Syfrett v. State, A93A1568

• Decision Date: 20 August 1993
• Docket Number: No. A93A1568,A93A1568
• Citation: 210 Ga.App. 185,435 S.E.2d 470
• Parties: SYFRETT v. The STATE.
• Court: Georgia Court of Appeals

Page 470

435 S.E.2d 470

210 Ga.App. 185

SYFRETT v. The STATE.

No. A93A1568.

Court of Appeals of Georgia.

Aug. 20, 1993.

Reconsideration Denied Sept. 8, 1993.

Certiorari Denied Dec. 3, 1993.

John C. Swearingen, Jr., Columbus, for appellant.

Douglas C. Pullen, Dist. Atty., Bradford R. Pierce, Asst. Dist. Atty., for appellee.

McMURRAY, Presiding Judge.

Defendant Syfrett appeals his conviction of aggravated battery. Held:

1. Defendant's first five enumerations of error question the sufficiency of the evidence to authorize his conviction. Viewed in the light most favorable to upholding the judgment of the trial court, the evidence was that defendant and a companion (who was a co-defendant acquitted of a charge of aiding and abetting defendant in the commission of the aggravated battery) arrived uninvited at the victim's house and began arguing with his guests. When the victim asked defendant and his companion to leave, defendant "slung a can of beer across the room ..." and started "manhandling" the victim. The defendant began hitting the victim, who ended up on the floor with defendant holding him down and continuing to hit him. Defendant withdrew outside to his truck. The victim armed himself with an unloaded shotgun which he held by the barrel like a baseball bat. Defendant then took the shotgun away from the victim and began hitting him with it until he was unconscious. Physicians testified as to the multiple fractures the victim suffered and as to the lasting, disfiguring effect of the injuries.

Defendant relied on a defense of self-defense. The burden was on the State to prove that defendant did not act in self-defense. Shackleford v. State, 198 Ga.App. 768 (1), 403 S.E.2d 74. "A person is justified in threatening or using force against another when and to the extent that he reasonably believes that such threat or force is necessary to defend himself or a third person against such other's imminent use of unlawful force; however, a person is justified in using force which is intended or likely to cause death or great bodily harm only if he reasonably believes that such force is necessary to prevent death or great bodily injury to himself...." OCGA § 16-3-21(a). The evidence presented in the case sub judice was sufficient to prove defendant did not act in self-defense and to authorize the jury to find defendant guilty beyond a reasonable doubt of the offense of aggravated battery. Jackson v. Virginia, 443 U.S. 307, 99 S.Ct. 2781, 61 L.Ed.2d 560; Parham v. State, 204 Ga.App. 659, 420 S.E.2d 356.

2. There was no error in permitting a nine-year-old witness to the crime to testify without first determining whether she understood the nature of an oath. OCGA § 24-9-5(b); Sizemore v. State, 262 Ga. 214, 217, 416 S.E.2d 500.

3. Next, defendant contends that the trial court erred in admitting evidence as to a statement made by defendant after he had been taken into custody but prior to any Miranda (v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694) warnings. The incident in question occurred when defendant was being transported from his attorney's office, where he had surrendered himself into custody, to jail. The police detective who arrested defendant testified that he did not question or interrogate defendant concerning the alleged crime but asked his name, address, and similar things for booking information, and informed him of the charges against him. Defendant then proceeded to discuss the circumstances surrounding the offense at issue.

"[T]he necessity of administering Miranda warnings exists only when the individual is interrogated while in custody." Ramos v. State, 198 Ga.App. 65, 66 (2), 400 S.E.2d 353. Miranda warnings are not a prerequisite to the admission of evidence concerning voluntary statements not made in response to any form of custodial questioning or interrogation. McClendon v. State, 201 Ga.App. 262, 264 (1b), 410 S.E.2d 760. " 'The term interrogation under Miranda refers not only to express questioning, but also to any words or actions on the part of the police (other than those normally attendant to arrest and custody) that the police should know are reasonably likely to elicit an incriminating response from the suspect. The latter portion of this definition focuses primarily upon the perceptions of the suspect, rather than the intent of the police. This focus reflects the fact that the Miranda safeguards were designed to vest a suspect in custody with an added measure of protection against coercive police practices, without regard to objective proof of the underlying intent of the police. A practice that the police should know is reasonably likely to evoke an incriminating response from a suspect thus amounts to interrogation. But, since the police surely cannot be held accountable for the unforeseeable results of their words or actions, the definition of interrogation can extend only to words or actions on the part of police officers that they should have known were reasonably likely to elicit an incriminating response.' (Citation and punctuation omitted. Emphasis in original.) Hibbert v. State, [195 Ga.App. 235, 236, 393 S.E.2d 96]." Cottingham v. State, 206 Ga.App. 197, 200 (4), 424 S.E.2d 794. In the present case, it does not appear as a matter of law from the evidence that the detective knew or should have known that his interaction with defendant was reasonably likely to elicit an incriminating response from defendant. This was a question of fact to be resolved by the trial court, and under the circumstances in this case, we find no abuse of discretion in the trial court's conclusion that no interrogation occurred. Turner v. State, 199 Ga.App. 836, 838 (3), 406 S.E.2d 512.

