BROWN v. THE STATE
S90A0265
Supreme Court of Georgia
May 10, 1990
260 Ga. 153 | 391 SE2d 113
[m]alconduct, fraud, or irregularity by any primary or election official or officials sufficient to change or place in doubt the result of the primary or election.
The trial court found no misconduct, and, in addition, ruled that, even assuming misconduct had occurred, Johnson had failed to carry his burden of showing that the misconduct was “sufficient to change or place in doubt the result of the . . . election,” id.
Pretermitting a decision whether any misconduct occurred, we conclude that Johnson failed to show that the allegеd misconduct impacted on the number of voters necessary for Johnson to carry his burden of showing the alleged misconduct was sufficient to change or place in doubt the result of the election. See
Judgment affirmed. All the Justices concur.
DECIDED MAY 10, 1990.
Joyner & Joyner, Gordon L. Joyner, for appellant.
Adams & Adams, Charles R. Adams, Cynthia Trimboli Adams, for appellees.
S90A0265. BROWN v. THE STATE.
(391 SE2d 113)
PER CURIAM.
Appellant, James Wayne Brown, age sixteen, lived with his mother, Joan Brown, at the time of her death. He was convicted of her murder and sentenced to life imprisonment. We affirm.1
When construing the evidence in favor of the verdict, the jury could have found the following facts:
On Sunday, October 16, 1988, the victim was reported missing. Her billfold and car keys were also missing. Six days later, her partially decomposed body was discovered in a wooded area approximately three hundred feet from her home. She was wearing the same
Over a ten-week period prior to Ms. Brown‘s death, appellant had become romantically involved with Ms. Patty Neely, who was twenty-four years old. The appellant‘s mother strongly disapproved of this relationship, and this had angered appellant. Witnesses heard him say that, “he just wanted to kill her because of it“; that, “he would just like to feel [a metal pipe in his possession] hit up against her head“; and that, “he‘d like to put his hands around her throat and choke her.”
On the day of Ms. Brown‘s disappearance, appellant had attempted to obtain possession of a gun from several individuals, using various pretexts. Between 9:00 to 9:30 p.m., he obtained possession of a handgun with nine shells from Mr. Willie Curtis. Appellant returned the gun to Curtis sometime after 11:00 p.m.; five of the shells had been fired. Appellant initially claimed he had shot the gun in the air; however, after Curtis had questioned him repeatedly as to what he had done with the gun, appellant responded that, “[t]hey can‘t prove nothing.”
Forensic evidence established that a bullet recovered from the victim‘s body had been fired from this gun and that human blood was present on apрellant‘s tennis shoes. Also, hair taken from the carpet in the back of the automobile appellant was driving matched Ms. Brown‘s hair, and carpet fiber recovered from her clothing matched carpet fiber taken from the car.
Other evidence will be reviewed insofar as is necessаry in order to resolve the enumeration of errors raised.
1. In his first enumeration of error, appellant argues the trial court erred in denying his motion for directed verdict of acquittal, in that the circumstantial evidence failed to exclude every other reasonable hypothesis excеpt that of his guilt.
The evidence establishing appellant as the perpetrator of the murder, particularly the forensic evidence noted, was sufficient to еxclude every reasonable hypothesis except that of the appellant‘s guilt.
Circumstantial evidence must exclude only reasonable hypotheses; it need not exclude every inference or hypothesis except that of the defendant‘s guilt. White v. State, 253 Ga. 106 (1) (317 SE2d 196) (1984); Robinson v. State, 168 Ga. App. 569 (1) (309 SE2d 845) (1983). Viewing the evidence of the instant сase in a light most favorable to the verdict, we conclude that the jury could have found that it excluded every reasonable hypothesis except that of the defendant‘s guilt,
OCGA § 24-4-6 ; Nicholson v. State, 249 Ga. 775 (1) (294 SE2d 485) (1982), and that the jury could have found [appellant] guilty of the crime of murder beyond a reasonable doubt, Jackson v. Virginia, 443 U. S. 307 (99 SC 2781, 61 LE2d 560) (1979). Smith v. State, 257 Ga. 381, 382 (359 SE2d 662) (1987).
2. Appellant argues that the superior court lacked jurisdiction of this case because the juvenile court first exercised jurisdiction and failed thereafter to conduct a transfer hearing. We find no merit in this contention.
Since no petition alleging delinquency was filed in juvenile court, no transfer hearing in that сourt was required. Longshore v. State, 239 Ga. 437 (238 SE2d 22) (1977) and cits.
3. In his third enumeration of error, appellant argues that the trial court erred in denying his motion for mistrial based upon the prosecutor‘s presentation to the jury of prejudicial matters inadmissible in evidence.
Appellant based his motion for mistrial on the fact that in cross-examining a defense witness who had given testimony concerning actions on his part after the victim‘s death, the prosecutor asked the witness if he had searched for any bodies other than the body of the victim. Upon defense counsel‘s objection, bench conferences were held. During these conferences, defense counsel stated that appellant in fact had not made the statement attributed to him concerning the search for another body. The prosecutor stated that his questioning of the defense witness concerning the search for another body was based upon statements made by a law enforcement officer who was present during the search. The trial court ruled that the prosecutor could call the law enforcement officer as a witness, but that he could not engage in further questioning of the defense witness on this subject. The prosecutor did not call the officer as a witness, and this was the basis for appellant‘s motion for a mistrial. The trial court denied the motion on the ground that appellant did not request any corrective action at the time of the objection. We find no error.
