Parham v. State, 44384

• Decision Date: 26 November 1969
• Docket Number: No. 44384,2,Nos. 1,3,44384,s. 1
• Parties: James PARHAM v. The STATE
• Court: Georgia Court of Appeals

Page 911

171 S.E.2d 911

120 Ga.App. 723

James PARHAM v. The STATE.

No. 44384.

Court of Appeals of Georgia, Division Nos. 1, 2, 3.

Nov. 26, 1969.

Syllabus by the Court

In a criminal case a charge to the jury that alibi must be established by the defendant to the reasonable satisfaction of the jury is error for the reason that it shatters the presumption of innocence, creates confusion in the minds of the jury, shifts the burden of persuasion to the defendant on the issue of his presence at the crime and requires him to establish his innocence, is inconsistent with the principle that the State must prove the defendant's guilt beyond a reasonable doubt, and thereby violates fundamental rights incorporated in the due process clause of the Fourteenth Amendment of the United States Constitution.

The defendant appeals from his conviction and sentence of 20 years for burglary, and from the overruling of his motion for new trial, enumerating as error the court's charge to the jury that 'Alibi as a defense must be established by the defendant to the reasonable satisfaction of the jury.'

Cook & Palmour, A. Cecil Palmour, Summerville, for appellant.

Earl B. Self, Dist. Atty., Summerville, for appellee.

HALL, Judge.

The trial court adequately charged the jury on the presumption of the defendant's innocence and the State's burden of proof to overcome this presumption by evidence convincing them of his guilt beyond all reasonable doubt, and the jury's duty to acquit if a reasonable doubt of guilt remained in their minds. On the subject of alibi the court charged: 'Alibi as a defense must be established by the defendant to the reasonable satisfaction of the jury and must be such as reasonably to exclude the possibility of the presence of the defendant at the scene of the offense at the time of its commission. When so established to the reasonable satisfaction of the jury, it is the duty of the jury to acquit. Evidence as to alibi should be considered by the jury in connection with all the other evidence in the case. And if on considering the evidence as a whole the jury should entertain a reasonable doubt as to the guilt of the accused, it is their duty to acquit. I charge you that alibi need not be proved beyond a reasonable doubt by the defendant, but just to the reasonable satisfaction of the jury. But any evidence whatever of alibi is to be considered with the rest of the testimony and if the evidence as a whole raises reasonable doubt of guilt, doubt must be given in favor of innocence.'

Comparable charges on the subject of alibi have been considered and approved by the Georgia appellate courts. Eugee v. State, 159 Ga. 604, 606, 126 S.E. 471; Laminack v. State, 187 Ga. 648, 2 S.E.2d 99; Hale v. State, 110 Ga.App. 236, 138 S.E.2d 113. This defendant was convicted and sentenced on July 23, 1968. We must now consider the charge in light of a decision of the United States Supreme Court rendered December 16, 1968. Johnson v. Bennett, 393 U.S. 253, 89 S.Ct. 436, 21 L.Ed.2d 415. This decision is controlling if it means the due process clause of the Fourteenth Amendment of the United States Constitution is violated by the charge. 'Under the Constitution of Georgia its supreme law is the Constitution of the United States. Code Ann. § 2-8001. The public policy of the State reflected by its statutes (or case law) is subordinate to the Federal Constitution.' Connell v. Connell, 119 Ga.App. 485, 494, 167 S.E.2d 686, 692. Furthermore, 'In a case where questions arising under the Federal constitution are properly invoked, this court is bound to follow the decisions of the Supreme Court of the United States as respects such questions.' Mason & Dixon Lines, Inc. v. Odom, 193 Ga. 471(2), 18 S.E.2d 841. In Young v. State, 225 Ga. 255, 167 S.E.2d 586, the Supreme Court of Georgia disagreed with a contention that a like charge on alibi violated the Due Process Clause of the Fourteenth Amendment of the Federal Constitution. However, the court in the Young case did not consider the decision of the United States Supreme Court in Johnson v. Bennett, supra, or the decisions in Stump v. Bennett, 398 F.2d 111 (8th Cir. 1968), State v. Galloway, Iowa, 167 N.W.2d 88, and the decision of the Eighth Circuit on July 17, 1969 in Johnson v. Bennett, 414 F.2d 50, hereinafter discussed.

