Petition for Writ of Certiorari — Nunnally v. Georgia

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Supreme Court, U. & f

FILED

j MAR 10 1976

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| WICHAEL RODAK sp cicew |

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In the Supreme Court of the United States

OCTOBER TERM, 1975

ALICE ELIZABETH NUNNALLY,

Petitioner,

VS.

THE STATE OF GEORGIA,

Respondent.

PETITION FOR A WRIT OF CERTIORARI TO THE

SUPREME COURT OF THE STATE OF GEORGIA

Rosert E. McDurr

FRANK D. HOLCOMB

Hotcoms & McDuFrr

78 Atlanta Street

P. O. Box 969

Marietta, Georgia 30060

Attorneys for Petitioner

E. L. Mespenwati, Inc., 926 Cherry Street, Kansas City, Mo. 64106, 421-3030

Appendix B—Decision of the Georgia Supreme Court. A2

Appendix C—Cobb County Superior Court Judgment

INDEX

IN ah ci sche sccimisinayencseseeinensgvionepsianniamemnianoniad ere eee 2 :

I isi tinvrechesnicencepesinnianinstoeminioimaaamaadiniads 2 ’

I I 6s esc cieciecticcliaovsenprinicicdstheiiaaheinenaunintak 3 :

Constitutional Provisions Involved ............2..20.......20:0200+- 5 :

aa Er TI nancies etrsesesdchten ors 6

Argument for Allowance of WYit .............0.0-0-eee 11

Notice of Certiorari and Stay of Remittitur to Supreme :

I Ie I ici cle hci teisecenens 15 ¢

Certificate of Service of Petition for Certiorari ............ 17

Appendix A—Denial of Motion for Rehearing ................ Al f

Denying Defendant’s Motion for New Trial ................ A20 :

Appendix D—Motion for New Trial in Cobb Superior '

Court—Grounds 4, 5, 6, and 7 ~...0.....2.eceeeeceeeeeeeeee: A23 i

Appendix E—Motion for New Trial in Cobb Superior :

Court—Grounds 14 and 15 oo... ceeeeeteceeeeeeteeeees A30 i

Table of Authorities '

CASES :

In re Winship v. U. S., 397 U. S. 359 (1970) ecco 12

Laat: yO. 3, TER OT DO CRD soccttcecsce 11

Mullaney v. Wilbur, Jr., ........ 5 See (1975), 95

Sem. Ce. O50t, SE a. We. SOOO .........2 8. 12 ¢

Tot v. U. S., 319 U.S. 463 (1948) ooeccececceceesscseeeeeees ci i

Turner v. U. S., 396 U. S. 398 (1970) o.-ceeccecce ce cee sesso 11-12 ;

U.S. v. Romano, 382 U.S. 136 (1965) oooccccccccccccccceeseceee 1 f

9 sey ER NEE AR TER

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PLAT ALAS LAI DERE IIRL LAL LLL SCOT LOBE OS BOW Rae RENE ee » s ange < * — , “ eras wee |

II

CONSTITUTIONAL PROVISIONS

AND STATUTES

Constitution of the United States—

Fifth Amendment ................00.0.000000000.0.... 3, 4, 5, 12, 13, 14

Fourteenth Amendment .......0000000000000..... 3, 4, 5, 12, 13, 14

Ie I SNE cereals eiaciseniienecencranennteiysonsonsenscance 2

Le Ro REY

PNRRRE RRR ee ea, |

In the Supreme Court of the United States

OCTOBER TERM, 1975 :

Wud eao—e

ALICE ELIZABETH NUNNALLY,

Petitioner,

VS.

THE STATE OF GEORGIA,

Respondent.

PETITION FOR A WRIT OF CERTIORARI TO THE

SUPREME COURT OF THE STATE OF GEORGIA

This is a petition to the Supreme Court of the United

States for a writ of certiorari to the Supreme Court of the

State of Georgia to submii for review and reversal here

the opinion and decision of the Supreme Court of the State

of Georgia which denied the motion for rehearing on De-

cember 15, 1975. The original decision was decided and

entered November 24, 1975, in its Case Number 30250, en-

titled ALICE ELIZABETH NUNNALLY vs. THE STATE

OF GEORGIA.

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OPINION

The opinion of the Georgia Supreme Court is officially

recorded in 235 Georgia Supreme Court Reports, Page 693

(1975). This case was originally appealed from the Cobb

County Superior Court to the Supreme Court of Georgia.

The opinion in this case dated November 24, 1975, no-

tice cf denial of rehearing dated December 15, 1975, and

the order granting stay of remittitur in order that an ap-

peal or an application for certiorari may be filed in the

Supreme Court of the United States dated December 30,

1975, appear here as an appendix, in accordance with Rule

39.

The decision of the Supreme Court of the State of

Georgia hereby appealed from was rendered December 15,

1975, denying appellant-petitioner’s motion for rehearing

of opinion entered November 24, 1975. The order granting

stay of remittitur in the Georgia Supreme Court was ren-

dered December 30, 1975.

JURISDICTION

Jurisdiction of this court to review this cause is be-

lieved to exist in United States Code Title 28, Section 1257.

, ' * rns a, use - — _ ox wiley Se

LIT Le Ne MITE OI ERIE IS OE DALE AMET 2S ME Penge) Be ol Me CTT Ne ay LSPS ey — |

QUESTIONS PRESENTED

i,

(a) Were the defendani’s rights under the Fifth and

Fourteenth Amendments to the Constitution of the United

States violated by a judge’s charge to the jury as follows:

“If you find a homicide is proved to have been

committed in this case by this defendant with an in-

strument which if you find was, in the manner in

which it was used upon the occasion in question, a

weapon likely to produce death, the law from the

use of such weapon in that manner presumes malice

and the intent to kill.”

(b) Was such a mandatory presumption as set forth

in the charge above constitutionally impermissible under

the Fifth and Fourteenth Amendments particularly in a

jurisdiction where such presumption was not legislatively

created, and in a case where the defense was accident.

(c) Did not the constitutionally impermissible taint

under the Fifth and Fourteenth Amendments still exist

and remain where the court further charged the jury and

emphasized the duty to find guilt as follows:

“It is not incumbent upon the accused to prove

an absence of malice if the evidence for the prosecu-

tion shows facts which may excuse or justify the

homicide. If the homicide was in your opinion un-

lawful, and if there was present the intent to kill and

malice, the offense would be murder, and it would

be your duty to find the defendant guilty of the crime

of murder.”

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2.

(a) In a case where the defense was accident were

the defendant’s rights under the Fifth and Fourteenth

Amendments to the Constitution of the United States vi-

olated by a judge’s charge to the jury as follows:

“That the acts of a person of sound mind and

discretion are presumed to be the product of the per-

son’s will, but the presumption may be rebutted.

That a person of sound mind and discretion is

presumed to intend the natural and probable conse-

quences of his acts, but the presumption may be re-

butted.”

(b) If the charge, a rebuttable presumption, was

constitutionally permissible, did the charge violate the

Fifth and Fourteenth Amendments of the Constitution of

the United States when coupled with the charge set forth

in the question presented Number 1.

3.

(a) Did a 2:00 A. M. Saturday interrogation of the

defendant violate her rights under the Fifth and Four-

teenth Amendments to the Constitution of the United

States where defendant had already been in custody since

early Friday morning, gave a statement Friday morning,

and employed counsel Friday P. M., where the interro-

gating police officers had actual knowledge of the name

and employment of counsel, where it was anticipated and

it was normal procedure for Mrs. Nunnally to be moved

from Smyrna Jail on Friday P. M., when she was held

in Smyrna until after the 2:00 A. M. interrogation and

where the defendant had been informed by the police that

the police were investigating the lesser charge of volun-

tary manslaughter.

© PEI TR FILA LIT OF IRE

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(b) If such questioning procedure under the cir-

cumstances as are set forth in 3 (a) is constitutionally :

impermissible, did such procedure also make inadmissable

previously given statements by Mrs, Nunnally to the police.

