upon by the state, the crucial question remains as to whether the silence of the defendant under the circumstances of the preliminary hearing is such as to be of some probative force on the question of whether the defendant's silence is an expression of agreement with contemporaneous statements of her accusers. "Silence gains more probative weight where it persists in the face of accusation, since it is assumed in such circumstances that the accused would be more likely than not to dispute an untrue accusation. Failure to contest an assertion, however, is considered evidence of acquiesence only if it would have been natural under the circumstances to object to the assertion in question. 3A Wigmore § 1042." United States v. Hale, 422 U.S. 171, 176(2), 95 S.Ct. 2133, 2136, 45 L.Ed.2d 99.

The purpose of a commitment hearing is simply to determine whether there is probable cause (sufficient reason to suspect) to believe the accused guilty of the offense charged, and if so, to bind the accused over for indictment by the grand jury. See Code Ann. § 27-407 (Ga.L.1980, p. 415); State v. Middlebrooks, 236 Ga. 52, 54(2), 222 S.E.2d 343. The state's burden at the commitment hearing is simply to show probable cause to believe the accused guilty, and if so, to bind him over to the grand jury for indictment, rather than to show guilt beyond a reasonable doubt, as at trial. An individual accused of criminal misconduct might often determine as a matter of tactics or strategy that the presentation of a defense at this hearing would serve little or no constructive purpose. Indeed, it might impose a disadvantage upon the accused to prematurely disclose his defenses. Consequently, it cannot be said that it would be universally anticipated that the accused would object to the assertions contained in the accusation nor present his defense thereto. In such cases silence of the accused and the decision of the accused to present no evidence can carry no reasonable inference as to the accused's guilt. Such silence is ambiguous and of no probative value. The trial court erred in allowing this testimony, emphasizing such silence, to remain before the jury by overruling both the defendant's motion to strike (to be accompanied by curative instructions to the jury) and motion for mistrial.

2. Defense counsel attempted to introduce evidence as to previous instances between the defendant and deceased involving physical violence but was unable to present such evidence before the jury due to the trial court sustaining the state's objection on the basis that it was improper to introduce evidence as to specific instances of prior conduct by deceased. Defense counsel was permitted to make an offer of proof outside the presence of the jury, submitting the testimony of two of the defendant's sisters as to the instances involving loud arguments between deceased and defendant and of deceased striking defendant. One sister testified that, "I saw him [deceased] beating on her [defendant]. He had her over behind their bed, and he was beating on her like he was beating on another man [and] when he got off of her ... she had a few bruises on her face then." The other sister testified, "... I heard a lot of noise. So it's when I got up and went to their bedroom, and the door was like open, and that's when I saw Daniel [deceased] had Donna's [defendant] head like between her legs and was just beating on her." These instances as to which the offer of proof was made had occurred some seven years or more prior to the offense with which defendant is charged.

We first review the state's contention that there was no evidence of an attack being in progress upon the defendant by the deceased husband at the time she shot him. She testified that she had moved his gun because she was frightened he would use it upon her. Defendant testified that upon leaving she told the deceased she wanted to leave and all she wanted him to do was sit still until she left, that she fired at the wall to scare him and that he jumped up and ran around to the garage to let the dog out and she was scared of the dog (although there was evidence that the dog was merely a small puppy). Defendant testified that she fired again at the dog and by that time the deceased husband "was on me, and that is when we had a tussle." Although the evidence as to these events is ambiguous, and defendant testified that she had a loss of memory as to the circumstances surrounding the critical moments, the above noted testimony is sufficient to present an issue as to whether defendant was being attacked by her husband at the time of the shooting and is corroborated in some degree in that one of the neighbors who witnessed some of these events heard a noise that sounded like a firecracker. She then saw two people "fighting" in the driveway. This neighbor testified that "[t]he person [male] in the white shirt was beating up on the other person that was in dark clothing."

There is no dispute that on a trial for murder evidence of prior difficulties between the defendant and the deceased is admissible in shedding light on the state of feelings between the accused and the deceased. In reviewing earlier cases on this point, we find the state has most commonly relied upon this rule for the purpose of presenting evidence as to defendant's motive, while defendants have presented such evidence for the purpose of showing the reasonableness of a defendant's apprehension of danger at the time of the homicide.

The remaining point of difference between the parties in the case sub judice relates to whether evidence involving previous instances between the deceased and the defendant which occurred at a point in time remote to the incident resulting in the homicide may be introduced into evidence under the above mentioned rule. The state, relying upon such cases as Boling v. State, 244 Ga. 825, 828(5), 262 S.E.2d 123, argues that only "recent prior difficulties" between the defendant and the deceased are admissible for this purpose. However, we believe that "recent prior difficulties" is merely descriptive of the facts in the cases containing such language and is not intended to be restrictive. The correct rule is that the length of time intervening is only material as affecting the credibility and weight to be given such evidence. Baker v. State, 142 Ga. 619, 621, 83 S.E. 531. See also Milton v. State, 245 Ga. 20, 22-26, 262 S.E.2d 789. The trial court erred in excluding from evidence the testimony of defendant's sisters as to prior difficulties between the defendant and the deceased.

3. Code Ann. § 27-1503 (Ga.L.1977, pp. 1293, 1295) requires...