4. In his fourth enumeration of error, appellant argues that the trial court erred in not allowing full impeachment of Willie Curtis.
Appellant had maintained that Willie Curtis, who had given appellant the weapon and then reacquired possession of it after the victim‘s death, was involved in the murder. On cross-examination, Curtis testified that he had never been in possession of any оther guns, nor had he ever pointed any other guns at other people. The defense subsequently called a rebuttal witness. This witness testified he had seen Curtis in possession of another gun. When defense counsel said, “Well, tell us about it,” the prosecutor raised an objection concerning the prоof of criminal convictions through certified copies thereof; the trial court overruled the objection. The witness then proceeded to give testimony concerning him and Curtis “fighting over a car about four years ago.” The trial court then ruled that defense counsel could ask the witness if hе had ever seen Curtis with a gun, “but that‘s as far as you can go.”
Although “a witness may be impeached by disproving the facts testified to by him,”
The trial court allowed the prosecutor to cross-examine this witness as to their prior encounters. In the course of examining the witness, it was established that the prosecutor had seen the witness in the Bartow Superior Court and that the witness was with an attorney there. Since the prosecutor represents the State in Bartow County, as well as in Gordon County, appellant argues that this line of questioning created the impermissible inference that the witness was a party to criminal proceedings in Bartow County, and thus constituted an unauthorized impeachment. Although we agree that this questioning may well have created the impеrmissible inference appellant suggests, appellant made no proper objection and requested no curative action. Therefore, no reversible error appears.
6. In his sixth enumeration of error, appellant argues that the trial court erred in admitting an 8” x 10” color photograph showing a close-up of the remains of the victim‘s face after extensive animal and insect damage.
In this regard, the trial court admitted seven photographs showing the condition and position of the victim‘s body. A grisly photograph of the victim‘s face was taken after her body wаs turned over. This photograph shows the decomposition and insect and animal infestation of her face. The admission was over the objection that the prejudicial effect outweighed its probative value.
Appellant argues that this photograph was inadmissible under Brown v. State, 250 Ga. 862, 867 (5) (302 SE2d 347) (1983), as interpreted in Roper v. State, 258 Ga. 847, 852 (3) (375 SE2d 600) (1989). We disagree.
Appellant‘s defense rested on the hypothesis that shortly before its discovery, approximately one week after the victim‘s death, someone in an automobile matching the description of Curtis’ car placed the victim‘s body at the location in which it was found; however, the photograph established the degree of decomposition, as hastened by animal infestation, and tended to rebut that hypothesis.
7. In his seventh enumeration of error, appellant argues that the trial court erred in denying him funds to hire an independent psychiatrist. We disagree.
Where there is a preliminary showing that the defendant‘s sanity is likely to be a significant factor at trial, Ake v. Oklahoma, 470 U. S. 68 (105 SC 1087, 84 LE2d 53) (1985), holds that the state is required to provide the indigent defendant with the assistance of a psychiatrist in preparing his defense. Lindsey v. State, 254 Ga. 444, 448-449 (330 SE2d 563) (1985). The defendant does not have the right to choose a psychiatrist of his personal liking or to receive funds to hire his own. State v. Grant, 257 Ga. 123, 126 (2) (355 SE2d 646) (1987).
Judgment affirmed. All the Justices concur, except Weltner, Bell, and Fletcher, JJ., who dissent.
FLETCHER, Justice, dissenting.
I respectfully dissent as to Division 6 and the judgment of the majority opinion.
The trial court admitted seven color photographs showing the condition and position of the victim‘s body after its discovery in a wooded arеa. Appellant objected to the admission of only one of these photographs on the grounds that its prejudicial effect outweighed its probative value.
This grisly photograph, depicting the mutilation of the victim‘s face through decomposition and animal and insect infestation, is spectacularly gruesome and is clearly not evidence essential to the proof of the state‘s case. Ramey v. State, 250 Ga. 455, 457-58 (298 SE2d 503) (1983) (Weltner, J., dissenting). Rather, it shows the ashen, partially skeletal remains of the victim‘s skull with maggots around the socket where her left eye used to be and around other portions of her heаd.
The trial court admitted the photograph along with others of her body as it understood “these are different views of the body at the scene“; however, in my opinion, its introduction is so prejudicial and so inflammatory as to constitute reversible error.
The material facts the State contends this рhotograph establishes not only could have been proven by other witnesses available to the State, including the person who discovered the body and the investigating officers, but were in fact established by the testimony of the pathologist who performed the autopsy. Therefore, the only purpose for the introduction of the photograph appears to have been to inflame the jury both during the trial and during its deliberation. Fundamental fairness demands more from our system of justice, therefore, I would reverse.
I am authorized to state that Justice Weltner and Justice Bell join in this dissent.