Opinion
75320.
DECIDED JANUARY 26, 1988. REHEARING DENIED FEBRUARY 12, 1988.
Voluntary manslaughter. Chatham Superior Court. Before Judge Cheatham.
John R. Calhoun, for appellant.
Spencer Lawton, Jr., District Attorney, J. Clayton Culp, Assistant District Attorney, for appellee.
James A. Mattox was indicted for murder but convicted of voluntary manslaughter in the shooting death of his wife. Defendant enumerates fourteen errors, none of which have merit.
1. Construed most strongly in favor of the verdict, the evidence of record is such that any rational trier of fact could have found defendant guilty of voluntary manslaughter beyond a reasonable doubt. See Thomas v. State, 141 Ga. App. 192 ( 233 S.E.2d 41) (1977); Nolen v. State, 124 Ga. App. 593 ( 184 S.E.2d 674) (1971); see also May v. State, 146 Ga. App. 416 (3) ( 246 S.E.2d 432) (1978). The trial court did not err in denying defendant's motion for directed verdict. Holt v. State, 157 Ga. App. 405 (1) ( 278 S.E.2d 59) (1981).
2. The trial court gave the following charge on the law relating to incriminatory statements: "A confession is direct evidence, but an incriminatory statement is indirect or circumstantial evidence and it must exclude every other reasonable theory except that of the guilt of the accused. If you find that the defendant made an incriminatory statement with reference to any of his acts or conduct, the Court instructs you that an incriminatory statement, applied to a criminal statement, is one made by a defendant of a fact or facts pertinent to the issue or tending, in connection with other facts and circumstances, to prove the guilt of the accused or to disprove some defense set up by the accused. An incriminatory statement will not of itself authorize a conviction and before you would be authorized to convict, there must be other proven facts and circumstances which satisfy your mind beyond a reasonable doubt of the guilt of the accused. All incriminatory statements must be scanned with great caution. They must also have been freely and voluntarily made without the slightest hope of benefit or the remotest fear of injury and if not thus made, they cannot be considered. I charge you further that if the defendant made an incriminatory statement, but such statement was accompanied by explanations or declarations which showed excuse, justification or mitigation tending to justify his acts or conduct, then no presumption of the defendant's guilt would arise." Defendant contends that the last sentence of the foregoing charge is unconstitutionally burden-shifting. That is, although this charge is termed in the negative, a reasonable juror could infer that the reverse of the charge is true, viz., that in the absence of an explanation by defendant showing excuse, justification or mitigation, a presumption of guilt would arise.
We find the language complained of, when considered in isolation, could potentially be construed as burden-shifting and, thus, disapprove of its use. See, e.g., Noggle v. State, 256 Ga. App. 383[ 256 Ga. 383] (4) ( 349 S.E.2d 175) (1986). "`If a specific portion of the jury charge, considered in isolation, could reasonably have been understood as creating a presumption that relieves the State of its burden of persuasion on an element of an offense, the potentially offending words must be considered in the context of the charge as a whole. Other instructions might explain the particular infirm language to the extent that a reasonable juror could not have considered the charge to have created an unconstitutional presumption. (Cit.) This analysis "requires careful attention to the words actually spoken to the jury .... , for whether a defendant has been accorded his constitutional rights depends upon the way in which a reasonable juror could have interpreted the instruction." Sandstrom [v. Montana, 442 U.S. 510, 514 (99 SC 2450, 61 L.Ed.2d 39) (1979).]'" Melton v. State, 175 Ga. App. 472, 474 ( 333 S.E.2d 682) (1985), quoting Francis v. Franklin, 471 U.S. 307, 315 ( 105 SC 1965, 85 L.Ed.2d 344) (1985); see also Flannigan v. State, 139 Ga. App. 590 (1) ( 229 S.E.2d 98) (1976).
Substituting the term "inference" in lieu of the term "presumption" would appear to cure this infirmity. See Wilson v. Jones, 251 Ga. 23 ( 302 S.E.2d 546) (1983).
Assuming arguendo that a reasonable juror could potentially have interpreted the subject language as creating an unconstitutional presumption, we find no prejudice to defendant's substantial rights under the circumstances in this case. The trial court thoroughly and correctly charged the jury as to the burden of proof in a criminal case. More importantly, however, the record evidence shows without dispute that defendant's incriminatory statement was accompanied by an explanation excusing culpability, viz., that the shooting was accidental. Therefore, we find no basis for a reasonable juror in this case to have interpreted the questioned charge as creating an unconstitutional presumption. It is clear to us beyond a reasonable doubt that any error in this regard did not contribute to the verdict of guilty and thus was harmless. See Lewis v. State, 180 Ga. App. 890 (2) ( 351 S.E.2d 100) (1986); Rose v. Clark, 478 U.S. 570 (106 SC 3101, 92 L.Ed.2d 460) (1986); see also Williams v. Kemp, 255 Ga. 380 ( 338 S.E.2d 669), cert. den., 92 L.Ed.2d 744 (1986).
3. Under the circumstances in this case, we find no error in the trial court's ruling that defendant voluntarily consented to the warrantless search of his residence. See Dean v. State, 250 Ga. 77 (2a) ( 295 S.E.2d 306) (1982).
4. Defendant's unsupported assertion that he "believes" that the State's case file contains certain exculpatory information "which would have been helpful to him in his defense and which was not furnished to him during the course of the trial" provides no basis for reversal of his conviction. See, e. g., Wallin v. State, 248 Ga. 29 (6) ( 279 S.E.2d 687) (1981); Baker v. State, 245 Ga. 657 (3) ( 266 S.E.2d 477) (1980); see also Barnes v. State, 157 Ga. App. 582 (2) ( 277 S.E.2d 916) (1981).
5. We find it highly probable that, in light of the charge as a whole, the trial court's incidental use of the word "confession" in its jury instructions relating to incriminatory statements (see Division 2, supra) did not contribute to the verdict in this case. E.g., Richards v. State, 251 Ga. 447 (1) ( 306 S.E.2d 302) (1983); Golden v. State, 250 Ga. 428 (4) ( 297 S.E.2d 479) (1982), cert. den., 460 U.S. 1046 (1983).
6. We find no error in the trial court's striking, sua sponte, a question by defense counsel to defendant's daughter, and her answer thereto, concerning her opinion as to defendant's intent in shooting the victim. See Boyce v. State, 184 Ga. App. 578 (3) ( 362 S.E.2d 229) (1987).
7. Defendant's remaining enumerations of error are either not supported by proper objection or not supported by the record on appeal and thus provide no basis for reversal.
Judgment affirmed. Birdsong, C. J., and Deen, P. J., concur.