CONSTITUTIONAL PROVISIONS INVOLVED

1. ;

AMENDMENTS TO THE CONSTITUTION OF THE

UNITED STATES OF AMERICA, ARTICLE V

“No person shall be held to answer for a capital, or

otherwise infamous crime, unless on a presentment or in-

dictment of a Grand Jury, except in cases arising in the

land or naval forces, or in the Militia, when in actual ser-

vice in time of War or pubiic danger; nor shall any per-

son be subject for the same offense to be twice put in ‘

jeopardy of life or limb; nor shall be compelied in any

criminal case to be a witness against himself, nor be de-

prived of life, liberty or property, without due process of

law; nor shall private property be taken for public use,

without just compensation.”

2.

AMENDMENTS TO THE CONSTITUTION OF THE

UNITED STATES OF AMERICA, ARTICLE XIV

‘All persons born or naturalized in the United States,

and subject to the jurisdiction thereof, are citizens of the

United States and of the State wherein they reside. No

State shall make or enforce any law which shall abridge

the privileges or immunities of citizens of the United

States; nor shall any State deprive any person of life,

liberty, or property, without due process of law; nor deny

to any person within its jurisdiction the equal protection

of the laws.”

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STATEMENT OF THE CASE

Alice Elizabeth Nunnally was arrested on a warrant

for murder and concealing death on July 12, 1974. The

Grand Jury filed in the Clerk’s Office its bill of indict-

ment on August 20, 1974, and a trial was held beginning

November 4, 1974, with a jury verdict rendered on No-

vember 7, 1974. A motion for new trial was timely filed

and amended with the Cobb County Superior Court over-

ruling the motion on June 2, 1975. The case was then ap-

pealed to the State Supreme Court on behalf of Alice

Elizabeth Nunnaily with the State Supreme Court giving

its opinion on November 24, 1975, and overruling the mo-

tion for rehearing on December 15, 1975.

Alice Elizabeth Nunnally, the defendant accused, was

a church hostess at the First Baptist Church of Smyrna,

Georgia, and had known the deceased for about ten years.

On the morning of July 11, 1974, Alice Elizabeth Nunnally

picked up Lee Calhoun at Mr. Calhoun’s request from the

FPelmont Hills Shopping Center in Smyrna, Cobb County,

Georgia, and returned to the Nunnally home with Mr.

Calhoun. A pistol had previously been purchased which

Mrs. Nunnally stated was to be given to Phillip Sullivan, a

teacher in her department who was anticipating moving

from the State, and Mr. Calhoun inquired about checking

the pistol out in a bank in the back yard of the Nunnally

residence. The best route to the back yard is through

the kitchen, down the basement stairs and out the basement

door. Mrs. Nunnally carried the pistol which had previ-

ously been loaded under the direction of Mr. Calhoun and

Mr. Calhoun went first down the steps into the basement,

while Mrs. Nunnally was putting in her den a church

requisition that had been signed by Mr. Calhoun at the

kitchen table. Mr. Calhoun was chairman of the Hostess

ie Re BS

7

Committee and routinely signed requisitions for the church

hostess. Upon Mrs. Nunnally’s return to the kitchen, she

picked up the gun which she had laid on the table while

putting up the requisition, and started down the stairs

to the basement where Mr. Calhoun was already waiting at

the foot of the steps. It had been stipulated that Mr. Cal-

houn had .07 percent of ethyl alcohol in his blood, the same

being equivalent to three cans of beer, nine ounces of wine,

or three ounces of 100 proof alcohol. Mrs. Nunnally does

not drink. As Mrs. Nunnally reached approximately

the second or third step from the bottom, Mr. Calhoun

reached back with his left hand and took hold of Mrs.

Nunnally’s right hand, the hand in which she had the gun,

which startled Mrs. Nunnally. She was not expecting

him to do this and when he did, she pulled back and the

gun went off. Scratches were on the back of Alice Eliza-

beth Nunnally’s hand at the Smyrna jail. She stated that

she had slipped on the step and was not sure if she slipped

just before the gun went off or after the gun went off but

she did slip on the steps. The silhouette of Mr. Calhoun

was outlined between the posts in the basement. There

was also a steel post in the basement at the foot of the

stairs. When the gun went off, she reached for Mr. Calhoun

and blood came out all over her back, her hair and her

neck. As he fell, she caught him and under his weight,

managed to lay him down at the bottom of the kitchen steps.

The gun was fired only one time, with the bullet severing

the ascending aorta. Such severance is always fatal and

death ensues within a matter of minutes. A person can

stay on his feet after an injury of this sort for anywhere

from a few seconds to two minutes. Blood appeared to be

everywhere and Alice Elizabeth Nunnally blacked out.

She could not remember what happened once she got Lee

Calhoun to the floor. She knows that she thought about

calling an ambulance but she was in shock and the next

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thing she could remember was that the telephone was ring-

ing and she went upstairs to answer it. When she answered

the telephone, it was her brother-in-law who told her that

her sister in Rome, Georgia, had been injured. After that,

she did not remember what happened, but does remember

sitting down on the floor and seeing the blood all over her.

She did have concern that Lee Calhoun did not like blood

and all she could think about at this point was cleaning the

blood off of Mr. Calhoun. At this time, Lee Calhoun was

dead. Alice Elizabeth Nunnally returned to the basement,

cleaned up Mr. Calhoun as well as the basement, and

wrapped Mr. Calhoun’s body in plastic and moved him into

an area of the basement and placed boxes over his body.

Alice Elizabeth Nunnally was unable to explain why she

moved Mr. Calhoun’s body or why she placed the body

under boxes in her basement. Mrs. Nunnally’s sister visited

her that afternoon and her husband and son came home

from work that evening, without Mrs. Nunnally remem-

bering that there was a body in the basement or informing

these family members of that fact. Her son, Pat, went to

the basement and took a nap after he came home from

work that afternoon and Mrs. Nunnally and her husband

went out to supper leaving their son Pat in the house un-

attended. When they returned from supper, their son

left for a ballgame and Garnett Nunnally left for a board

of directors’ meeting of the Lions Club, leaving Mrs. Nun-

nally in the home by herself. She felt sick and stayed in

bed and had no recollection of the incident that occurred

that morning. Once she did have recollection of the oc-

currence, which was later that night after she and her

husband had retired, she immediately advised her husband

and after some considerable conversation with both her

husband and son, the husband had the son call the police.

In each instance in talking to the police, Alice Nunnally

contended that the shooting of Lee Calhoun was an acci-

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9

dent. A psychiatrist by the name of Sheldon Cohen tes-

tified that Alice Nunnally was a conventionalized normal

person and had no strong anger directed toward anyone.

He further testified that he found Alice Nunnally was

puzzled about what had gone on and could not understand

why people did not believe her and did not accept what

she said was true about what took place. The psychiatrist

explained the hiding of the body as the act of a woman in

psychological shock who behaved in an automatic way.

She had what was referred to as a splitting of her mind and

her conscience. She knew something should be done but

apparently Lee Calhoun died quickly and the only thing

that she was conscious about doing was to go about a sem-

blance of normalcy, which to her would have been clean-

ing up and tidying up the situation.

The court in charging the jury, gave the jury the fol-

lowing direction:

“If you find a homicide is proved to have been

committed in this case by this defendant with an in-

strument which, if you find was, in the manner in

which it was used upon the occasion in question, a

weapon likely to produce death, the law from the use

of such weapon in that manner presumes malice and

the intent to kill.

It is not incumbent upon the accused to prove an

absence of malice if the evidence for the prosecution

shows facts which may excuse or justify the homicide.

If the homicide was in your opinion unlawful and if

there was present the intent to kill and malice, the

offense would be murder, and it would be your duty to

finc the defendant guilty of the crime of murder.”

The question as to the propriety of this charge and

the burden it placed upon the defendant in this case was

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open

IS cee ena a

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brought to the trial court’s attention and was raised in the

amendment to the original motion for new trial in the Cobb

Superior Court in Grounds 4, 5 and 6 of said amended mo-

tion for new trial, where in 4(f) it was stated:

“Said charge was violative of the Fifth and Four-

teenth Amendments of the Constitution of the United

States in that it violated due process of law by placing

the burden of disproving guilt and removing the

presumption of innocence from the defendant.”

The court further in charging the jury gave the jury

the following additional directions:

“The acts of a person of sound mind and discretion

are presumed to be the product of the person’s will,

but the presumption may be rebutted.”

“A person of sound mind and discretion is pre-

sumed to intend the natural and probable consequences

of his acts, but the presumption may be rebutted.”

