Trenor v. State

• Decision Date: 07 March 1984
• Docket Number: No. 40385,40385
• Citation: 313 S.E.2d 482,252 Ga. 264
• Parties: TRENOR v. The STATE.
• Court: Georgia Supreme Court

Page 482

313 S.E.2d 482

252 Ga. 264

TRENOR v. The STATE.

No. 40385.

Supreme Court of Georgia.

March 7, 1984.

Silvia .M. Landress, Marietta, for Morris Wayne Trenor.

Thomas J. Charron, Dist. Atty., Charles C. Debra Halpern Bernes, Clay, Asst. Dist. Attys., Michael J. Bowers, Atty. Gen., Marietta, Paula K. Smith, Staff Asst. Atty. Gen., for the State.

SMITH, Justice.

Appellant Morris Wayne Trenor shot and killed Bryan Smith with a pistol on the evening of April 2, 1982. The two were acquaintances and had spent the day with friends (who witnessed the shooting) fishing, drinking, playing poker and intermittently quarreling. Late in the evening the group gathered at Trenor's mobile home in Cobb County. The quarreling intensified and Trenor and Smith disagreed over whether and when Smith would leave. As Smith stood in the doorway, he faced Trenor and verbally challenged him one last time. Trenor picked up a pistol lying nearby and shot Smith once in the chest. Trenor was convicted of murder and now appeals, his principal enumerations being that the trial judge failed to properly charge on malice and intent. We reverse. ¹

1. In his first three enumerations the appellant asserts the general grounds. Construing the evidence in a light most favorable to the jury's verdict, we conclude that a rational trier of fact could have found the appellant guilty of murder beyond a reasonable doubt. Jackson v. Virginia, 443 U.S. 307, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979).

2. In his fourth enumeration, appellant contends that the court erred in instructing the jury that malice shall be implied where no considerable provocation appears and where all the circumstances of the killing show an abandoned and malignant heart, without immediately explaining that this presumption was rebuttable or that malice shall be implied only where the jury has found no considerable provocation.

This charge tracks the language of OCGA § 16-5-1(b) Code Ann. § 26-1101, and similar charges based on this statute have been upheld. See Hosch v. State, 246 Ga. 417(5), 271 S.E.2d 817 (1980). Moreover, appellant did not except to this charge at trial when asked by the court for objections nor did he reserve his right to do so. Jackson v. State, 246 Ga. 459, 271 S.E.2d 855 (1980).

3. In his fifth enumeration, appellant contends that the court erred in charging the jury that, "If you find that a homicide is proved to have been committed in this case by the defendant, and with a weapon that you find was, in the manner in which it was used upon the occasion in question, a weapon likely to produce death, the law would presume malice and the intent to kill." Appellant argues that since this instruction was given without also explaining that it could be rebutted he was unfairly burdened according to the standards of Sandstrom v. Montana, 442 U.S. 510, 99 S.Ct. 2450, 61 L.Ed.2d 39 (1979), to prove lack of intent. We agree.

We have previously stated our disapproval, which continues, of the phrase "the law presumes" or, as is the case here, "the law would presume," in the deadly weapon charge. We have approved instead a charge authorizing the jury to "infer the intent to kill" from the intentional and unjustified use of a deadly weapon. Hosch v. State, supra, at 420, 271 S.E.2d 817. See also Williamson v. State, 248 Ga. 47(2), 281 S.E.2d 512 (1981). Nevertheless, in considering a possible violation of Sandstrom we will look beyond the phrase "the law presumes," to the context of the entire charge and the construction a reasonable juror might have placed on the disputed portion of the charge. Wilson v. Jones, 251 Ga. 23, 302 S.E.2d 546 (1983).

In the present case the court charged properly on the presumption of innocence, the burden of the state to prove each essential element of the crime beyond a reasonable doubt, and that a person is not presumed to act with criminal intention but the trier of fact may find such intention upon consideration of the words, conduct, demeanor, motive, and all other circumstances connected with the act for which the accused is prosecuted. Nowhere, however, is the jury informed that the presumption of intent may be rebutted. The jury was left with the instruction that intent was to be presumed if it found a homicide to have been committed by Trenor with a weapon used in a manner likely to cause death. This instruction in the present context could have been construed by a reasonable jury as a mandatory presumption, which unfairly shifts the burden of persuasion to the defendant. See Sandstrom v. Montana, supra, at 515, 99 S.Ct. at 2454. Such an instruction is error where, as here, the court fails to enlighten the jury as to the nature of the burden thereupon borne by the defendant to rebut the presumption of intent to kill. Franklin v. Francis, 720 F.2d 1206 (11th Cir.1983), motion for rehearing denied, 723 F.2d 770 (11th Cir.1984).

Given that the challenged jury charge was erroneous, the question remains whether it was also harmful. Trenor admitted that he fired his gun at the victim. He contended however, that in doing so he did not intend to kill. Our review shows that the facts did not overwhelmingly preclude that defense. Cf., Lamb v. Jernigan, 683 F.2d 1332 (11th Cir.1983), cert. denied, 460 U.S. 1024, 103 S.Ct. 1276, 75 L.Ed.2d 496 (1983). A presumption that he intended to kill completely eliminated Trenor's defense of lack of intent. Therefore, the error complained of in this enumeration was harmful and constitutes ground for reversal of Trenor's conviction of the crime of malice murder.

4. In his sixth enumeration appellant contends the court erred in repeating to the jury upon their request the charge discussed in section (2) of this opinion, supra. He contends that the previous error complained of was compounded by the recharge. For the reasons stated above in section (2), there is no merit in this enumeration.

5. In his next enumeration appellant contends that it was error to fail to aid his attorney in awakening a juror who fell asleep during defense counsel's closing argument. Counsel saw that the juror was asleep and was unable to wake her by moving toward her and speaking louder as the argument continued. Appellant now submits that the effect was to deny him a fair trial.

The record does not...