Moore v. State

224 S.E.2d 856, 137 Ga. App. 735, 1976 Ga. App. LEXIS 2588

• Court: Court of Appeals of Georgia
• Decided: January 27, 1976
• Docket: 51222
• Status: Published

Opinions

Bell, Chief Judge.

1. The evidence was sufficient to authorize the conviction.

2. However, the judgment must be reversed because the trial judge erred by instructing the jury that the defendant had the burden of proving the affirmative defense of coercion by a preponderance of the evidence.

We, the judges of both appellate courts, have thoroughly confused the law on whether a defendant in a criminal case has any burden of proof or of persuasion. The writer is equally at fault — having concurred in Gibbons v. State, 136 Ga. App. 609 (222 SE2d 55).

Under constitutional concepts, the answer has to be that a defendant has no burden whatsoever either of proof or of persuasion. Our fuzzy decisions have arisen because of our inability to instantly grasp the true character of those affirmative defenses authorized by Code Ann. Ch. 26-9 and Code Ann. § 26-1003. We erred in Chandle v. State, 230 Ga. 574 (3) (198 SE2d 289); State v. McNeill, 234 Ga. 696 (217 SE2d 281); Gibbons v. State, 136 Ga. App. 609, supra; Cowart v. State, 136 Ga. App. 528 (221 SE2d 649). But we are gradually getting things corrected. The case law as it is now is as follows: The so-called affirmative defenses do not change anything nor do they create any burden whatsoever. All they imply is that if a defendant presents one it is to his advantage and to his interest to affirmatively show it as best he can but he has no burden to show it nor does he have a burden of persuasion. If he raises the defense ineptly, a trial judge cannot instruct a jury that it may draw any inference from the ineptness. Our awkward use of phrases such as "burden of persuasion” and "going forward with the evidence” and others have caused confusion where there should be none.

While the Supreme Court has held that the defendant has the burden of persuasion when he raises an affirmative defense to crime (Chandle v. State, 230 Ga. 574(3), supra; State v. McNeill, 234 Ga. 696, supra), more recent Georgia Supreme Court decisions have impliedly overruled Chandle and other older cases. Grace v. Hopper, 234 Ga. 669 (217 SE2d 267); Henderson v. State, 234 Ga. (3) (218 SE2d 612). These later cases have been decided since the United States Supreme Court holdings in Mullaney v. Wilbur, 421 U. S. 684 (95 SC 1881, 44 LE2d 508). Mullaney dealt with Maine decisional law that required a defendant to establish by a preponderance of the evidence that he acted in the heat of passion on sudden provocation in order to reduce murder to manslaughter. The holding in Mullaney was "that the due process clause requires the prosecution to prove beyond a reasonable doubt the absence of the heat of passion on sudden provocation when the issue is properly presented in a homicide case.” 44 LE2d 522. In Henderson v. State, 234 Ga. 827, 832 (3), supra, the Supreme Court, citing Mullaney, held that the trial court erroneously shifted the burden of proof on a defendant in a murder case when the court instructed the jury that the defendant must prove self-defense beyond a reasonable doubt. In Grace v. Hopper, 234 Ga. 669, 671, supra, again citing Mullaney and U. S. Supreme Court cases, it was stated: "These United States Supreme Court cases persuade us that in order to comport with due process the prosecution must carry the burden of proving all critical essential elements of the crime charged against a defendant.” This clearly means that where a defendant raises an affirmative defense and offers evidence in support of it (which he must do in order to "raise” it), the burden is on the state to disprove it beyond a reasonable doubt.

Here, the defendant was convicted of robbery in violation of Code § 26-1901. At his trial, he raised by his evidence the affirmative defense of coercion. In so doing, he effectively denied, when he claimed that he was coerced, that he had any intention to commit the crime and particularly any specific intent to commit theft, a critical essential element of the offense of robbery. The only responsibility that defendant had was to come forth with evidence of this defense. This he did. This responsibility of producing evidence of an affirmative defense is set forth in our Criminal Code. See Code § 26-401 (a). The responsibility of producing evidence of an affirmative defense and the burden of persuasion by proof beyond a reasonable doubt are two distinct and separate concepts. The first is placed squarely on the defendant unless the state’s evidence raised the issue. Code § 26-401 (a). The other, the ultimate burden of persuasion by proof beyond a reasonable doubt of all critical essential elements of the crime, remains with the state throughout the trial and it never shifts. Burns v. State, 135 Ga. App. 842 (3) (219 SE2d 487).

Submitted September 29, 1975 Decided January 27, 1976 Rehearing denied February 19, 1976 John W. Timmons, Jr., for appellant. Harry N. Gordon, District Attorney, B. Thomas Cook, Jr., Assistant District Attorney, for appellee.

While the defense of alibi is not a so-called affirmative defense, both Patterson v. State, 233 Ga. 724 (213 SE2d 612) and Ward v. State, 234 Ga. 882 (218 SE2d 591), have clearly and unmistakably held that charging the jury that a defendant had the burden of persuasion when he raises the defense of alibi is not constitutionally permissible. Actually, there cannot be and there is no distinction on that point between the defense of alibi and the affirmative defenses under Code Ch. 26-9.

Judgment reversed.

Quillian, Clark, Stolz and Marshall, JJ., concur. Evans, J., concurs specially. Pannell, P. J., Deen, P. J., and Webb, J., dissent.