The first decision of the Eighth Circuit Court of Appeals in the Johnson case rejected the contention that due process was violated by a charge that the burden is upon a criminal defendant to prove the defense of alibi by a preponderance of the evidence. Johnson v. Bennett, 386 F.2d 677 (8th Cir. 1967). After the Supreme Court granted certiorari to review the Johnson case, the Eighth Circuit in another case, reversing a conviction affirmed by the Iowa Supreme Court, condemned a charge that 'the defendant has the burden of establishing this defense (alibi) by * * * a preponderance or greater weight of the evidence bearing upon it.' The charge was held to violate fundamental rights incorporated in the due process clause of the Fourteenth Amendment to the United States Constitution. It was confusing and inconsistent with the defendant's right to have the State prove his presence at the crime beyond a reasonable doubt. 'The presumption of innocence is permanently shattered as to evidence relating to (1) the presence of the defendant, (2) the time and (3) the place of the crime itself.' As to these elements of the crime, the charge shifted the burden of persuasion to the defendant and required him to establish his innocence. The charge was not harmless though it was given in connection with other instructions that even if the greater weight of the evidence on alibi fails to establish that defense, if the evidence as a whole, including that on alibi, creates a reasonable doubt of the defendant's guilt, the jury should return a verdict of not guilty. Stump v. Bennett, 398 F.2d 111 (8th Cir. 1968). After the Stump decision the Supreme Court remanded the Johnson case to the Eighth Circuit for reconsideration in view of the Stump decision. This was an implicit approval by the Supreme Court of the Stump decision. Subsequent to the decision of the Supreme Court of the United States in the Johnson case, the Supreme Court of Iowa referred to the above rulings and said, 'Pursuant to these pronouncements and mandates by the United States courts the alibi instruction can no longer be approved.' On July 17, 1969, the Eighth Circuit Court of Appeals followed the mandate of the Supreme Court by reversing its previous decision in the Johnson case and followed Stump v. Bennett, supra. Johnson v. Bennett, 414 F.2d 50, supra.

The Eighth Circuit's opinion in the Stump case noted that Iowa was 'one of only two states which now require a defendant to assume the burden of persuasion by a preponderance of evidence in establishing an alibi. * * * Georgia's rule is similar though not identical to Iowa's.' Stump v. Bennett, supra, 398 F.2d p. 114. Of the Georgia rule the Georgia Supreme Court has said: 'The preponderance of the testimony might or might not show the facts of the alleged alibi to the reasonable satisfaction of the jury. Less than a preponderance might do so; more might not.' Bone v. State, 102 Ga. 387, 393, 30 S.E. 845, 848.

The Georgia courts have held that when the defendant presents evidence to show he could not have been present at the time and place of the alleged crime, the trial court is required to charge on the 'defense' of alibi. Fletcher v. State, 85 Ga. 666, 11 S.E. 872; Moody v. State, 114 Ga. 449, 40 S.E. 242; Kitchens v. State, 209 Ga. 913, 914, 76 S.E.2d 618. However, the duty to instruct on alibi could be fulfilled by instructing that the evidence presented to prove alibi, considered alone or with all the other evidence, need only be sufficient to create a reasonable doubt of the defendant's guilt. This is a true and simple statement of the law. It is consistent with Georgia Code § 38-122 and could be charged in connection with it.

Alibi is not truly an independent affirmative defense. It is simply evidence in support of a defendant's plea of not guilty, and should be treated merely as 'evidence tending to disprove one of the essential factors in the case of the prosecution, that is, presence of the defendant at the time and place of the alleged crime.' Stump v. Bennett, supra, 398 F.2d p. 115; 21 Am.Jur.2d 206, § 136; Anno. 29 A.L.R. 1139, 67 A.L.R. 138, 141, 124 A.L.R. 471, 474. However, the instructions usually given to the jury and approved by the Georgia appellate courts in the past have treated alibi as an affirmative defense and created an anomaly in the law. 11 Encyclopedia of Georgia Law (Evidence) 379, § 138; Green, Georgia Law of Evidence 75, § 21. Professor Agnor stated the problem succinctly in his Evidence chapter in the Encyclopedia of Georgia Law, supra: 'The Georgia courts have treated several defenses as affirmative defenses that are not true affirmative defenses. One is the matter of alibi as a defense. Alibi is not a true affirmative defense. It is simply evidence rebutting the case for the prosecution. It is a denial of the charge against the defendant. A number of jurisdictions have properly considered alibi as not being an affirmative defense and give examples of a proper charge. However, Georgia holds that alibi is an affirmative defense and this causes trouble with the charge to be given to the jury. The jury is charged that the defendant must establish alibi by a preponderance of the evidence, but then must also be charged that the evidence as to alibi must be considered with all the other evidence in the case and that if they then have a reasonable doubt as to his guilt they must acquit. In other words, first he must prove by a preponderance of the evidence that he was not present at the scene of the offense at the time of its commission, but no, really all he must do is raise a reasonable doubt as to his presence. First it...