The question as to the propriety of these charges was

brought to the trial court’s attention in the amended mo-

tion for new trial. The trial court overruled the amended

motion for new trial.

The above issues were further argued before the Su-

preme Court of the State of Georgia and were specifically

set forth in both the enumerations of error and the

brief in that court as well as in the motion for rehearing.

The Supreme Court of the State of Georgia affirmed the

trial court.

During the trial of the case the interrogating police

officers admitted that after having told Alice Elizabeth

Nunnally that the contemplated charge was voluntary man-

slaughter and after learning of Mrs. Nunnally’s employ-

er. |

"5 CRE

11

ment of counsel on Friday, P. M., they proceeded to ques-

tion her at 2:00 A. M. on Saturday morning. It was cus-

tomary to send prisoners to Marietta and it was expected

that Mrs. Nunnally would be transported on Friday eve-

ning.

The testimony of the officers as to what Mrs. Nunnally

told them at this interrogation was objected to. The trial

judge, after objection, admitted testimony in evidence that

Mrs. Nunnally told the police officers she loved Lee Cal-

houn. Also, there was some difference as to precisely how

the gun happened to go off.

The admission of this testimony was set forth in the

motion for new trial as error and also enumerated as error

to the Supreme Court of the State of Georgia. Both courts

sustained the previous ruling of the trial court.

We submit that this court can and should consider the

questions presented on the constitutional issues raised.

ARGUMENT FOR THE ALLOWANCE OF WRIT

Question 1

It is contended that the Georgia Supreme Court has

not decided the questions herein presented in accord with

applicable decisions of this court and said decision com-

plained of is contrary to constitutional principles of due

process. The questions presented are of substance.

It is apparent that the Supreme Court of the United

States has dealt with the question of presumptions and the

troublesome task of determining what presumptions, if

any, are constitutionally permissible in cases such as Tot

v. U. S., 319 U. S. 463 (1943), U. S. v. Romano, 382 U. S.

136 (1965), Leary v. U. S., 395 U. S. 6 (1969), Turner v.

Seas Tyee? SME Ports STU rere arg ga

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12

U. S., 396 U. S. 398 (1970) and In Re Winship v. U. S., 397

U. S. 359. Additionally, the court is familiar with the im-

plications concerning presumptions contained in the case

of Mullaney v. Wilbur, Jr., ........ SA Sakan , 95 Sup. Ct. 1881,

43 L. W. 4695.

In the case here, the trial court charged the jury on

certain presumptions, one of which was: where death has

occurred by a weapon likely to produce death, the law pre-

sumes malice and the intent to kill.

This charge was created by the trial judge. It was

sustained by the Supreme Court of the State of Georgia.

This presumption has no legislative basis. Appellant con-

tends that such charge was mandatory in nature for the

judge made it clear that the law (emphasis added) pre-

sumes malice and the intent to kill.

It is further submitted that where the presumption is

judge-made rather than legislatively determined as is the

case here, particularly where the import and force of the

charge to the jury is mandatory in character and gives the

jury no standard by which they can accept or reject the

presumption, then due process of law is violated.

The presumption concerning the use of a deadly

weapon in this case has as its effect the direction of a ver-

dict for the State. Such result is neither permitted nor

authorized by the Fifth and Fourteenth Amendments to

the Constitution of the United States and where the possi-

bility of such result exists, then the constitutional standard

by which all citizens must be tried when accused of a crime

is violated.

Question 2

Two of the presumptions complained of herein, that

the acts of a person of sound mind and discretion are pre-

LRAT OY OLIIS CRE

13

sumed to be the product of the person’s will and that a

person of sound mind and discretion is presumed to intend

the natural and probable consequences of his act, are legis-

latively created. These two presumptions, though stated

to be rebuttable, have no stated standard by which the

jury is to determine whether or not they have been over-

come. The jury has little direction as to what quantum of

evidence is required to overcome either of the two above

presumptions. Coupled with the presumption in Question

1, the presumption has become constitutionally impermis-

sible in a case of accident.

Summary As to Questions 1 and 2

It is submitted to the court that under the Fifth and

Fourteenth Amendments to the Constitution of the United

States and under the previous cases of this court, each and

every element of a crime must be proven by the State

beyond a reasonable doubt. The presumption of innocence

cannot be overcome by either the possibility or the proba-

bility that the accused committed a crime. A “more likely

than not” test by which some presumptions have been

measured in the older previous cases does not adequately

protect the constitutional due process requirement to pre-

sume innocence.

It is respectfully requested that this court grant cer-

tiorari in order to review the case, determine the consti-

tutional standard which proof of each element of a crime

must meet and declare that constitutional protections of

citizens prevent convictions where presumptions avoid and

make unnecessary proof of essential elements of a crime.

The court should also hold unconstitutional all mandatory

presumptions and all presumptions which do not have ex-

pressed to the jury the basis on which they may be over-

come.

RT OR ES Oe

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Question 3

The 2:00 A. M. interrogation of Alice Elizabeth Nun-

nally by police officers, informed that defendant had coun-

sel, was in this case, constitutionally impermissible. The

officers by normal procedure and anticipation were to

move Alice Elizabeth Nunnally from Smyrna to Marietta

on Friday (T-156). Mrs. Nunnally had been informed that

the anticipated charge against her was voluntary man-

slaughter (T-157). The officers’ diligence in procuring an

additional discussion with Mrs. Nunnally without counsel

by scheduling such conference at 2:00 A. M. in the morning

where they, by all human experience, knew that counsel

would not be present violated due process. The very of-

ficers who led the interrogation at such an hour knew of

the name and employment of defendant’s counsel on Fri-

day, P.M. The technique and timing of the interrogation

placed the defendant under the pressure of social convic-

tion not to awaken her counsel at 2:00 A. M. and it is safe

to assume that the selection of the hour by the police was

purposely calculated to procure an additional statement

outside the presence of counsel, all in violation of the de-

fendant’s rights under the Fifth and Fourteenth Amend-

ments of the Constitution of the United States particularly

where the total hazard of her discussion with the police

was not made known to her, she had previously been in-

formed that the contemplated charge was voluntary man-

slaughter, not murder.

Respectfully submitted,

Rospert E. McDurr

Frank D. Hotcoms

Hoitcoms & McDurr

P. O. Box 969

Marietta, Georgia 30060

Attorneys for Petitioner

TARA PRT RIS MER TR TE

15

SUPREME COURT OF GEORGIA

NUNNALLY V. STATE

CASE NUMBER: 30250

DATE OF STAY ORDER: DECEMBER 30, 1975

The Honorable Supreme Court met pursuant to ad-

journment.

By Presiding Justice Undercofler:

The following direction was given:

Alice Elizabeth Nunnally v. The State

Upon consideration of the motion for a stay of this

court’s remittitur in order that an appeal or an application

for certiorari may be filed in the Supreme Court of the

United States to obtain a review of this court’s judgment

rendered in this case on December 15, 1975, such motion is

hereby granted, subject to the following conditions:

The clerk of this court is directed to withhold the

transmittal of such remittitur to the trial court for ninety

days from the date of this court’s judgment, and until the

final disposition of the said case by that court; Provided,

that promptly upon the filing of such appeal or application

in the Supreme Court of the United States, the clerk of this

court shall be notified thereof in writing and also shall be

notified of any judgment of that court denying such

application or appeal and of any motion for rehearing, or,

if no application or appeal be filed in that court within

the said ninety day period or within an authorized exten-

sion thereof, the clerk of this court shall be promptly so

notified in writing.

/s/ Hiram K. Undercofler

Presiding Justice

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PROOF OF SERVICE

GEORGIA, COBB COUNTY

I, ROBERT E. McDUFF, Attorney for Appellant, Alice

Elizabeth Nunnally, in Case Number 30250, in the Supreme

Court of the State of Georgia, against State of Georgia,

do hereby swear that on the 24th day of December, 1975,

I served a copy of motion to stay remittitur while applica-

tion is made to the Supreme Court of the United States for

a Writ of Certiorari by mailing a copy to:

The Honorable Arthur K. Bolton

Attorney General

State Capitol

Atlanta, Georgia 30334

The Honorable George W. Darden

District Attorney

Cobb County Courthouse

Marietta, Georgia 30060.