4. The trial court did not err in refusing to permit defendant to impeach the victim by showing his convictions for simple battery and three offenses of driving under the influence. " 'A witness may be impeached by showing conviction of a crime involving moral turpitude. (Cit.) The fact of conviction must be shown by record evidence and not by testimony. (Cit.)' Johnson v. State, 144 Ga.App. 406 (1), 240 S.E.2d 919 (1977). '(E)ven competent proof of an offense not involving moral turpitude, or incompetent proof of an offense involving moral turpitude, such as a mere indictment or a charge or an arrest or a trial and acquittal, are not legal methods of impeachment. (Cits.)' Whitley v. State, 188 Ga. 177, 179 (5), 3 S.E.2d 588 (1939). Accord Strickland v. State, 166 Ga.App. 702, 305 S.E.2d 434 (1983).

'Our Supreme Court has declared that crimes involving moral turpitude are "restricted to the gravest offenses, consisting of felonies, infamous crimes, and those that are malum in se and disclose a depraved mind. (Cit.)" (Cits.)' Seaboard Coast Line R. Co. v. West, 155 Ga.App. 391, 393, 271 S.E.2d 36 (1980). Accord Hall v. Hall, 261 Ga. 188, 402 S.E.2d 726 (1991) (holding that DUI is not such an offense).... [Also,] this court has previously held that such offenses as simple battery, see Jabaley v. Mitchell, 201 Ga.App. 477, 411 S.E.2d 545 (1991), and 'fighting,' see Curry v. State, 17 Ga.App. 312 (1), 86 S.E. 742 (1915), are not crimes involving moral turpitude." Polk v. State, 202 Ga.App. 738, 739 (2), 415 S.E.2d 506.

5. Relying upon Chandler v. State, 261 Ga. 402, 405 S.E.2d 669, defendant complains that the trial court refused to allow defendant to introduce evidence of certain acts of violence committed by the victim against third persons. The rule announced in Chandler represented a substantial change from the pre-existing law and the Supreme Court was concerned that "permitting a defendant to introduce evidence of specific acts of violence by the victim without advance notice to the state would result in unfairness to the state," and directed that "a defendant claiming justification and seeking to introduce evidence of specific acts of violence by the victim against third persons will notify the trial court of such intention prior to trial. The trial court will take reasonable steps to assure that the state has reasonable notice of such intention and of the nature of such evidence." Chandler at 408, 405 S.E.2d 669.

In the case sub judice, defendant had surrendered to authorities more than a year prior to the trial date. Nonetheless, defendant's notice of intent to introduce evidence of specific acts of violence by the victim against third persons was not filed or delivered to the State until late on the afternoon of the Thursday preceding the Monday trial date. An amended notice was delivered during trial. The trial court was not informed of the notice until immediately prior to trial. The prosecuting attorney objected to the introduction of evidence as to the incidents listed in the notice and related his efforts to investigate the incidents. The prosecuting attorney complained that lack of time and the indefinite nature of the original notice had prevented any significant investigation into most of the incidents listed. The original notice provided by defendant listed nine incidents but did not provide the dates of the incidents, or as to some, location or identities of the third parties to whom the specific acts of violence were directed.

We trust that appropriate procedures for the application of the Chandler decision will soon be incorporated, as anticipated by the Supreme Court, into the Uniform Superior Court Rules in order to lend some certainty and efficiency to this process. In the meanwhile, although some guidance may be derived from the analogous provisions of Uniform Superior Court Rule (USCR) 31.3, we must address these issues on a case-by-case basis. While it is true that the victim in the case sub judice, unlike the victim in Chandler, was alive and able to communicate, and the prosecuting attorney was able to interview defendant's witnesses on this issue during a recess during the trial, the prosecuting attorney was still entitled to some reasonable period of time to...