Lolley v. State , 259 Ga. 605 ( 1989 )

Per curiam.

Alexander Lolley killed Randy Taylor with a knife. He was convicted of malice murder and sentenced to imprisonment for life.¹

The evidence indicated that Lolley came home and found his wife in the company of another man. The man departed, and Lolley and his wife quarreled. Lolley struck his wife several times, and she fled. Lolley’s sister was present and took Lolley’s children to her home. Later that evening Lolley went to see Taylor, whom he suspected of an involvement with his wife during the previous year. According to a statement that he gave to law enforcement officers, Lolley had planned to divorce his wife, and hoped that he could persuade Taylor to testify as to his wife’s misconduct,' which he thought would help him to obtain custody of his children. Taylor refused to discuss the matter. A fight ensued, and Taylor was killed. The weapon was a knife some thirty inches long, commonly called a machete.

In the early morning hours of August 1, 1987, Lolley surrendered himself to the Turner County sheriff’s office, stating that he had killed someone. He brought with him a knife that was covered with blood and hair, and asked the jailer to call the sheriff. When he arrived, Lolley told the sheriff that he had killed Taylor, and added that if Taylor was not dead, he would go back and “finish the job.”

A medical examiner testified that Taylor bled to death from multiple knife wounds. The evidence indicated that the hair and blood found on the cane knife were consistent with that of Taylor.

1. Lolley contends that the trial court erred in refusing to allow him to offer evidence that Taylor and Taylor’s brother earlier had fought over a woman with whom they both were involved. Our cases have held that a victim’s acts of violence to persons other than the defendant are inadmissible to prove the character of the victim for violence. Bennett v. State, 254 Ga. 162, 164 (326 SE2d 438) (1985). Accord Harrison v. State, 251 Ga. 837, 838-839 (310 SE2d 506) (1984); Golden v. State, 250 Ga. 428 (297 SE2d 479) (1982); Music v. State, 244 Ga. 832 (262 SE2d 128) (1979).

2. When Lolley surrendered himself, he volunteered to the jailer, with no prompting, that he had killed someone. Then he tossed a knife onto a desk. The jailer drew his weapon, and by telephone asked that the sheriff come to the jail immediately, with no further explanation. When the sheriff arrived, he observed that Lolley, who wore no shirt, had cuts over the upper portion of his body. A bloody knife was on a desk in front of the jailer. The sheriff asked of Lolley: “What have you got yourself into now, Alex?” Lolley responded that he had killed Taylor.

Lolley now insists that the trial court should have excluded these statements because he had not been advised of his right to remain silent under Miranda v. Arizona, 384 U. S. 436 (86 SC 1602, 16 LE2d 694) (1966).

(a) Assuming that Lolley was in custody when he made both statements, they are not subject to exclusion under Miranda. The initial statement to the jailer was spontaneous on Lolley’s part, and clearly was not in response to any questioning of any kind. Aldridge v. State, 247 Ga. 142 (274 SE2d 525) (1981).

(b) As to the sheriff’s inquiry, see State v. Overby, 249 Ga. 341 (1) (290 SE2d 464) (1982), for the rule that threshold, on-the-scene questioning is permissible though the “scene” is a custodial institution.²

So long as the interrogation is not aimed at obtaining information to establish a suspect’s guilt but is instead aimed at determining the nature of the situation upon the arrival of the policeman on the scene, some initial inquiry may, under the circumstances, be permissible before Miranda warnings are given. [Aldridge, supra at pp. 144-145.]

In our view, the sheriff’s question falls within this category, and was not asked for the purpose of extracting incriminating information. There was no error.

3. Lolley insists that certain statements made by him after he was warned of his rights under Miranda should have been excluded because they were the result of the sheriff’s coercive behavior. The trial court found otherwise. That finding is not clearly erroneous, and will not be disturbed on appeal. Brown v. State, 256 Ga. 439 (349 SE2d 738) (1986).

4. Lolley maintains that the trial court erred in refusing his request to charge the provisions of OCGA § 16-5-3 (a)³ as a lesser included offense to murder. He insists that the jury could have found that he committed the unlawful act of reckless conduct, but did not intend to cause Taylor’s death.

According to the evidence, Taylor suffered five knife wounds to the top and back of the head; five knife wounds to the arm and shoulder areas; at least two knife wounds to the legs; and fourteen knife wounds to the back.

The unlawful use of the knife, a deadly weapon, while repeatedly stabbing the victim constituted the felony of aggravated assault; thus a charge on involuntary manslaughter would have been improper. [Harris v. State, 257 Ga. 385, 386 (359 SE2d 675) (1987).]

5. Other alleged deficiencies at trial were corrected by the trial court and do not provide grounds for reversal.

6. A rational trier of fact could have found Lolley guilty of malice murder beyond a reasonable doubt. Jackson v. Virginia, 443 U. S. 307 (99 SC 2781, 61 LE2d 560) (1979).

Judgment affirmed.

All the Justices concur, except Clarke, P. J., and Gregory, J., who dissent.

1 The homicide occurred on August 1, 1987, and Lolley was convicted and sentenced on May 5, 1988. His motion for new trial was denied on April 13, 1989, and his appeal docketed in this court on May 31, 1989. The case was argued on September 13, 1989.

2 In Overby, supra, we noted that questions such as “What happened?”, or “What is going on?”, may be asked without violating the rule of Miranda. Id. at p. 342.

3 “A person commits the offense of involuntary manslaughter in the commission of an unlawful act when he causes the death of another human being without any intention to do so by the commission of an unlawful act other than a felony.”