/s/ Robert E. McDuff

Robert E. McDuff

Attorney for Appellant

Sworn to and subscribed before me this 24th day of

December, 1975.

/s/ Donna Sturdevant

Notary Public,

Cobb County, Georgia

17

CERTIFICATE OF SERVICE OF

PETITION FOR CERTIORARI

I, ROBERT E. McDUFF, Attorney for Appellant,

ALICE ELIZABETH NUNNALLY, in Case Number 30250

in the Supreme Court of the State of Georgia, against State

of Georgia, do hereby swear that on the 9th day of March,

1976, I served three copies of the petition for certiorari by

mailing the same to the office of:

The Honorable Arthur K. Bolton

Attorney General

State Capitol

Atlanta, Georgia 30334

and by serving three copies of the petition for certiorari

by mailing the same to the office of:

The Honorable George W. Darden

District Attorney

Cobb County Courthouse

Marietta, Georgia 30060.

Rosert E. McDurr

Attorney for Appellant

ener erect eh aR NE

PRIMI TRIE TOMY NTI A

Al

APPENDIX

APPENDIX ‘‘A”’

SUPREME COURT OF GEORGIA

NUNNALLY V. STATE

CASE NUMBER: 30250

ORDER DATE: December 15, 1975

Clerk’s Office, Supreme Court of Georgia

Atlanta 12/15/75

DEAR SIR:

The motion for a rehearing was denied today: Case

Number 30250, Nunnally v. The State

Jordan, J., dissents.

Yours very truly,

Mrs. Joline B. Williams, Clerk

1s Orman Pop ayy

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APPENDIX ‘“B”’

30250. NUNNALLY v. THE STATE OF GEORGIA

235 Ga. 693 (1975)

UNDERCOFLER, Presiding Judge.

Mrs. Alice Elizabeth Nunnally was convicted of mur-

der and concealing a death by a jury in the Superior

Court of Cobb County and sentenced to life imprison-

ment for murder and to twelve months for concealing a

death to run concurrently, and she appeals her convic-

tions to this court.

At trial, the prosecution presented evidence to estab-

lish the sollowing:

Late in the evening on July 11, 1974, Mrs. Elaine

Calhoun filed a missing persons report on her husband,

Lee Calhoun, with the Smyrna, Georgia Police Depart-

ment. A description of Lee Calhoun and his automobile

was transmitted to all Smyrna police units. His automo-

bile was located in the parking lot of the Belmont Hills

Shopping Center about 2:20 a.m., July 12, 1974. At 4:45

a.m. on July 12, 1974, Patrick Nunnally reported to the

Smyrna Police Department by telephone that there was

a person shot at 2295 Robin Lane, Smyrna, Georgia.

Officers who responded to the call were met in the

driveway of the home by Patrick Nunnally, son of the

appellant who told them there was a body in the base-

ment of the house and that his mother was inside the

house in an hysterical condition. The officers went to

the basement but were unable to locate a body or any

signs of foul play.

They then talked with the appellant and her husband.

Appellant stated that the victim, Lee Calhoun, had come

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by the home earlier on the morning of July 11, 1974, to

pick up a pistol because he was going to his father’s house

and wanted to take the pistol with him. She related that

she got the pistol (a Smith and Wesson, .38 caliber re-

volver) from the bedroom; that she and the victim were

going to the basement; that as she went to hand the pistol

to the victim, it struck a metal pipe in the basement dis-

charging; and that it struck him. She stated that she

passed out after the shot was fired and did not regain

consciousness until later. Appellant then told the officers

that the body could be located under some cardboard

boxes against the north wall of the basement.

A homicide detective located the body under eight to

twelve cardboard boxes stacked about 3 1/2 feet high, ly-

ing face down, wrapped in plastic and bound with nylon

stockings. He also recovered a bullet from the basement

floor.

Thereafter, appellant retrieved a .38 caliber Smith

and Wesson revolver and a box of .38 caliber bullets from

a dresser drawer in her bedroom. The revolver was not

loaded and was wrapped in cosmoline treated paper in its

original box. One bullet was missing from the box.

Laboratory tests indicated that the injury was in-

flicted at the base of the stairs about twenty feet from

where the body was located, that the victim had neither

handled nor discharged a firearm, and that the bullet found

in the basement was fired from the pistol that the appel-

lant surrendered to the officers.

Autopsy of the body revealed an absence of gross pow-

der wounds or residue on the victim’s shirt indicating the

gun was at least three feet away from the body when it

was discharged. The bullet entered the chest and trav-

eled downward at a 30 degree angle. Death was caused

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by a gunshot wound between 8:30 a.m. and 11:00 am.

on July 11, 1974.

Detectives interviewed the appellant at 10:00 a.m. on

July 12, 1974. She related the following:

At approximately 10:00 a.m. on July 11, 1974, the vic-

tim came to her home on foot. He came in the house and

went into the bedroom with her and helped her make up

the bed. He inquired about a gun that she owned and

said he wanted to take this gun with him to his father’s

house. She loaded the gun and together with the victim

proceeded to walk down the stairs to the basement to go

out into the back of the house to fire the gun into an em-

bankment. As they were proceeding down the stairway

into the baserent, the victim turned and reached out for

the gun and it accidentally hit a support beam and fired.

At this point she blacked out. When she regained con-

sciousness, the victim was dead. She then went upstairs,

placed the revolver on the kitchen table, received a phone

call from a relative in Rome, Georgia, concerning a sister

who was ill, and blacked out again. Upon waking up, she

took the shells out of the revolver and placed them in the

shell box. She cleaned the revolver and put it back in

its original box.

After that she went downstairs and put the victim’s

body on some large plastic sheets and bound him up with

the plastic, some garbage bags, and some nylon stockings.

She dragged the body to the place of concealment and

covered it with the cardboard boxes. She then cleaned

the blood from the basement floor with ammonia, washed

the throw rug at the base of the stairs in the washing

machine, and then cleaned herself. At some point after

the shooting her sister and her sister’s husband came by

relative to visiting her sister in Rome but she did not want

to go with them. She stated that she and the victim loved

each other.

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At approximately 2:00 a.m. on July 13, 1974, detec-

tives again questioned the appellant. At this time she

related that the victim had not come to her home on foot,

but rather that he had called her and she had pi-ked him

up at Belmont Hills Shopping Center and he had lain

down in the front seat of the car so he would not be seen

by the neighbors. Again she related that they were going

down the basement stairs in order to fire the gun in the

back yard. She stated that the victim reached around

with both hands and attempted to grab the gun from her,

and she became afraid as she pulled back and fired the

weapon. Appellant stated that she believed that the vic-

tim wanted the gun to fire.

An Atlanta police officer had purchased the weapon

for the appellant and showed her how to use the weapon.

Sometime about midday on July 11, 1974, Lewis Rea-

gin talked with appellant on the phone about thirty min-

utes about some church business. He noticed nothing

unusual regarding her speech or manner.

Elaine Calhoun, widow of the deceased, testified that

the conduct between appellant and her husband had be-

come unusual in the last six months in that appellant,

when present with the deceased, would often stare at him

in a very uncommon manner.

The defense presented the following evidence:

The appellant testified in her own behalf that she

had been acquainted with the victim and his wife for ap-

proximately ten years through membership in the church.

She obtained the revolver from the police officer who had

purchased it for her. She planned to make a gift of the

revolver later to this same officer because he was sup-

posed to move.

