*1 385 Appeals Atkins, Id. The two Louisiana cases the Court cited supra, involved factual situations which the trial courts mo- denied suppress. appellate sup- tions to courts found that records ported the trial court’s that the consents decisions written to search (La. car[,]” 1299, “his house and State v. Williams 353 SE2d 1303 1977), (La. trailer[,]” Cormier, 1269, and “his State v. 438 SE2d 1274 1983) freely voluntarily made. There no lower court such ruling in this case. questions credibility
The trial court’s decision on of fact and at a suppression hearing accepted clearly must be unless erroneous. White (336 777) (1985). 210, 255 212 Ga. trial court this case did not consider nor decide whether limited consent ranger smokehouse, search after the and Russell had “conducted investigation,” illegal curtilage [the] a le- transformed search into gal majority search. The raised the issue of consent for the first time opinion. argued in its court, never, The consent issue was trial before the upon court, error, enumerated as an ruled briefed argued by party nor either before court. review.” 1983 Supreme Georgia Court is “a court Consti- jurisdiction tution, VI, VI, Art. Our Sec. Par. II. allows us to correct jurisdiction errors made the lower courts. We do rule not have upon issues have not been decided the trial court. always “right We can affirm if a trial court’s decision it is for We are authorized to reverse court’s a trial decision reason.” upon by based on an issue that was not ruled nor enu- court merely majority merated as error because a court of this decides may “wrong be for reason.” Gregory I am authorized to state Justice Bell and Justice join in this dissent. 23, Decided June July 1988. denied
Reconsideration Roger Attorney, Angela Byne, Queen, G. District Arkin Assis- Attorney, appellant. tant District for
George appellee. Weaver, Weaver, W. Brenda S. v. THE CARVER STATE. 471) Presiding Justice.
Clarke, Klan, Carver Klux and several other members of the Ku all wear- ing hats, white and conical demonstration conducted a robes neighborhood Gainesville, a verbal confrontation Ga. black between neighborhood residents, Carver the demonstrators back, resident, I’ll shoot.” “Get said to reached into robe and Ap- making threat. a terroristic Carver was convicted App. peals conviction, Carver v. affirmed the petition (1987), granted A for certiorari. *2 we Carver’s SE2d Appeals appears in Court of of the facts more detailed account opinion. objects evidence he deems of certain admission Carver possession
prejudicial. of Carver’s evidence The trial court admitted telephone messages guns previous rallies, Carver’s racist Klan at of inquiries demonstration, of an evidence about this to answer recorded earlier public demonstrators, to the and the cost arrest of one of the other of policing its on law enforce- effect demonstration quashing complains trial court erred He that the also ment. possession subpoenaes production in the of documents Company Publishing The Times. Southland d/b/a person threat when he of a terroristic 1. A the offense commits any § The OCGA 16-11-37. crime of violence. threatens commit complete when the threat is communi- threats is terroristic crime of coupled Boone intent to terrorize. with the cated to the victim and is v. 49) (1980). App. Since a deliberate Ga. 937 showing integral part crime, evidence is intent to terrorize an necessary, proving such a relevant, but terroristic intent not properly disputed show Carver’s admitted to evidence was case. terroristic intent. Appeals holding that Carver
2. We in the Court of find no error exculpatory information failed to show he was denied material files Times. police State was asked 3. On examination the chief direct police duty demonstration. if at the scene of the officers responded affirmatively that the cost of witness and then volunteered county. point, $13,000 At this defense counsel this was about testimony probative objected stating grounds had no as his attorney In stated, it.” then “We don’t insist on The district value. response any disregard this, tes- to all the court instructed the timony present. being not The record does as to the cost of officers request further curative indicate a for mistrial or a motion instructions. testimony to be chief held the opened the door to the tes-
irrelevant but the defense had found that timony by We law enforcement officer. of a local its cross-examination particularly error, instructions find no harmful and the failure view of court’s pursue further. the matter the defense except Judgment Marshall, concur, C. All the Justices affirmed. J., Bell, JJ., Smith and who dissent. dissenting. Justice, Smith, granted App. Carver v. We certiorari in 877) (1987), questions we to review several we raised when
granted questions the writ. The follow the facts.
