Wells v. State

• Decision Date: 23 June 1981
• Docket Number: No. 37259,37259
• Citation: 247 Ga. 792,279 S.E.2d 213
• Parties: WELLS v. The STATE.
• Court: Georgia Supreme Court

Page 213

279 S.E.2d 213

247 Ga. 792

WELLS v. The STATE.

No. 37259.

Supreme Court of Georgia.

June 23, 1981.

B. H. Barton, Augusta, for Todd Allen Wells.

Sam B. Sibley, Jr., Dist. Atty., William H. Lumpkin, Asst. Dist. Atty., Augusta, Arthur K. Bolton, Atty. Gen., Charles E. Brown, Staff Asst. Atty. Gen., for the State.

SMITH, Justice.

Appellant was convicted of murder and sentenced to life imprisonment. He raises four enumerations of error, and we affirm.

On the evening of November 2, 1979, Robert Reeves drove up to a Majik Market convenience store in his van. He was looking for someone who could purchase a pound of marijuana for him. A friend named Mike Glover informed Reeves that he might be able to locate someone who could do so. Glover then introduced Reeves to appellant, who was also at the Majik Market. After discussing the matter with Reeves, appellant had a separate conversation with Glover. He asked Glover if he wanted to "go off with him and rob" Reeves. Glover refused.

Appellant and Reeves left the Majik Market in Reeves' van. ¹ While driving around Augusta, they drank several beers and smoked marijuana. ² During their time together, appellant made several phone calls, ostensibly to locate a pound of marijuana. ³ Reeves apparently got angry over appellant's lack of success. According to appellant, Reeves taunted him throughout the evening and accused him of coming along solely to get a "free high."

In the course of the journey, appellant became ill. On several occasions, appellant had to get out of the van in order to vomit. The last time this occurred, appellant, who was standing at the passenger door of the van, shot Reeves three times with a .22 caliber pistol. Reeves, who was sitting in the driver's seat, was hit once in front of the right shoulder, once behind the shoulder and once in the right portion of the back. Reeves died within an hour from bleeding in the chest cavity caused by the second and third bullets.

After the shooting appellant fled. He spent the night with a friend. The next morning, he traveled to Atlanta by bus. He was arrested a few days later. Following his arrest, appellant led police investigators to the location of the .22 caliber pistol, which was hidden in an area behind the Majik Market. Expert testimony established that the bullets which killed Reeves came from this gun.

Appellant does not raise the general grounds. The evidence adduced at trial clearly authorized a rational trier of fact to find appellant guilty of murder. Jackson v. Virginia, 443 U.S. 307, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979).

1. In his first enumeration of error, appellant contends the trial court erred in refusing his written request to charge on delusional compulsion. Code Ann. § 26-703 provides: "A person shall not be found guilty of a crime when at the time of the act ..., such person, because of mental disease, injury, or congenital deficiency, acted as he did because of a delusional compulsion as to such act which overmastered his will to resist committing the crime."

Appellant bases his argument on his testimony regarding the drugs he had taken prior to the shooting and on expert testimony to the effect that PCP could have caused appellant to become psychotic and suffer a delusion regarding the victim's conduct.

We find no error in the trial court's failure to charge on delusional compulsion. "(I)n Graham v. State, 236 Ga. 378, 379(I), 223 S.E.2d 803 (1976), this court stated that '(i)n order for the defense of delusional compulsion to be available in a trial for murder there must be evidence that the defendant was laboring under a delusion ...' In the present case, although there was testimony that the defendant (had ingested PCP and that this drug could cause delusions) there was no evidence that this defendant was under a delusion ..." Taylor v. State, 243 Ga. 222, 227, 253 S.E.2d 191 (1979). Moreover, even if there were such evidence, the delusional compulsion defense was nonetheless unavailable. We quote from the charge in Choice v. State, 31 Ga. 424, 454-455 (1860): "(T)hough it is the general rule that insanity is ordinarily an excuse, yet there is an exception to this rule, and that is, when the crime is committed by a party in a fit of intoxication ... A voluntary contracted madness is no excuse for crime." Taylor v. State, supra; Strickland v. State, 137 Ga. 115(1), 72 S.E.2d 922 (1911). Accord Commonwealth v. Hicks, 483 Pa. 305, 396 A.2d 1183 (1978); State v. Toth, 52 Ohio St.2d 206, 371 N.E.2d 831 (1977); State v. Harden, 206 Kan. 365, 480 P.2d 53 (1971); State v. Booth, 169 N.W.2d 869 (Iowa 1969).