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She related that on Thursday morning, July 11, 1974,

she was working by herself at her home when the victim

called and asked her to pick him up at Belmont Hills Shop-

ping Center. When they arrived at her home, the victim

volunteered to help her make the beds, and he noticed

some packages she had wrapped for a luau and inquired

as to whether or not she had obtained the gun. She stated

that she had and showed it to him. He showed her how

to load it. She and the victim were walking down the

stairs into the basement. As she reached approximately

the second or third step from the bottom he startled her

by reaching back with his left hand and taking hold of

her right hand, the hand which had the gun. She was

not expecting him to do this and when he did, she pulled

back and the gun went off. She had scratches on the

back of her hand. She slipped on the step but was not

sure whether she slipped just before or just after the gun

fired. She heard the noise and as she reached for him,

blood gushed all over her back, her hair, her mouth, and

her neck. As he fell, she caught him and, under his

weight, managed to lay him down at the bottom of the

kitchen steps. Blood appeared to be everywhere and she

lost consciousness. She could not remember what hap-

pened once she got the victim to the floor. She thought

about calling an ambulance, but she was in shock, and the

next thing she could remember was that the telephone was

ringing and she went upstairs to answer it. When she

answered the telephone, it was her brother-in-law who

told her that her sister in Rome had been injured. After

that, she did not remember what happened. She remem-

bers sitting down on the floor and she remembers seeing

blood all over her. Further, she remembers thinking

about the victim and that he did not like blood. All she

could think about at that point was cleaning the blood off

the victim. She then removed his pants and washed the

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blood off his legs. After that, she put a piece of plastic

under his head to keep it out of the blood. She raised

him up and put plastic under him to get him out of the

blood, moved him, and washed the bloody rug and bloody

pants. All the blood did not wash out of the pants. Af-

ter she moved the body she went back upstairs, took a

shower and washed her clothes. The body was placed

under some boxes in the basement after having plastic

bags put around it. Appellant’s other sister came by the

house on her way to Rome and helped the appellant go to

the bedroom and lie down. When appellant’s son and hus-

band came home that evening, she remembered that there

was something she needed to tell them. She could not

remember what it was, she had a feeling that she was

crushed, and that there was something she was supposed

to do. She knew that she needed to start supper. She

could not open the basement door and could not go down

to the basement but she did not know why. She and her

husband went out to dinner and her son went to a ball :

game. Her husband went to a civic club meeting. She was

in the house alone for approximately two hours that eve- :

ning. Something caused her to awaken after she and her

husband had gone to bed that evening. It appeared to her

like it was a loud noise and the vision of the victim stand-

ing between the posts like he appeared that morning came

to her mind. She immediately told her husband that

there was a body in the basement and he did not believe

it. She became hysterical. There was some discussion

about what to do. She told the police that when the shot

was fired, she heard a ringing and she could still hear the

ringing. She did not know where the ringing noise came

from but she thought the gun must have hit the post and :

that caused it. ;

Appellant had a series of appointments with Dr. Shel-

don Cohen, an Atlanta psychiatrist. His evaluation of her

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was as follows: “My impression was that this woman, af-

ter the shooting experienced considerable psychological

shock and she behaved in some ways in sort of an auto-

matic way. That is what you might think of as a splitting

of her mind and of her consciousness. She knew that

something should be done, but apparently he died rather

quickly; and yet at the same time she was concerned about

the mess that was made and felt this had to be straight-

ened out . . . So she unconsciously, I think, put part of

this out of her mind and went about behavior in a sem-

blance of normality. Now this would be consistent with

my impression of her and the impression that the com-

puter gave me of her habits and the impression that Dr.

Knopf got from his two and a half hours with her, and

that is that she has great need to be accepted, to appear

to be a very good person, to be normal and so forth.

Appellant’s husband testified that he had returned

home from work on Thursday, July 11, 1974, at approxi-

mately 5:00 p.m. He related that he noticed nothing un-

usual or particular about the conduct of his wife that

evening until later on in the evening when she seemed

distressed and began to inquire of him as to whether or

not he would stand by her no matter what. At this time

appellant told her husband there was a body in the base-

ment. After Mrs. Calhoun called in search of her miss-

ing husband, appellant’s husband went back and asked

her and she said, “It’s Lee’s body that is in the house.”

A number of character witnesses testified to appel-

lant’s good reputation in the community prior to July 11,

1974. Held:

1. Appellant’s first four enumerations of error are

based on the general grounds. Considering the evidence

admitted in court as summarized above, enumerations of

error on the general grounds are without merit.

AAD ae A A RNS OURS EER ORT ET NS i OE

2. In enumerations of error numbers 7, 8, and 18 ap-

pellant objects to the trial court permitting the widow of

the deceased to sit at the prosecution’s counsel table dur-

ing the course of the trial.

The conduct of the trial of any case is necessarily con-

trolled by the trial judge, who is vested with a wide dis-

cretion and in the exercise of which an appellate court

should never interfere unless it is made to appear that

wrong or oppression has resulted from its abuse. Atlanta

Newspapers v. Grimes, 216 Ga. 74 (114 SE2d 421) (1960);

Walker v. State, 132 Ga. App. 476 (208 SE2d 350) (1974).

It is only in cases where there has been no showing

by the state that a witness’ presence at the counsel table

was necessary for an orderly presentation of the case that :

the appellate courts of this state have found an abuse of

discretion in this situation. Walker v. State, supra.

In this case the prosecutor stated in his place that

the presence of the widow in the courtroom would be

necessary to assist the state in the orderly presentation of

the case. The record is devoid of any emotional display

by Mrs. Calhoun which would have in any manner preju-

diced the appellant’s right to a fair trial. No improper

conduct on her part was ever brought to the attention of

the court.

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Enumerations of error numbers 7, 8, and 18 are without

merit.

MORAL, TROL Neh Ht NTIS AEA ate Mey

3. In enumerations of error numbers 9, 10, 32, and

35 appellant alleges the court erred in failing to charge

the law relating to the defense of insanity.

We note that appellant’s counsel at trial made no

request for a charge relating to the defense of insanity

and made no objection to the trial court’s omission of such

charge.

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Pertinent to these enumerations was the testimony

of the appellant and her psychiatrist.

Appellant testified that in the afternoon and evening

of July 11, 1974, she could not remember what it was that

was pressing on her mind. Her psychiatrist testified that

his impression of her “was that this woman, after the

shooting experienced considerable psychological shock and

that she behaved in some ways in sort of an automatic

way. That is what you might think of as a splitting of her

mind, of her consciousness. Certainly she knew that this

man had been shot, that she had shot him. She knew that

something should be done, but apparently he died rather

quickly; and yet, at the same time she was concerned about

the mess that was made and felt this had to be straightened

out. And she was also concerned about—‘Gee, I don’t

want to upset my husband and son.’ So she unconsciously,

I think, put part of this out of her mind and went about

behavior in a semblance of normality.”

When asked whether or not the shock of seeing Mr.

Calhoun shot would be sufficient to cause her, from around

one o'clock in the afternoon until about 11:30 that night,

not to be able to recall the incidents of that morning the

psychiatrist responded: “I would say this is possible, but

I certainly don’t know whether this was so or not.” He

stated it was a medical possibility.

None of the testimony concerning appellant’s loss of

memory relates to the murder charge even remotely or

to any time prior to the death of the victim.

Although appellant testified she blacked out twice after

the shooting, her testimony indicates she did not forget the

body in the basement until after she had taken some of the

victim’s clothes to wash, cleaned the gun and put it away,

wrapped the body, dragged it to the side of t's basement,

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covered it with boxes, cleaned the blood from the base-

ment floor with ammonia, washed the throw rug that had

blood on it, washed her bloody clothing, and had taken

a shower. It was only after Mrs. Calhoun called inquiring

about her husband that she recalled that the body was in

the basement.

The hiatus in memory was after all acts of concealment

were complete and although possibly applicable to a failure

to report the death from the time of its concealment until

her memory returned at the time of Mrs. Calhoun’s call,

it in no way relates to the acts of concealment or indicates i

any delusional compulsion as to the concealment which t

overmastered her will to resist committing the crime.

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The evidence did not demand that the trial judge

charge the jury on Code Ann. § 27-1503 (Ga. L. 1952, p.

205; 1972, p. 848), or the general principles of law relating

to the question of insanity. See Massey v. State, 222 Ga.

143, 147 (149 SE2d 118) (1966); Floyd v. State, 143 Ga. 286

(84 SE 971) (1915); Garrett v. State, 126 Ga. App. 83, 84

(189 SE2d 860) (1972).

4. In enumerations of error numbers 11 and 12

appellant alleges the court erred in charging the following:

“Tf you find a homicide is proved to have been committed

in this case by this defendant with an instrument which

if you find was, in the manner in which it was used upon

the occasion in question, a weapon likely to produce death,

the law from the use of such weapon in that manner pre-

sumes malice and the intent to kill. It is not incumbent

upon the accused to prove an absence of malice if the evi-

dence for the prosecution shows facts which may excuse

or justify the homicide. If the homicide was in your

opinion unlawful, and if there was present the intent to

kill and malice, the offense would be murder, and it would

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be your duty to find the defendant guilty of the crime of

murder.”