Appellant Carver, Klan,” Daniel Klux member of the “Ku along approximately wife, child, with his ten other “klansmen” neighborhood and “klansladies” walked into black for the ostensible purpose demonstrating disapproval emanating drug their sales from the area. Most of the robes and conical hats. followers were dressed white Approximately two to three hundred black cit- gathered izens around the and his followers as stood housing project. for several hours in front of a Some of the black citi- pelted zens stood and watched fol- while others and his with lowers threats and at “kill In times chanted them.” addition to pushing. assault, the verbal bottles were thrown and there was some advised his followers to remain calm and the record indicates that his instructions were followed. One of the State’s wit- nesses testified that he threaten see “Klan” member strike or *3 person during present. black he the time was police requested appellant people The the to move his to the separate other side of the street to them the from black citizens. The appellant obliged groups and crossed the street so that two the were separated. Lyles appellant Jalasker arrived the on scene after the had dis- Lyles group tanced himself from the Mr. a black citizens. first advised young they of blacks not to throw the bricks and bottles had been collecting. Lyles ap- Thereafter, Mr. crossed the the street told pellant Lyles he should “our of leave side town.” Mr. and the appellant exchanged Lyles away. words and Mr. walked This was Lyles spoken first time the Mr. had ever seen or to one another. Lyles, Randolph, Later, Collins, Mr. Herman and Rufus followed
by approximately sixty seventy blacks, a crowd to some whom chanting, “get surged police em,” were hold across the street. The tried to angry, moving according crowd, Collins, back the but to Mr. police enough “manpower were unable to do so because there was not keep everybody to off that side of the street.” The testified angry throng approached. that he was afraid when the Lyles police attempting Mr. testified that as the to hold appellant, “Why you go advance, back the he said to the don’t ahead people got angry they and leave because the done and I’m scared are going appellant said, a start riot.” He testified further that the police they responded shoot, “Get I’ll back or I’ll The shoot.” when gun. Lyles yelling had Mr. heard Lyles if out a warrant. he swear An officer asked Mr. wanted Lyles explained the war- have to take out The Mr. would officer agents The or heard a threat. none of the GBI rant because a warrant was issued. the courthouse where Mr. officer took the Court of erred subpoena 1. Whether production quash court’s decision of Publishing Company, photographs The Southland made d/b/a Times. originally Times, The the local the trial court ordered When day produce
newspaper, photographs it had the 215 taken photographs expressed eloquently incident, need for the press minimal on the as follows: and the burden public press engaging in courts serve the Both the truth-finding enterprises. In and nature basic character harmony other, con- each conflict. When are with press needs the crimi- occur and the flicts do nal between through system, justice re- those are resolved conflicts judicial balancing process gives full to a course conflicting, legitimate, yet interests consideration photographic highly rele- case, are In this materials both. vant photographs of self defense. and material to defendant’s claim unique past event are records of a unavailable placed on The Times other source. burden subpoena specific is min- to materials nature a imal, limited newspaper’s degree af-
as is of intrusion into production photographic Therefore, materials fairs. will be required. rehearing during hearing
However, Times motion substantially changed mo- the tion torney. the same trial court direction. expressed hearing judge The Times at- irritation to judge annoyed criti- in The Times because an article subpoena relating photographs quashing him for not cized *4 arguments in court. and had not been made article advanced judge stated, The trying help The in this Times to handle
I solicit the would responsible way, this in court is not so that citizens can know that a way,
simply going to, in reckless turn over some people might photographs or to Mr. Carver to other who way. misuse them some required photographs
The limited that were trial court thereafter inspection camera to taken before those to be turned over for an the arrest and those which showed either the or Mr. pic- both. The or The trial court Times to which allowed decide tures fit criteria. hearing court, motion and before The Times at- this
torney argued photographs that the other were not relevant to the against charges or defense. There can never be judicial relevancy photographs. determination The deter- attorney mination made for The Times. attorney responding question The
