Sumpter v. State , 260 Ga. 683 ( 1990 )

260 Ga. 683 (1990) 398 S.E.2d 12

SUMPTER
v.
THE STATE.

S90A1559.

Supreme Court of Georgia.

Decided November 21, 1990. Reconsideration Denied December 19, 1990.

John H. Tarpley, Sr., for appellant.

Robert E. Wilson, District Attorney, Barbara B. Conroy, Thomas S. Clegg, Assistant District Attorneys, Michael J. Bowers, Attorney General, C. A. Benjamin Woolf, for appellee.

WELTNER, Justice.

James Sumpter shot and killed his wife, Lois Sumpter, with a handgun. He was convicted by a jury of felony murder and of pointing a pistol at another, and was sentenced to life imprisonment and for a misdemeanor.^[1]

After a history of death threats and physical and verbal abuse of his wife, Sumpter pointed a pistol at her and at a friend of her daughter; fatally shot Lois Sumpter in the back; and fired more shots into the ground near her prostrate body. Although Lois Sumpter had a handgun in her purse, she did not put her hand into it, nor did she mention the handgun or threaten or berate Sumpter.

1. (a) Sumpter contends that the trial court erred in charging the jury that if it found him guilty of aggravated assault, it could find him guilty of felony murder regardless of its finding as to malice murder.

(b) The charge was correct under the present law. See Foster v. State, 259 Ga. 206 (4) (378 SE2d 681) (1989) and cits. In Lewis v. State, 260 Ga. 404, fn. 2 (396 SE2d 212) (1990), this court recognized some problems with the existing law, but noted that the remedy should lie with the General Assembly.

2. (a) Sumpter argues that the trial court erred in admitting evidence of his in-custody statements, alleging that they were involuntary in that he was not advised of his "Miranda rights" prior to giving the statements; he was "sort of sick" and "under the weather" from having been drinking all day; and that he was coerced by a detective threatening him with the nonexistent crime of "first-degree murder."

(b) Unless clearly erroneous, a trial court's factual determinations relating to the credibility of witnesses and the admissibility of confessions will be upheld on appeal. [Cits.] [Dampier v. State, 245 Ga. 427, 430 (3) (265 SE2d 565) (1980).]

Sumpter admitted that he was informed of the Miranda warnings prior to making his statement, and that he signed the waiver form before signing his statement. Sumpter was literate. He did not tell the detective that he wished to remain silent, or that he wanted an attorney, or that he wanted the interrogation to end. Sumpter's emotional state and partial intoxication did not vitiate per se the voluntariness of his statement. See Carter v. State, 257 Ga. 510 (3) (361 SE2d 175) (1987); Fowler v. State, 246 Ga. 256 (3) (271 SE2d 168) (1980). The officer taking the statement testified that Sumpter did not appear to be under the influence of drugs or alcohol. The trial court's finding of voluntariness was not clearly erroneous.

3. (a) Sumpter urges that the trial court erred in admitting a tape recording of an argument between himself and his wife, which took place after he had been jailed for a prior battery of the victim. The recording disclosed that he had threatened to kill his wife if she had him arrested again. He contends that the trial court failed to instruct the jury, at the time the recording was admitted, that it might be considered only to illustrate prior difficulties.

(b) In Cannon v. State, 257 Ga. 475, 478 (3) (360 SE2d 592) (1987), we held:

Although as a general rule the state may not introduce evidence of a criminal defendant's bad character unless the defendant first introduces evidence of his good character, "[w]e have often held that evidence of prior difficulties between an accused and the victim is admissible to illustrate the accused's motive, intent, or bent of mind toward the victim. [Cits.]" Hales v. State, 250 Ga. 112, 113 (2) (296 SE2d 577) (1982).

The evidence did not place Sumpter's character in evidence impermissibly, nor was it inadmissible because of its possible adverse effect upon him. Similarly, the evidence was probative as to Sumpter's "motive, intent, or bent of mind toward the victim," Cannon, supra, and the trial court so instructed the jury in its charge. There was no error.

4. The evidence is sufficient to permit a rational trier of fact to find Sumpter guilty of felony murder and pointing a pistol at another beyond reasonable doubt. Jackson v. Virginia, 443 U. S. 307 (99 SC 2781, 61 LE2d 560) (1979).

Judgment affirmed. All the Justices concur.

NOTES

[1] The crimes occurred on September 28, 1989. Sumpter was found guilty on February 12, 1990, and was sentenced the same date. His motion for new trial was filed on March 7, 1990, and denied on June 27, 1990. The appeal was docketed on August 23, 1990, and submitted without oral argument on October 5, 1990.