MILTON v. THE STATE., 245 Ga. 20, 262 S.E.2.d 789 (1979)

Supreme Court of Georgia

Status: ARGUED

Docket Number: 35477

Parts: NICHOLS, Chief Justice.

Linked as:

Summary

Judgment reversed. All the Justices concur.

Summary

Judgment reversed. All the Justices concur.

Text

Freddie M. Milton appeals his conviction for the murder of his former wife, Marie Benjamin Milton. He was sentenced to life imprisonment. His only enumeration of error contends that the court erred in excluding on motion of the state his testimony and the testimony of one of his witnesses concerning four specific occasions upon which the deceased had attacked him with various weapons. This court reverses.

The deceased had returned from the laundromat and had blown the horn for her three children to help her remove the clothes from the automobile. Her children had come outside to help her. The defendant drove up and parked behind the deceased's automobile. The children were told by their mother to go play on the swings in the yard while their mother talked to the defendant. While playing, the children heard their mother and the defendant arguing. She was standing next to the defendant's automobile in which he was sitting during the entire incident. The children, or at least one of them, then heard and saw the following: A shot was fired. Their mother clutched her side and started bending over, after which additional shots were fired as she fell to the ground and lay on the ground. Blood spurted from her body as she was hit, and dirt was kicked up beside her when one shot missed her as she was lying on the ground. The gun continued to click as its firing mechanism was operated after it was empty. The defendant then turned on his headlights and drove away.

A neighbor heard the gunshots and the children's screaming, and saw the defendant driving out of the driveway. The state's pathologist who conducted the autopsy discovered four gunshot wounds in the body, all inflicted at close range, some of which were sustained in a manner consistent with the deceased's having been leaning forward or lying on the ground when they were inflicted.

The defendant testified that he never saw a gun or weapon in the possession of the deceased before he fired. His taped interview by a detective was played for the jury during which the defendant was heard to say, "I don't know whether she had one gun or not, but that's what she told me." The detective testified that the defendant had said he never had known the deceased to carry a gun and that she did not own a gun.

The state's motion in limine was sustained, directing the defendant and his counsel to refrain from making any reference before the jury to previous specific acts of violence on the part of the deceased toward the defendant. Defendant made a showing under oath outside the presence of the jury. He would have testified, had the state's motion not been sustained, that he honestly was trying to defend himself; that she had threatened to kill him, had told him she had a gun in her purse, and had started reaching into the purse before he started shooting her; that she had shot him in the hand during an argument in 1971; that she had cut his lip with a butcher knife during an argument in 1978; that during another argument she threw a jar at him which cut his foot; that during another argument she had tried to cut him with a knife but he had gotten it away from her; and that his sister, Mary Carter, had witnessed this last occurrence, and would testify concerning it.

The state contends that Milton impermissibly was seeking to prove the general character of the deceased for violence by proving specific instances of violence by the deceased against Milton. Milton contends that he was not attempting to prove the general character of the deceased for violence. Rather, he contends that he was attempting to illustrate the basis for his reasonable belief that he had to shoot his wife because she was trying to shoot him. Proof of defendant's reasonable belief that he needed to shoot first was the key to a successful defense of self-defense. Code Ann. 26-902 (a).

The reputation or character for violence of a victim of homicide usually is irrelevant and inadmissible in a murder trial because it is just as unlawful to murder a violent person as it is to murder a nonviolent person. Doyal v. State, 234 Ga. 827, 828 (218 SE2d 612) (1975). The deceased's general reputation or character for violence has been held to be admissible "only when there has been a prima facie showing [by the defendant] that three elements are present: that the deceased was the assailant; that the deceased assailed defendant; and that defendant was honestly seeking to defend himself." Curtis v. State, 241 Ga. 125, 126 (1) (243 SE2d 859) (1978). To the same effect: Campbell v. State, 222 Ga. 570, 573 (151 SE2d 132) (1966); Black v. State, 230 Ga. 614, 615 (198 SE2d 314) (1973); Henderson v. State, supra. The rule requiring proof by the defendant of a prima facie case of present assault by the deceased on the defendant also applies in cases in which the defendant seeks to prove prior specific assaults by the deceased upon the defendant to illustrate his contention that he reasonably believed he had to use deadly force to defend himself. Maynor v. State, 241 Ga. 315 (245 SE2d 268) (1978). It long has been stated that the general reputation or character of the deceased for violence cannot be established by proof of prior specific acts of violence. Doyal v. State, supra; Warrick v. State, 241 Ga. 315, 316 (245 SE2d 268) (1978).

In cases of doubt as to whether or not evidence of prior difficulties should be admitted, the evidence should be admitted and its credibility and weight should be decided by the jury. Warrick v. State, 226 Ga. 281 (174 SE2d 418) (1970). The reason for the rule favoring admissibility of such evidence where the reasonable belief of the accused that he is being assailed by the deceased is put in issue under the plea of self-defense has been stated as follows: "This court stands pledged, by its past history, for the abolition, to the extent of its power, of all exclusionary rules which shut out facts from the jury which may serve, directly or remotely, to reflect light upon the transaction upon which they are called upon to pass." Baker v. State, supra, at 623. To the extent that cases such as Smithwick v. State, 241 Ga. 125 (243 SE2d 859) (1976). The rule of the present case is that where the defendant has made a prima facie showing of the basis for a reasonable belief that the deceased was reaching for a firearm with the present intention of using it to carry out a death threat recently communicated by the deceased to the defendant, the defendant is entitled to introduce in evidence his own testimony and that of his witnesses to prove specific instances in which the deceased had used a firearm or other weapons or objects to assail him. The lapse of time between the prior occurrences and the homicide, the conduct of the parties toward each other during the intervals between the occurrences, and other such matters go to the weight and credit to be accorded the testimony by the jury and not to its admissibility. In cases of doubt, the testimony should be admitted. The case of Music v. State, 244 Ga. 832, (1979), stated the general rule in reference to specific acts of the deceased against persons other than the appellant, and has no application in cases in which the deceased's prior assaultive conduct was directed toward the accused.

Falligant, Sims & Donaldson, R. B. Donaldson, Jr., for appellant.

1979