These passages were followed by instructions by the

court that: “It is not incumbent upon the accused to prove

an absence of malice if the evidence for the prosecution

shows facts which may excuse or justify the homicide.

Ladies and gentlemen, I charge you that in this case the

accused is not required to produce evidence of mitigation,

justification, or excuse on her part to the crime of murder

where the mitigation, justification, or excuse is shown by

the evidence on the part of the State. It is not required

of the accused to prove an absence of malice if the evi-

dence for the State shows facts which may excuse or justify

the homicide.”

These instructions correctly state the law and did

not place the burden on the appellant to prove or present

evidence to justify or mitigate the homicide. These enu-

merations of error are without merit.

5. Appellant in her 13th enumeration of error alleges

that the trial court erred in the following charge: “I

charge you that if you believe, and believe beyond a rea-

sonable doubt, that the defendant, Alice Elizabeth Nunnally,

did in this County in the State of Georgia commit the

offense of murder by unlawfully and with malice afore-

thought kill and murder one Lee Calhoun, a human being,

by shooting him with a .38 caliber pistol, thereby inflicting

upon the said Lee Calhoun mortal wounds from which he

died, contrary to the laws of said State, and good order,

peace and dignity thereof, then you would be authorized

to convict the defendant of the offense of murder as

charged in this bill of indictment.”

The thrust of appellant’s position here is that the use

of the preposition “by” was error in that it would cause

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the jury to believe that the only thing that they must find

in order to return a verdict of guilty as to Count 1 of the

indictment was that the victim was shot with a .38 caliber

pistol from which wounds he subsequently died.

Recently, in the case of State v. McNeill, 234 Ga. 696

(217 SE2d 281) (1975) this court quoted with approval the

following language: “In Brown v. Matthews, 79 Ga. 1 (4

SE 13), this court said: ‘A charge, torn to pieces and

scattered in disjointed fragments, may seem objectionable,

although when put together and considered as a whole, it

may be perfectly sound. The full charge being in the

record, what it lacks when divided is supplied when the

parts are all united. United they stand, divided they fall.’

This is still sound law.”

The charge considered in its entirety can not be con-

strued to lead the jury to believe that they could return

a verdict of guilty of murder if they should find only that

the victim was mortally wounded by a shot fired from a

.38 caliber pistol.

Enumeration of error number 13 is not meritorious.

6. In her 16th and 17th enumerations of error ap-

pellant alleges that the trial court erred in charging the

jury as follows: “That the acts of a person of sound mind

and discretion are presumed to be the product of the per-

son’s will, but the presumption may be rebutted. That a

person of sound mind and discretion is presumed to intend

the natural and probable consequences of his acts, but the

presumption may be rebutted.”

The quoted portions of the charge are correct and rele-

vant statements of well established legal principles codi-

fied in the laws of this state. Code Ann. § 26-603 (Ga. L.

1968, pp. 1249, 1269) and § 26-604 (Ga. L. 1968, pp. 1249,

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1269). The trial court correctly charged the jury with

these principles of law.

7. In enumerations of error numbers 26, 27 and 30,

appellant alleges the trial court erred in failing to charge

defense requests to charge dealing with the presumption

of innocence and reasonable doubt.

The trial court charged as follows: ‘Every person is

presumed innocent until proved guilty. No person shall

be convicted of a crime unless each element of such crime

is proved beyond a reasonable doubt. The burden of proof

rests upon the state to prove each element of the offense

charged beyond a reasonable doubt. The state, however,

is not required to prove the guilt of the defendant beyond

all doubt. Moral and reasonable certainty is all that can

be expected in a legal investigation.

“A reasonable doubt means just what it says. It is

a doubt of a fair-minded, impartial juror honestly seeking

the truth, not an arbitrary or capricious doubt; but it is

a doubt arising from a consideration of the evidence, from

a lack of evidence, or from a conflict in the evidence. If

after giving consideration to all of the facts and circum-

stances of the case, your minds are wavering, unsettled

and unsatisfied, then that is the doubt of the law and you

should acquit. But if that doubt does not exist in your

minds as to the guilt of the defendant, then you should

convict.”

The court adequately presented the law as it relates

to the presumption of innocence and the court’s failure to

charge the appellant’s requests was not error.

8. In enumerations of error numbers 28 and 29 the

appellant alleges the trial court erred in the instructions

given on good character and in refusing to give a requested

instruction.

Al5

The requested charge was: “I charge you, gentlemen

of the jury, that evidence of good character is a substantive

fact, and like any other fact tending to prove innocence,

it may raise a reasonable doubt of guilt sufficient to au-

thorize acquittal.”

The complete charge given by the trial court relating

to the issue of good character was as follows: “Now, ladies

and gentlemen, the court charges you, in criminal cases

the defendant is permitted to offer evidence as to general

good character. Evidence of good character may be of

itself sufficient to create a reasonable doubt as to the guilt

of the accused, where otherwise no reasonable doubt would t

exist, or when considered in connection with the other '

evidence in the case, it may be sufficient to create such

a doubt. Nevertheless, if the jury should believe beyond a

reasonable doubt that the defendant is guilty as charged

in the indictment, they would be authorized to convict, not-

withstanding evidence of general good character. Good

character affords no valid excuse or justification for com-

mitting a crime. Good character, like any other fact tend-

ing to establish innocence, is a substantive fact and should

be so regarded by the jury along with other evidence in

the case in determining whether the defendant is guilty

beyond a reasonable doubt.”

LIL TOLER IELTS

Lie REE DUE Ep erage oes

Considering the entire charge as it relates to the issue

of good character the trial court did not err in giving the

charge and denying the requested charge. The charge

clearly instructed the court that good character in and

of itself may be sufficient to create a reasonable doubt

as to the guilt of the accused.

2 TLL RELA DRE ETRY ANE

Enumerations of error numbers 28 and 29 are without

merit.

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9. In enumeration of error number 34 appellant avers

the court erred in its charge as it relates to concealing

death by failing to advise, charge and make clear to the

jury, that the crime of concealing death must not only in-

clude the act or acts set forth in Code Ann. § 26-1104 (Ga.

L. 1968, pp. 1249, 1277), but that in addition thereto there

must be present an intent to commit the crime of conceal-

ing death.

The trial court charged the offense of concealing death

as follows: “Now ladies and gentlemen, the charge in

count two of this indictment being that of concealing death,

I will give you the definition of that offense as codified in

the Criminal Code of the State of Georgia and defined in

Ga. Code Ann. § 26-1104. I charge you the following: A

person commits concealing death when he, by concealing

the death of any other person, hinders a discovery of

whether or not such person was unlawfully killed.”

Thereafter the court charged: ‘Ladies and gentlemen,

I charge you certain definitions which are codified as defi-

nitions in the Criminal Code of the State of Georgia. In

this connection I charge you, ladies and gentlemen, that a

crime is a violation of a statute of this state in which there

shall be a union of joint operation of act, or omission to

act, and intention. That a person shall not be found guilty

of any crime committed by misfortune or accident where it

satisfactorily appears there was no criminal scheme or

undertaking, or intention.”

The instruction clearly charges that the act to be crim-

inal must be intentional rather than non-volitional.

This enumeration of error has no merit.

10. In enumerations of error numbers 14 and 15 ap-

pellant alleges the court erred in giving the following

charges to the jury: ‘An admission, as applied to a crim-

Al7

inal case, is a statement of fact or circumstance by the

defendant, not amounting to a confession of guilt, but

tending to prove the offense and from which the guilt may

be inferred,” and “An incriminating statement is one made

by the defendant which tends to establish his guilt, or

tends to disprove some defense set up by him or one from

which together with other facts, if any are proven, guilt

may be inferred.”

Challenge to both of these instructions was considered

in Fowler v. State, 187 Ga. 406 (1 SE2d 18) (1939) and

rejected. These enumerations are without merit.

11. After considering appellant’s allegations of error

concerning specific portions of the trial court’s charge, the

refusal to give specific requested instructions, and after re-

viewing the evidence and the trial court’s charge, we con-

clude that enumerations of error numbers 5 and 6 are with-

out merit. The enumerations contend that the charge of

the court was not adjusted to the evidence, was confusing,

misleading, and erroneous and was violative of the Fifth

and Fourteenth Amendments of the Constitution of the

United States because it violated due process of law by

placing the burden of disproving guilt on the appellant.

