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Biswas v. State5/10/2002
Madhu Biswas was indicted on two counts of murder, two counts of felony murder, and two counts of aggravated assault for the shooting deaths of his two adult sons. A jury found him guilty of two counts of voluntary manslaughter, as lesser included offenses of the malice murder counts, and convicted him of the remaining charges of felony murder and aggravated assault. The court sentenced Biswas to twenty-five years confinement. Biswas appeals from the denial of his motion for new trial, arguing that the trial court erred in allowing the testimony of his wife without advising her of the marital privilege, in allowing the state to comment on Biswas' failure to produce evidence, in instructing the jury on impeachment by prior contradictory statements and on the inference that may be drawn from the use of a deadly weapon, and in failing to charge the jury on the principle of retreat. He also argues that he was denied effective assistance of counsel. We affirm the conviction.
On appeal from a criminal conviction, the evidence is viewed in the light most favorable to the verdict. Paul v. State, 231 Ga. App. 528 (499 SE2d 914) (1998). We do not weigh the evidence or determine witness credibility but only determine whether the evidence is sufficient under Jackson v. Virginia, 443 U. S. 307 (99 SC 2781, 61 LE2d 560) (1979). The verdict must be upheld if any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt. Williams v. State, 233 Ga. App. 217 (1) (504 SE2d 53) (1998).
So viewed, the evidence shows that Biswas had lived in the United States for approximately fifteen years after moving from India . On the night of March 15, 1999, the police were called to Biswas' home, where they found the defendant's two sons lying on the floor with gunshot wounds. One son, Sujit Biswas, was already dead, and the other, Sujoy Biswas, died later that night at Grady Memorial Hospital.
Biswas was home and spoke with the police. Biswas told Detective John Paul Hughes that he arrived home from work at approximately 10:45 p.m. and found his front door open and his two sons, ages thirty and twenty-eight, lying on the floor bleeding; that he immediately ran to the Brookhaven MARTA station to call the police; and that there were no guns in the house. Detective Hughes noticed blood on Biswas' shoes and jacket.
A uniformed officer took Biswas to the DeKalb County Police Department, where Biswas was interviewed by Detective Scott Gassner. After waiving his Miranda rights, Biswas told Detective Gassner that he returned home from work to find his sons on the floor and "plenty of blood." He also told the detective that he did not touch his sons or anything in the house; that he had to call the police from the MARTA station because the telephone at his house did not work; that his wife had been in India since Novermber 1998; and that he had no idea why someone would want to hurt his sons.
While Biswas was at the police department, Detective Hughes obtained a search warrant for the home. There, police found a gun in a briefcase under Biswas' bed. They also found a box of bullets in the briefcase and determined that six were missing. According to Detective Hughes, Biswas became a suspect at that point in the investigation.
Detective Hughes proceeded to the police department, where he confronted Biswas. Detective Hughes testified: "I advised him that we found his gun, that it had blood on it, and at that time he advised me that he killed his sons." The detective informed Biswas of his Miranda rights again and began a taped interview. At trial, the state played the audiotape of the interview, in which Biswas told Detective Hughes that
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