The Times for to a providing photographs this court indicated that all the anis intrusion gathering process, into the news and thorough gathering
it acts as a deterrent to news and can impediment act even gathering in a such this case as as an to news reporting neighborhood news and if the because perceives investigative The Times as an arm of the Klan for example. photographs . .if The Times have are turned over investigative purposes people neigh- Klan, in that may receptive coming borhood not be to the news media into neighborhood reporting. . . . Why perceived The Times feel that would it would be as an in- vestigative of the “Klan” if arm allowed the to view photographs? quickly mind; There is one reason that comes photographs support appellant’s during version of what occurred day credibility and test the of the State’s This witnesses. conclu- attorney’s during pre- sion bolstered The Times is statement said, response question, pho- motions. In to a he “there are some tographs run, that The Times not chose which the citizens who photographed might like not to the furnished Klan.” Georgia guarantee The Constitutions the United States every regardless religious political per- race, creed, citizen belief or impartial press suasion, fair trial. would use the same con- provisions deny possibil- situtional ity to hide behind and a citizen the impartial press, despite of a fair and trial. insistence its protects part case, First Amendment commu- nity apart community. such, from the As it is burdened with cer- obligations community. press, tain more than other private encourage equal institution, must all. treatment for process right compulsory “Sixth Amendment Washington recognized evidence, Texas, secure relevant v. 1019) (1967), U. 14 S. SC 18 LE2d was violated because arguably relevant [Cit.]” and material evidence was foreclosed. Carver (J. App. Beasley, dissenting). at 443
2. Whether the Court erred *5 390 tape-recorded messages. decision to certain
court’s admit provide telephone answering machine to appellant his used racial express to his and regarding “Klan” activities information taped obtained the Department Police views. The Gainesville machine telephone answering by monitoring appellant’s the messages tapes of the eight months. Some period approximately over a they were be considered jury instructions that to played to the with in- or “state of mind the only purpose showing Mr. was no evidence incident.” There prior alleged tent v. Wood upon Lyles tapes. Appeals heard relied had the 442) (1986) and Shafer (1941) tapes. 798) upholding in the admission of Ga. 722 in- in and because The evidence allowed Wood Shafer that was part or on the of the defendants volved behavior conduct at time of the to of the defendant’s almost identical the behavior trial, outweighed probative value they crime for which were on and its Wood, supra, the evidence established danger prejudice. In helmet, and military shot wearing the defendant a German while prosecution in was allowed killed a Jewish his home. The woman military in introduce of the defendant dressed German photographs firearms, of Nazi memorabilia clothing, wearing photograph and a show defendant’s his home. The were admissible to photographs mind, photo- value of the only probative bent of but because the p. Id. at graphs outweighed danger prejudice. Shafer, po presented supra,
The evidence established that years selling liquor Shafer lice had been for several to catch trying policeman attempt, his home. shot and killed a one Shafer She with Shafer’s wife. pushing who had become involved match her attempting following him from into a bathroom. prevent inci trial, during earlier testify At an officer allowed to an after policeman door dent when a tried to break down bathroom “ 4 said, “I’m to shoot going Mrs. Shafer ran Shafer into the bathroom bitches, in here you you running policemen, some of smart sons of ’ ” snatching my pp. Id. at 726-727. pulling and wife her around.” First appellant simply exercising his behavior of the views right speech by expressing his racist Amendment to freedom was, who “Klan” information telephone those called his number for alleged at imagination, no stretch of similar to behavior surging the street chanting time Mr. crowd were across any specific convey toward him. The taped messages racist prejudice his home. The calling threats and could be heard tapes appellant probative value outweighed In- nothing illegal. said should not have allowed. been speech strangle deed, appellant’s protected using the court is him in proceeding. a criminal
3. Whether the Court of erred Georgia Investigation agent court’s decision to allow a Bureau of testify “Klan” had been seen at other functions weapons. with questions being
“Evidence must relate to the
tried
upon
directly
indirectly.
and bear
them either
matter
or
Irrelevant
questions being
§
were,
should be
24-2-1.
excluded.” OCGA
tried
1)
*6
threat,
did the
the
communicate a
was
communicated
3)
appellant
violence,
threat a threat of
with
and
did the
make
threat
the
(a).