12. In enumerations of error numbers 19, 20 and 21,

appellant objects to the admission of testimony concerning

her statements in her home at approximately 5:00 a.m.

on July 12, 1974, and while in custody at 10:30 a.m. on July

12, 1974, and at 2:00 a.m. on July 13, 1974.

At the time of appellant’s statements at 5:00 a.m. on

July 12, 1974, the police officers were unable to ascertain

that a crime had occurred because they had not been able

to locate the body, and neither the appellant nor her hus-

band was then under suspicion of anything. The appellant

was not in custody but on the contrary was in the comfort

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of her own home with her husband and grown son present.

This is a completely different setting from that considered

by the United States Supreme Court in Miranda v. Arizona,

384 U.S. 436 (86 SC 1602, 16 LE2d 694, 10 ALR3d 974)

(1966) where the accused was an “in custody” suspect of

his police interrogators.

Testimony concerning the other statements of appel-

lant were admitted only after a hearing was held by the

trial court out of the presence of the jury in accordance

with Jackson v. Denno, 378 U.S. 368 (84 SC 1774, 12 LE2d

908) (1963). The trial court made a preliminary determi-

nation that warnings in conformity with the requirements

set down in Miranda v. Arizona, supra, were adhered to

and made a determination that the statements were vol-

untary and admissible for the jury’s consideration. There-

after they were submitted to the jury under appropriate in-

structions concerning admissions and incriminating state-

ments. His determination is supported by a preponderance

of the evidence as required by High v. State, 233 Ga. 153

(210 SE2d 673) (1974).

Enumerations of error numbers 19, 20 and 21 are not

meritorious.

13. In enumeration of error number 25 appellant al-

leges the court erred in allowing the testimony of a fire-

arms specialist as a rebuttal witness.

Calling an unlisted witness in rebuttal is not error.

Prevatte v. State, 233 Ga. 929, 930 (214 SE2d 365) (1975);

Eberheart v. State, 232 Ga. 247, 253 (206 SE2d 12) (1974).

14. Enumerations of error numbers 22, 23, 24, 31,

and 32 concern the trial court’s refusal to direct a verdict

of not guilty. There was evidence admitted in court from

which the jury could find every element of both offenses

and they were properly instructed including instruction

on = A

Alg

on circumstantial evidence. The evidence, or lack of it,

did not demand a verdict for the defendant on either

charge. These enumerations of error are without merit.

15. In enumeration of error number 36 appellant

pleads in the alternative that the court erred in not charg-

ing the jury on involuntary manslaughter.

As we read the testimony, the homicide was either

murder or accident. The trial court did not err in omitting

a charge on involuntary manslaughter and none was re-

quested at trial. Bonds v. State, 232 Ga. 694 (208 SE2d

561) (1974); Scott v. State, 210 Ga. 137 (2) (78 SE2d 35)

(1953) ; Sirmans v. State, 229 Ga. 743 (2,3) (194 SE2d 476)

(1972); Meadows v. State, 230 Ga. 471 (3) (197 SE2d 698)

(1973).

Judgment affirmed. All the Justices concur, except

Ingram, J., who concurs in the judgment only, and Jordan

J., who dissents.

ARGUED SEPTEMBER 9, 1975—Decipep NovEMBER 24, 1975—

REHEARING DENIED DECEMBER 15, 1975.

Murder, etc. Cobb Superior Court. Before Judge

Ravan.

Holcomb & McDuff, Robert E. McDuff, Terry E. Willis,

for appellant.

George Darden, District Attorney, B. Wayne Phillips,

Assistant District Attorney, for appellee.

6 RE” hee ap

A20

APPENDIX “C”’

IN THE SUPERIOR COURT OF COBB COUNTY

STATE OF GEORGIA

MOTION DOCKET 13757

INDICTMENT NO. 6385

MURDER

STATE OF GEORGIA

vs

ALICE ELIZABETH NUNNALLY

ORDER

MOTION FOR NEW TRIAL

The above stated matter having regularly come before

me and after hearing argument from the counsel for the

defendant and from the State and after a thorough review

of the record and transcript of the above-styled case, the

court finds as follows:

1.

The verdict was fully supported by the evidence.

2.

The verdict is not against the weight of the evidence.

oe i a le

.

»

A21

3.

The verdict is not contrary to law and the principles

of justice.

‘

The charge of the court was adjusted to the evidence

and was neither confusing, misleading or erroneous.

PR UNV REP Y

The charge of the court was not violative of the Fifth

and Fourteenth Amendments of the United States in that

it violated due process of law by placing a burden of dis-

proving guilt on the defendant.

The court recalls no circumstance or observation what-

soever in which the widow of the deceased displayed any :

unusual show of emotion or made any statement or out- t

burst which could have possibly influenced the jury. The

court exercised its discretion in allowing the widow of the

deceased to remain at the prosecution table, based upon

the statement by counsel for the state that Mrs. Calhoun’s

presence would assist the court in the orderly presentation

of its case. No improper conduct of Mrs. Calhoun was ever

brought to the attention of the court. Had the court been

informed of any display of emotion by Mrs. Calhoun or '

observed any such conduct, the court would have excluded

her from the courtroom.

7.

No evidence was elicited by the defendant or by the

state which suggested the defense of insanity at the time

of the commission of the crime. Further no requests were ;

made by the defendant for a charge on the principle of in- i

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sanity. The defendant contended that the shooting was

accidental and the defense of insanity was never raised by

the defendant during the trial of the case either by the

evidence or by argument of counsel.

For the reasons herein stated the Motion for New Trial

by the defendant, Alice Nunnally, is denied.

SO ORDERED this the 2nd day of June, 1975.

/s/ Howell C. Ravan

Judge, Cobb Superior Court,

Cobb Judicial Circuit

Presented by:

/s/ George W. Darden

George W. Darden

District Attorney

Cobb Judicial Circuit

A23

APPENDIX “D”

IN THE

SUPERIOR COURT FOR THE COUNTY OF COBB

STATE OF GEORGIA

MOTION DOCKET 13757

INDICTMENT NO. 6385

MURDER

THE STATE

VS

ALICE ELIZABETH NUNNALLY

MOTION FOR NEW TRIAL

GROUND 4

The court erred in charging the jury as follows:

“If you find a homicide is proved to have been

committed in this case by this defendant with an in-

strument which if you find was, in the manner in

which it was used upon the occasion in question, a

weapon likely to produce death, the law from the use

of such weapon in that manner presumes malice and

the intent to kill.” (T-490)

Movant avers that such charge was erroneous and in-

jurious to her because:

(a) It was confusing to the jury.

(b) It was misleading to the jury.

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A24

(c) That it effectively shifted the burden of proof

from the State to the defendant where the defense was af-

firmatively set forth. This charge is tantamount to a

charge that malice will be presumed from the commission

of a homicide with a deadly weapon and that the burden

rests upon the accused to show justification or mitigation.

The only evidence offered by the State to prove that the

appellant committed the homicide by the use of the deadly

weapon was accompanied by an explanation stating that

the death was an accident.

(d) That the charge as given did not state or estab-

lish any way by which the defense could overcome pre-

sumption of malice and intent to kill, but left the jury with

the impression that just a mere fact of the use of the deadly

weapon removed from the jury determination the issue of

malice and intent to kill. Under the charge given, if the

jury found that a weapon was used likely to produce death,

then the presumption of law was existent, and this alone

would authorize a verdict of guilty. The charge was tanta-

mount to saying that the jury must find that the instru-

ment was not a deadly weapon in order to find accident

which in this case finding that a loaded pistol is not a dan-

gerous weapon was a legal impossibility and was tanta-

mount to a direction of a verdict of guilty.

(e) Said charge was not adjusted to the facts of the

case.

(f) Said charge was violative of the Fifth and Four-

teenth Amendments of the Constitution of the United

States in that it violated due process of law by placing the

burden of disproving guilt not presumption of innocence

on the defendant.

