Appellant was convicted of the malice murder of his stepfather and sentenced to life imprisonment. 1
He appeals the judgment of conviction, questioning the admission of his custodial statement and contending there was insufficient evidence of malice.
1. The State presented evidence that the victim was killed by a knife wound that penetrated his abdomen and chest. The victim also sustained entry and exit wounds from a small-caliber bullet in his heel, and stab wounds to his back and right wrist. Several eyewitnesses in the front yard of the victim's home testified that the sound of gunshots emanated from the home shortly after the victim and his wife had entered. The victim came limping to the front yard seeking transportation to obtain medical aid, and appellant, carrying a butcher knife, exited the house looking for the victim. When he found him, he stabbed him three or four times, and re-entered the house where he reported that he had killed the "m-----f----." Appellant spent the night at the home of his aunt, who testified that he told her he had killed the "son of a bitch." People inside the victim's home testified that the victim and appellant's mother had argued, and that the victim had struck his wife, who pulled a gun and fired four shots, one striking the victim in the heel. When the injured victim exited the home through the back door, appellant, armed with a knife, went out the front door. In a statement made to the GBI 12 hours after his arrest, appellant recounted his parents' fight and stated he had stabbed the victim once, having taken a butcher knife and run "head-on" into the victim. At trial, appellant denied having stabbed the victim.
Pointing to evidence that the victim's treatment of appellant's mother provoked appellant into stabbing the victim, appellant contends there was not sufficient evidence of malice to support his conviction for murder. "It is for the jury to determine whether any killing is intentional and malicious from all the facts and circumstances. [Cit.]" Blair v. State, 245 Ga. 611 (3) (266 SE2d 214) (1980)
. The evidence was sufficient to authorize the jury's decision that appellant was guilty beyond a reasonable doubt of the malice murder of his stepfather (Jackson v. Virginia, 443 U. S. 307 (99 SC 2781, 61 LE2d 560) (1979)), and evidence of anger is not, as a matter of law, a showing of the provocation necessary to set aside a finding of malice. Latimore v. State, 262 Ga. 448
, 450 (421 SE2d 281
2. Contending that he did not make a knowing and intelligent waiver of his constitutional rights, appellant maintains the trial court erred when it admitted his custodial statement into evidence. At the Jackson v. Denno (378 U. S. 368, 84 SC 1774, 12 LE2d 908 (1964)) hearing, evidence was presented that appellant was advised of his rights under Miranda v. Arizona, 384 U. S. 436 (86 SC 1602, 16 LE2d 694) (1966), and stated he understood them when he was awakened from his sleep and arrested at his aunt's home at 3:00 a.m. A GBI agent reiterated the warnings to appellant at 4:15 a.m. at the police station. While the agent initially testified at the suppression hearing that appellant was coherent and did not smell of alcohol at 4:15 a.m., the agent admitted that he had previously testified that he had smelled alcohol on appellant. The agent also stated at the hearing that appellant's speech was slurred and his eyes were red at 4:15 a.m., and admitted appellant could have been under the influence of alcohol at that time. The agent admitted he was not sure whether appellant was affected by the ingestion of alcohol. Because appellant expressed a desire to sleep and the agent recognized appellant's fatigue, the agent refrained from questioning him, but had him execute a waiver of rights form. At 3:00 p.m. that day, the agent reinitiated conversation with appellant by asking him if he recalled the Miranda rights read to him earlier that morning. The agent transcribed the statement then made by appellant and subsequently used against him. Appellant, who could not read or write, testified that he had not used drugs or alcohol the day of the homicide, that he had no recollection or understanding of the rights purportedly read to him, that he signed the waiver form after being told it would help his case, and that he would not have spoken with the GBI agent had he known he did not have to do so. While expressing its desire that the jury not see the statement, the trial court overruled the motion to suppress.
C. Paul Bowden, District Attorney, Melinda I. Ryals, Assistant District Attorney, Michael J. Bowers, Attorney General, Susan V. Boleyn, Senior Assistant Attorney General, Marla-Deen Brooks, Assistant Attorney General, for appellee.