2. In his second and third enumerations of error, appellant challenges the following two instructions on the ground that they violate the U.S. Supreme Court's ruling in Sandstrom v. Montana, 442 U.S. 510, 99 S.Ct. 2450, 61 L.Ed.2d 39 (1979): "I charge you that when there is direct evidence to show an intentional killing by the defendant the law presumes the homicide to be malicious, unless the contrary appears from the circumstances of alleviation, excuse, or justification ... If the state proves that the defendant killed the person named in the indictment in this county by the use of a deadly weapon in a manner likely to produce death, then the killing is presumed to be intentional and malicious, unless circumstances of alleviation, excuse, accident, or justification appear to your satisfaction from the evidence."

The U. S. Supreme Court and this court have consistently recognized that "a single instruction to a jury may not be judged in artificial isolation, but must be viewed in the context of the overall charge." Cupp v. Naughten, 414 U.S. 141, 147, 94 S.Ct. 396, 400, 38 L.Ed.2d 368 (1973); Lackey v. State, 246 Ga. 331, 339, 271 S.E.2d 478 (1980). With this principle in mind, we shall repeat the above charges in the immediate context in which they were given: "Now, I charge you, Members of the Jury, that malice is an essential element of the offense of murder and the burden is on the State to show malice beyond a reasonable doubt. I charge you that when there is direct evidence to show an intentional killing by the defendant the law presumes the homicide to be malicious, unless the contrary appears from the circumstances of alleviation, excuse, or justification. If the State proves that the defendant killed the person named in the indictment in this county by the use of a deadly weapon in a manner likely to produce death, then the killing is presumed to be intentional and malicious, unless circumstances of alleviation, excuse, accident, or justification appear to your satisfaction from the evidence. Whether the defendant killed the deceased and, if he did, whether such killing was intentional and malicious are matters for you to determine from all the facts and circumstances, remembering that the burden of proving guilt beyond a reasonable doubt is always on the State."

Elsewhere in the charge, the court instructed the jury that appellant was presumed innocent; that the burden was on the state to prove every allegation beyond a reasonable doubt; that the jury may find intent or its absence; and that before they could find appellant guilty of murder, they must find and believe beyond a reasonable doubt that the defendant did with malice, either express or implied, cause the victim's death.

While this court has expressly disapproved of criminal jury instructions "cast in terms of 'The law presumes' " (Hosch v. State, 246 Ga. 417, 420, 271 S.E.2d 817 (1980)), the use of such terminology does not automatically lead to reversal. Id. at 420, 271 S.E.2d 817; Lackey v. State, supra. Rather, the entire charge must be examined to determine whether a reasonable juror could interpret the charge as 1) creating a conclusive presumption or 2) burden shifting.

The charges at issue here are, by their own terms, nonconclusive; appellant does not argue otherwise. Appellant does contend, however, that the charges could be seen by a reasonable juror as "shifting the burden of persuasion to the defendant." We cannot agree.

The "presumptions" regarding malice and use of a deadly weapon are limited by the language "unless the contrary appears" and "unless circumstances of alleviation, excuse, accident, or justification appear to your satisfaction from the evidence." ⁴ Nowhere in the charge is a burden expressly placed on the defendant to disprove an element of the offense. Compare Tyler v. Phelps, 622 F.2d 172 (5th Cir. 1980); Holloway v. McElroy, 474 F.Supp. 1363 (M.D.Ga.1979). Nor do we believe such a burden can fairly be implied from the assertedly objectionable portion of the charge when viewed in context. See Hosch v. State, supra, 246 Ga. at 419-420, 271 S.E.2d 817; Patrick v. State, 245 Ga. 417, 423-424, 265 S.E.2d 553 (1980). "The only burden which the trial court expressly placed on either of the parties was the burden placed upon the state to prove ...