A25

GROUND 5

The court erred in charging the jury as follows:

“If the homicide was in your opinion unlawful,

and if there was present the intent to kill and malice,

the offense would be murder, and it would be your

duty to find the defendant guilty of the crime of

murder.” (T-490)

Movant avers that such charge was erroneous and in-

‘ jurious to her because: ;

(a) That there was only one sentence between it and :

the preceding charge complained of stating that the law i

presumed malice and intent to kill and with malice having i

been previously defined as an unlawful intention to kill :

withcut justification it established in the mind of the jury

a duty to find the defendant guilty of the crime of murder. }

It further placed an intolerable burden upon the defendant :

to disprove the contention that she was guilty of murder. f

4

GROUND 6 F

The court erred in charging the jury as follows: :

“If you find a homicide is proved to have been 4

committed in this case by this defendant with an in- ;

strument which if you find was, in the manner in which i

it was used upon the occasion in question, a weapon

likely to produce death, the law from the use of such ;

weapon in that manner presumes malice and the in- 3

tent to kill. ;

It is not incumbent upon the accused to prove an ;

absence of malice if the evidence for the prosecution 4

shows facts which may excuse or justify the homicide. E

If the homicide was in your opinion unlawful, and if i

there was present the intent to kill and malice, the ;

t

—_ —_ =.

ee. SOIT BE BE IN SEE GE TIN TOES, tien

A26

offense would be murder and it would be your duty

to find the defendant guilty of the crime of murder.”

(T-490)

Movant avers that such charge was erroneous and in-

jurious to her because:

(a) It was confusing to the jury.

(b) That it was misleading to the jury.

(c) That it shifted the burden of proof to the defen-

dant.

(d) That it was in effect a charge of guilty and a

directed verdict.

(e) It was not adjusted to the facts of the case.

(f) Said charge was violative of the Fifth and Four-

teenth Amendments of the Constitution of the United

States in that it violated due process of law by placing the

burden of disproving guilt not presumption of innocence

on the defendant.

The reasons for the above set forth objections are

as follows:

Though the court in between the two charges previ-

ously complained of added a sentence: “It is not incum-

bent upon the accused to prove an absence of malice if

the evidence for the prosecution shows facts which may

excuse or justify the homicide.” (T-490). The court did

not go further to explain what it meant, if it was not in-

cumbent upon the accused to prove the absence of malice.

What must the defendant do to get rid of the presumption?

Nor did the court explain what legal effect the failure of

not proving the absence of malice would have in the case.

Such statement and sentence was in fact meaningless to

the jury and if anything instead of relieving the defendant

A27

of having to negate malice, really was telling the jury

that the defendant was in a hopeless situation of being

guilty. This is particularly true where the charge immedi-

ately preceding such statement stated that a death had oc-

curred on the occasion in question: “a weapon likely to

produce death, the law from the use of such weapon in

that manner presumes malice (and malice having been

defined as an unlawful killing previously in the charge) and

the intent to kill” and then immediately followed it with

“If the homicide was in your opinion unlawful, and if there

was present the intent to kill and malice (which the court

had already said was to be presumed where a deadly

weapon was to be used) the offense would be murder, and

it would be your duty to find the defendant guilty of the

crime of murder.” (T-490). There was no charge that

the court could give thereafter which could erase the

prejudged legal presumption of guilt of the defendant from

the minds of the jury after the jury has heard such a strong

charge against the defendant, without first correcting that

particular charge. For superimposed upon every charge

thereafter, which would relieve the defendant of the crime,

would be the presumption of malice and the presumption

of the intent to kill. The charge did not limit the presump-

tion by saying that it was rebuttable and as a matter of

fact as stated in the charge; that the law presumes it,

gives the impression that it was not rebuttable.

GROUND 7

The court erred in charging the jury as follows:

“T charge you that if you believe, and believe be-

yond a reasonable doubt, that the defendant, Alice

Elizabeth Nunnally, did in this county and State of

Georgia commit the offense of murder by unlawfully

and with malice aforethought kill and murder one Lee

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A28

Calhoun, a human being, by shooting him with a .38

caliber pistol, thereby inflicting upon the said Lee

Calhoun mortal wounds from which he died, contrary

to the laws of said State, and good order, peace and

dignity thereof, then you would be authorized to con-

vict the defendant of the offense of murder as charged

in this bill of indictment.” (T-493,)

Movant avers that such charge was erroneous and in-

jurious to her because:

(a) It was confusing to the jury.

(b) That it was misleading to the jury.

(c) That it was an erroneous charge.

(d) Said charge was violative of the Fifth and Four-

teenth Amendments of the Constitution of the United

States in that it violated due process of law by placing

burden of disproving guilt not presumption of innocence

on the defendant.

The reasons for it being misleading, confusing and er-

roneous are as follows:

Already earlier in the charge, the question of malice

was presumed by the court as a matter of law. See

Grounds 4, 5 and 6 above. In closing the charge to the

_ jury and in structuring the charge, the judge separated

the elements of unlawful and malice with the activity of

shooting with the phrase “kill and murder one Lee Cal-

houn, a human being” and then used the preposition “by”’

indicating that the determination of murder of Lee Cal-

houn was to be based upon only the elements that fol-

lowed the preposition “by”. The only elements that fol-

lowed the preposition “by” is “shooting him with a .38

caliber pistol thereby inflicting upon said Lee Calhoun

mortal wounds from which he died contrary to the laws

A29

of the State in good order, peace and dignity thereof.” It

omitted the question of malice and aforethought from the

consideration of the jury. Such charge should have read:

“Alice Elizabeth Nunnally did in this county and

state of Georgia commit the offense of murder by

killing one Lee Calhoun, a human being, by unlaw-

fully and with malice aforethought shooting him with

a .38 caliber pistol thereby inflicting upon said Lee

Calhoun mortal wounds from which he died.”

The charge as above phrased would then show all of ‘

the elements of murder after the prepositional phrase, not ;

leaving it to the jury for interpretation or supposition of

what the elements of murder consisted, and generating :

both a confusing, misleading and erroneous charge.

ba a al

— fe Pa Caan s

A30

APPENDIX ‘“‘E”’

IN THE

SUPERIOR COURT FOR THE COUNTY OF COBB

STATE OF GEORGIA

MOTION DOCKET 13757

INDICTMENT NO. 6385

MURDER

THE STATE

VS

ALICE ELIZABETH NUNNALLY

MOTION FOR NEW TRIAL

GROUND 14

The court erred in allowing the testimony of Lt. Sims

in the transcript concerning what he purportedly heard,

stated by Mrs. Alice Elizabeth Nunnally, as is shown in

the transcript as appears on pages 46 and 47 thereof.

Movant avers that the failure of the court to sustain

this objection and in fact overruling it (T-45), denied the

defendant of a substantial right, that of being warned that

she did not have to respond to any questions, nor was she

told that such information as given to the police by her

could be used against her, nor was she advised that she

had right of counsel. Such failure to give warnings at

this point, referred to as the Miranda warnings, denied

her of due process of law and the admission of the testi-

mony into the transcript of what she purportedly told Lt.

Sims was in error.

A31

GROUND 15

The court erred in allowing the testimony of both

Officer Brendle and Officer Ramsey into evidence con-

cerning the statements allegedly made by Alice Elizabeth

Nunnally to them on July 12, 1974, at 10:30 A. M. and on

July 13, 1974, at 2:00 A. M., in that as to the 10:30 A. M.

conversation, the defendant was led to believe that she

was under the suspicion of a lesser crime than that actu-

ally charged in order to induce her to talk to the police

officers was violative of her constitutional rights. (T-157).

Further, the discussions at 2:00 A. M. were violative of

her constitutional rights, more particularly the Fifth

Amendment of the Constitution of the United States, in

that the police officers had knowledge that Alice Eliza-

beth Nunnally, at that time had employed counsel, and

this was actual knowledge that they specifically had and

they attempted to take a statement at 2:00 A. M. in the

morning under these circumstances was violative of the

rights of the party to have counsel present putting im-

plied social pressure upon her not to ask for her counsel

in order to prevent bothering him at such hours in the

evening and was purposely calculated to procure an addi-

tional statement from Alice Nunnally outside the pres-

ence of her counsel, all in violation of the Fifth and Four-

teenth Amendment rights of the defendant as provided in

the United States Constitution and denied her due process.

(T-171).

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