Trenor v. State, 71558

• Decision Date: 19 March 1986
• Docket Number: No. 71558,71558
• Citation: 178 Ga.App. 351,343 S.E.2d 408
• Parties: TRENOR v. The STATE.
• Court: Georgia Court of Appeals

Page 408

343 S.E.2d 408

178 Ga.App. 351

TRENOR v. The STATE.

No. 71558.

Court of Appeals of Georgia.

March 19, 1986.

James W. Maher, Marietta, for appellant.

Thomas J. Charron, Dist. Atty., Nicolette Templer, Nancy I. Jordan, Asst. Dist. Attys., for appellee.

BEASLEY, Judge.

Trenor was convicted of voluntary manslaughter. OCGA § 16-5-2. (At the time of the incident, it was Ga.Code Ann. § 26-1102). ¹

1. Trenor asserts the general grounds, recognizing that the evidence must be viewed in favor of the verdict. Laws v. State, 153 Ga.App. 166, 167(1), 264 S.E.2d 700 (1980). He attempts to show that the evidence did not support the verdict but rather supported his theory of self-defense, even if based on a "mistake" or misapprehension of fact.

"[W]e can only review the evidence to determine if there is any evidence to support the verdict." Thomas v. State, 175 Ga.App. 873(1), 334 S.E.2d 903 (1985). The evidence was that Trenor went fishing with Bryan Smith, Stephen Holder, Emma Myers and Kay Hill, and that during the course of the day, the group consumed a sizable quantity of alcohol and purchased more on the way back to Trenor's trailer. Once at the trailer, Trenor brought his pistol and a clip of bullets inside. The men started playing poker and drinking. During the evening, Stephen Holder contacted his brother Phillip and asked him to come to the trailer to provide transportation for himself and Bryan Smith. When the brother arrived, the three men were still playing poker and the two women were talking. The women were sent to get more alcoholic beverages and when they returned, Smith became argumentative about the change he received. Throughout the day, Trenor, Bryan Smith, and Stephen Holder had argued for various reasons and at one point in the evening engaged in a contest to see who could switch or flip open his knife the fastest. Trenor asked Smith to leave his trailer on a couple of occasions. At times, Smith would start to leave and then come back. At one point, Trenor thought that Smith was going to stick him with a knife.

As Smith eventually left the trailer, he stated to Trenor, " 'You better unload it.' " Trenor had picked up his loaded pistol from the top of the stove, steadied it with both hands, and pointed it at Smith as he walked out the door. Smith reappeared and stood in the doorway with both hands in his pants' pockets. After holding the gun for approximately eight to ten seconds, Trenor shot Smith in the chest, the bullet perforating both lungs and the heart. Trenor then hid the gun in a garbage can outside the trailer.

" 'When a homicide is neither justifiable nor malicious, it is manslaughter, and if intentional, it is voluntary manslaughter.' [Cit.] ... The distinguishing characteristic between voluntary manslaughter and justifiable homicide is that the accused was so influenced and excited that he reacted passionately rather than simply to defend himself. [Cit.] Circumstances necessary to show voluntary manslaughter, as opposed to justifiable homicide, relate to a situation which arouses sudden passion in the person killing so that, rather than defending himself, he wilfully kills the attacker, albeit without malice aforethought, when it was not necessary for him to do so in order to protect himself. [Cits.] ... The fear of some danger can be sufficient provocation to excite the passion necessary for voluntary manslaughter. [Cit.]" Syms v. State, 175 Ga.App. 179, 180(1), 332 S.E.2d 689 (1985).

Trenor claimed the shooting was in self-defense, even if under the mistaken notion ("misapprehension of fact") that the victim was advancing with the intention of doing great bodily injury to him. ²

The evidence here was in dispute as to whether Trenor shot Smith with malice aforethought (since he was charged with murder), out of passion, or out of justification in self-defense. The resolution of this question depended heavily on the credibility of the witnesses, including Trenor. Decisions regarding credibility are exclusively for the jury. OCGA § 24-9-80; Burnette v. State, 165 Ga.App. 768, 769(2), 302 S.E.2d 621 (1983). A rational trier of fact was authorized to find the elements of voluntary manslaughter beyond a reasonable doubt. Syms, supra; Jackson v. Virginia, 443 U.S. 307, 319, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979).

Appellant also complains of three jury charges.

2. The court charged "that voluntary intoxication is not an excuse for any criminal act or omission." The reason this was error, Trenor urges, is that he did not introduce any evidence of his intoxication, that it would negate his defense of justification due to self-defense, that it shifted the burden of proof to him to prove his sobriety, and that it was thus prejudicial and harmful.

There was ample evidence that Trenor, as well as other members of the fishing party, had consumed quantities of alcohol, mainly beer, during the afternoon and evening up to the time of the shooting. In addition, when the arresting officer arrived on the scene, he could smell alcohol on Trenor's breath. Several of the witnesses to the shooting testified about the day's alcohol consumption. Trenor testified on direct: "Counsel: Had you ever drunk any peppermint schnapps before? Trenor: That was the first time. Counsel: That was your first time? Trenor: First and last. Counsel: Did you then drink much of the schnapps that night? Trenor: No, sir, I didn't. I steadily drank beer after that. I am a beer drinker, you know. That's basically what I drink, is beer."

"The instructions of the court in a criminal trial should be tailored to the indictment and adjusted to the evidence admitted in court ... Any instruction should stand upon a base founded in the evidence or the lack thereof." Crosby v. State, 150 Ga.App. 555, 557(2), 258 S.E.2d 264 (1979).

Since there was evidence of voluntary intoxication as part of the whole picture of what occurred leading up to the shooting, the court was correct in advising the jury how the law considers such a factor. That is, if the jury believed defendant was voluntarily intoxicated when the act with which he was charged occurred, it would be pertinent for the jury to know that this would not affect defendant's criminal responsibility. Even though Trenor was not claiming that it would, and was not attempting to use that as a defense and in fact was insisting that he was sober, the instruction was proper. Its relevancy is not limited to situations where defendant is seeking to use intoxication as an excuse for his behavior. According to the evidence, alcohol consumption had accompanied the activities of the day, and should the jury have considered the impact of its usage on Trenor and his criminal responsibility, they would need to know what the law on the matter was.

We reject Trenor's contention that the charge was impermissibly burden-shifting. We do not perceive that it shifted the burden of proving guilt beyond a reasonable doubt. It simply advised the jury of the law's view of the effect of the fact of voluntary intoxication on a person's criminal responsibility, that is, that it has no effect. As to burden-shifting considerations, see Sandstrom v. Montana, 442 U.S. 510, 99 S.Ct. 2450, 61 L.Ed.2d 39 (1979), and Francis v. Franklin, 471 U.S. 307, 105 S.Ct. 1965, 85 L.Ed.2d 344 (1985).

3. The court charged that "premeditation is not a specific element of malice murder in the State of Georgia." Trenor...