Riggins v. State, 25756

• Decision Date: 21 May 1970
• Docket Number: No. 25756,25756
• Citation: 174 S.E.2d 908,226 Ga. 381
• Parties: Charles Lee RIGGINS v. The STATE.
• Court: Georgia Supreme Court

Page 908

174 S.E.2d 908

226 Ga. 381

Charles Lee RIGGINS v. The STATE.

No. 25756.

Supreme Court of Georgia.

May 21, 1970.

Margaret Hopkins, Jess H. Watson, Atlanta, for appellant.

Lewis R. Slaton, Dist. Atty., Carter Goode, John A. Nuckolls, Tony H. Hight, Arthur K. Bolton, Atty. Gen., Harold N. Hill, Jr., Executive Asst. Atty. Gen., Marion O. Gordon, Courtney Wilder Stanton, Asst. Attys. Gen., Atlanta, for appellee.

Syllabus Opinion by the Court

PER CURIAM.

Charles Lee Riggins appeals his sentence of life imprisonment for rape. Held:

1. Enumeration of error number 2 complains that the 'court erred in denying the appellant's motion for mistrial on the ground of a prejudicial statement by the court during selection of the jury, and in the presence of prospective jurors, that the burden was upon appellant to establish his plea of insanity at the time of commission of the act, beyond a reasonable doubt; and thereafter to correct the statement to one which must be to a reasonable certainty.'

The record shows that when the statement 'beyond a reasonable doubt' was made, an objection was made thereto, and a colloquy between the court and counsel took place. During this colloquy, the trial judge stated to appellant's counsel that the defense must be established to the 'reasonable satisfaction of the jury, and by a preponderance of the evidence * * * to the reasonable satisfaction of the jury, but the overall consideration of the case by the jury, considering all the facts and circumstances must be in a criminal case beyond a reasonable doubt.' The court then instructed the jury that appellant's insanity must be established 'to the reasonable satisfaction of the jurors * * * It's to a reasonable certainty.'

The appellant argues that this colloquy and instruction by the court thereon confused the jurors who would be selected to try the appellant. He further argues that this colloquy and instruction confused the jury when they were later instructed on the State's burden of proving the guilt of the appellant beyond a reasonable doubt and the lesser burden upon the appellant to establish his plea of insanity by a preponderance of the evidence.

The appellant also complains in enumerations of error Numbers 7 and 8 that when the judge instructed the jury on the meaning of the word 'preponderance' and 'reasonable doubt,' the jury became confused because of the colloquy and instruction set out in enumeration of error Number 2.

'In every criminal case the presumption is that the defendant was sane at the time of the commission of the crime, and the burden of proof rests upon him to show to the contrary. He must show that, not beyond a reasonable doubt, but to the reasonable satisfaction of the jury. * * * Beck v. State, 76 Ga. 452.' Barker v. State, 188 Ga. 332, 335, 4 S.E.2d 31; Lively v. State, 178 Ga. 693, 699, 173 S.E. 836; Carroll v. State, 204 Ga. 510(2), 50 S.E.2d 330; McLendon v. State, 205 Ga. 55(3), 52 S.E.2d 294; Walker v. State, 208 Ga. 99(3), 65 S.E.2d 403.

We hold that the trial judge correctly charged the law applicable to the issues and that his charge could not have confused the jury on the issues before it.

(a) Enumeration of error Number 10 complains that the trial court erred in charging the jury to 'determine the issues by the preponderance of the evidence.'

'Undoubtedly it was inaccurate to charge the jury as to the preponderance of testimony in a criminal case; but when the charge of the court is taken as a whole, it will appear that the error complained of is harmless, because the jury were instructed that they would not be authorized to convict the defendant unless they were satisfied of his guilt beyond a reasonable doubt, and this latter instruction was repeated several times.' Helms v. State, 138 Ga. 826, 833, 76 S.E. 353; Harper v. State, 201 Ga 10, 18, 39 S.E.2d 45. There is no merit in this enumeration of error.

(b) Enumeration of error Number 15 complains that the trial court instructed the jury in the hearing on the special plea of insanity that preponderance of the evidence meant that superior weight of evidence on the issues involved 'which while not enough to wholly free the mind from a reasonable doubt' is erroneous because there is no requirement of law as to 'reasonable doubt' in connection with a preponderance of the evidence.

'(T)he burden rests on the accused, under the presumption of sanity, 'to show by a preponderance of evidence, but not beyond a reasonable doubt, that at such time he was mentally irresponsible, under the tests recognized in this State.' Rozier v. State, 185 Ga. 317, 319, 195 S.E. 172.' Hubbard v. State, 197 Ga. 77(2), 28 S.E.2d 115, and citations. There is no merit in this enumeration of error.

2. Enumeration of error Number 6 complains of several remarks made by the trial judge to the defendant when he was making his unsworn statement to the jury. The appellant contends that the remarks were 'an intimation that the evidence showed defendant's guilt of some action, an expression of the opinion on the evidence, and an instruction in violation of the defendant's constitutional privilege against self-incrimination.'

No motion for a mistrial or other objections were made to the statements of the trial judge. 'A party cannot during the trial ignore what he thinks to be an injustice, take his chance on a favorable verdict, and complain later.' Joyner v. State, 208 Ga. 435(2), 67 S.E.2d 221; Sides v. State, 213 Ga. 482, 99 S.E.2d 884; Williamson v. State, 217 Ga. 162(1), 121 S.E.2d 782; Collier v. State, 223 Ga. 867, 159 S.E.2d 73; Abrams v. State, 223 Ga. 216(9), 154 S.E.2d 443. This enumeration of error presents nothing for review by this court.

3. Enumeration of error Number 11 complains of a re-charge by the trial judge to the jury. The record shows that the jury was returned to the jury box the day after they began their deliberations. On inquiry by the court, the foreman of the jury stated that they had progressed to the point of determining the sentence. The foreman stated that they stood 10 to 2 and had stood that way since the afternoon before. The court stated: 'Well, I don't want anybody to give up their honest convictions in this case, but it occurs (to me that) somebody is being a little unreasonable, stubborn. I don't see how any jurors-as intelligent as any juors we could get-and it's a very expensive operation to hold these trials for a week at a time and the jury ought to be able to reach a conclusion based on the evidence and by a preponderance of the evidence. I mean on the evidence from the standpoint of a reasonable doubt. If there is a reasonable doubt you ought to acquit him. If there isn't a reasonable doubt, you ought to convict him. I'm going to let you go back and continue your deliberations. We're not going to declare a mistrial at this stage.' A motion for mistrial was made on the basis of the remark by the court that some of the jurors were "being unreasonable, stubborn.' I feel this was prejudicial and might bring undue duress to their minds and cause them to be influence by His Honor's remarks instead of the evidence.'

The court is of the opinion that the portion of the charge complained of was error and demands the grant of a new trial. The trial judge should not in any case coerce the jury to find a verdict. He should not employ such expressions as injuriously affect the defense of the accused in a criminal case, especially if the case is a capital one, where the rule of reasonable doubt and the right of the jury to recommend mercy are involved. Golatt v. State, 130 Ga. 18(3), 60 S.E. 107. The jury should be free to act and free from any seeming or real coercion on the part of the court. White v. Fulton, 68 Ga. 511. Before the jury was authorized to convict the defendant in this case, each juror, and not a mere majority of them, had to believe and be convinced in his own mind that the defendant was guilty beyond a reasonable doubt. The verdict that a jury renders, whether it be guilty or not guilty, must represent the unanimous conviction of all the members of the jury. The re-charge to the jury here intimated that one or more members of the jury should surrender his or their conviction rather than...