Lead Opinion
On October 5, 2001, Daniel A. Arthur, Jr., was convicted by a jury of malice murder and aggravated assault, and his conviction was affirmed by this Court in Arthur v. State,
The record shows that, at his trial, Arthur set forth the affirmative defenses of justification and accident. Arthur’s counsel requested that the jury be charged that the State had the burden of disproving these affirmative defenses beyond a reasonable doubt. The trial court agreed to this request. When charging the jury, however, the trial court apparently committed a slip of the tongue with regard to justification, charging: “The State has the burden of proving beyond that the defendant was not justified.” The trial court omitted the words “a reasonable doubt.” When charging the jury regarding the affirmative defense of accident moments later, the trial court correctly charged: “When the issue of accident is raised, the burden is on the State to negate or disprove it beyond a reasonable doubt.” In addition to these charges, the trial court generally charged the jury that: (1) “[n]o person shall be convicted of any crime unless and until each element of the crime is proven beyond a reasonable doubt”; (2) “[t]he burden of proof rests upon the State to prove every material allegation of the indictment and every essential element of the crime charged beyond a reasonable doubt”; and (3) “[tjhere is no burden of proof on the defendant whatsoever and the burden never shifts to the defendant to prove innocence.” After completing its oral charge, the trial court sent a written set of charges to the jury which would have included the full charge for both justification and accident.
The proper standard for evaluating the effectiveness of appellate counsel is set forth in Shorter v. Waters, 275 Ga. 581 (571 SE2d 373 ) (2002). See also Battles v. Chapman,269 Ga. 702 (506 SE2d 838 ) (1998). Applying that standard, the ineffectiveness of trial counsel would be procedurally defaulted for purposes of habeas corpus relief unless [Arthur] can meet his burden of showing that appellate counsel’s decision to forego that issue was an unreasonable tactical move which no competent attorney in the same situation would have made. See Shorter v. Waters, [supra] at 585; Battles v. Chapman, supra at 705 (1) (a).
State v. Smith,
Based on the record of this case, the habeas court did not err in its conclusion that Arthur’s appellate counsel did not render ineffective assistance. In Bishop v. State,
When a defendant raises an affirmative defense and offers evidence in support thereof, the State has the burden of disproving that defense beyond a reasonable doubt. State v. Royal,247 Ga. 309 (275 SE2d 646 ) (1981). It is reversible error for the trial court to decline to give a requested charge on the burden of proof, where, as here, the charge is a correct statement of the law and is adjusted to the evidence. Griffin v. State,267 Ga. 586 (1) (481 SE2d 223 ) (1997); State v. Shepperd,253 Ga. 321 (320 SE2d 154 ) (1984).
Likewise, in Stinson v. State,
In this case, however, the failure to give the charge as requested was not the result of the trial court’s refusal. To the contrary, the trial court agreed to give the requested charge, but made a slip of the tongue in doing so. The general rule is that “[a] mere verbal inaccuracy in a charge, which results from a palpable ‘slip of the tongue,’ and clearly could not have misled or confused the jury” is not reversible error. Siegel v. State,
The dissent contends that this case is controlled by Bishop, supra, and Stinson, supra. In making this claim, however, the dissent fails to take into consideration any of the factors which distinguish those cases from the present one. In this case, the trial court merely made a slip of the tongue and moments later correctly instructed the jury about a second affirmative defense; the defendant’s attorney specifically informed the jury about the burden of proof for an affirmative defense;
Judgment affirmed.
Notes
Arthur’s trial counsel also acted as his appellate counsel, so his ineffective assistance claims were not barred. See generally Garland v. State,
The transcript indicates that the trial court had approved full and correct charges on both affirmative defenses.
Arthur’s counsel stated that “once [Arthur] raises the issue of self-defense, the burden of proof is on the State beyond a reasonable doubt to prove that he didn’t act in self-defense.”
The dissent contends: “We thus have held that the failure to charge the jury on the State’s burden of disproving the affirmative defense is reversible error even where, as in this case, the jury was instructed on the general burden of proof and counsel stated the correct burden of proof during closing argument. Stinson v. State,
Dissenting Opinion
dissenting.
A majority of this Court today holds that it is not reversible error for a trial court to fail to instruct a jury, when requested, as to the State’s burden of proof with regard to an affirmative defense. Because this holding is contrary to our case law and authorizes juries to determine the guilt or innocence of a defendant with no direction as to the evidentiary burden applicable to an affirmative defense, I dissent.
In Bishop v. State,
The majority opinion rejects this authority and distinguishes this case based on the fact that the trial court did not refuse to give the charge but committed its omission by a “slip of the tongue.” Contrary to the majority opinion, however, our decisions on this issue turn not on whether the omission of the essential charge resulted from the court’s refusal to give the charge or an inadvertent “slip of the tongue,” but on the fact that in the absence of such a charge, the jury is improperly left either to guess as to the applicable burden of proof or to infer the State’s burden from other general charges. We thus have held that the failure to charge the jury on the State’s burden of disproving the affirmative defense is reversible error even where, as in this case, the jury was instructed on the general burden of proof and counsel stated the correct burden of proof during closing argument. Stinson v. State,
It follows that I also disagree with the majority opinion’s characterization of the trial court’s failure to give the charge as a “slip of the tongue” which clearly could not have misled or confused the jury. Rather than a “mere verbal inaccuracy” preceded and followed by correct instructions, the trial court’s omission of the essential language constitutes a complete failure to charge the jury on the State’s evidentiary burden to disprove the asserted affirmative defense, leaving the jury with no direction as to the applicable law. Compare Davenport v. State,
Finally, I cannot agree with the majority opinion’s determination that the jury in this case was informed of the correct burden of proof by way of the written charges. No written jury charges are included in the record on appeal, and therefore, the habeas court’s finding that the written charges were “apparently” included in the full charge, and the majority’s reliance on this finding, is not supported by the record.
Because this case is controlled by our decisions in Bishop and Stinson and Arthur would have been entitled to a new trial had appellate counsel raised this issue on appeal, I would find appellate counsel provided ineffective assistance and reverse.
I am authorized to state that Presiding Justice Hunstein and Justice Benham join this dissent.
This position was consistent with our holding in Conklin v. State,