§
the intent to
terrorize
victim. See OCGA 16-1-37
(324
Sport
Appeals
State,
relied on
v.
[I]n circumstances, certain of evidence crimes is “First, admissible. Two must conditions be satisfied. there perpe- must be evidence that the in defendant was fact independent trator of Second, crime. there must be suffi- similarity independent cient or connection between the charged, proof crime and the offense that of the former tends prove [Emphasis supplied.] [Cit.] latter.” applied prosecution First, the Walraven test is be when the attempts any to introduce similar “criminal” There acts. was never appellant charged weapons evidence that the was with a ei- violation day my knowledge ther the this is the of the incident or at other time. To Georgia in first time court has State of allowed the legal prove guilty trial court to an use unrelated act to one of al- an leged assuming applicable Second, crime. is the Walraven test to this similarity legally case, is there not sufficient or connection between having weapons places charged. at other crime times and and the Mr. appellant weapon, appellant did not see the awith and the weapon. legally possession not have a Proof that the was weapons places prove of at other times and does not tend to testimony agent’s amade terroristic threat. The was irrele- prejudicial only questions vant and before the and served purpose inflaming jury. Appeals affirming 4. Whether the Court of the trial erred court’s decision to allow evidence about the arrest and conduct Billy Roland. A officer testified that more than two hours the al- before leged away threat, terroristic at a incident location where this place, Billy Party, Roland, took a member of Patriots was the White language. using abusive arrested for solely on the conduct “focuses of a terroristic crime threat App. 937, .” Boone . accused. (1980). allowing irrelevant into evidence this trial court erred testimony. prejudicial evi- first time on record that
and This person, charged crime, awith different dence of the arrest another place, conspiracy alleged, was was at introduced where no a different time completely separate trial. criminal a erred 5. Whether the Court of alleged effect to admit evidence about court’s decision “Klan’s” police participation. investigations presence drug cost of the area any weapons theory appellant, without The state’s sup- only by accompanied wife, child, and number of small porters community to terrorize the black citizens. went the black neigh- particular black that he went to The borhood asserted protest drug sales, thus, he had to show that there drug way prove problem in the area. he could area drugs asking questions about was known to be a source for drugs in the area. questioning open the did not door line
prosecution testimony indicating that the from the sheriff elicit *7 drug presence sales, in the “dramatic” decline “Klan’s” resulted disruption police investiga- large flight dealers, or the tions for two months. Nor did this line of of several
questioning open the door testify County the citizens Hall for for sheriff to the cost to the police protection. about say I this is the case would venture to first police investigations, af- on record where about effect evidence alleged alleged proof crime, crime. ter an has used as been erred in 6. the Court of trial Whether appel- was sufficient to convict the court’s decision that the evidence charged. lant of the crime by alleged threat was At the time of surrounded push- police ing chanting agents. angry, However, GBI crowd was family, appellant, followers, across the street to where the his request police. greatly outnumbered, If at had withdrawn expres- alleged justified threat, he make was sing carry reasonably he out when a threat that he could not he knew family necessary his defend himself and believed that against such (a). § 16-3-21 harm. See imminent OCGA Additionally, at much of the evidence admitted which say in- have ruled To evidence
should been inadmissible. jury against appellant is inflame formed the say and did not them The fact that the the sun will in the West tomorrow. rise (and alleged people in the crowd more was heard three threat it) importantly police nearby that the were standing who did not hear tends to by-product indicate this decision was the of an inflamed jury.
People political unpopular supposed whose views are are to be protected by the same as popular. Constitution those whose views are 23, Decided June 1988. July
Reconsideration denied Dickson, Sam G. for appellant. Fuller,
C. Summer, Andrew Attorney, District A. Daniel Assis- tant District Attorney, appellee. for Rawls, Denham, Jr., Weiss, James C. V. Robert Falk Jennifer
amici curiae.
45440. HOLIDAY THE STATE. Justice.
Hunt, Dallas Bernard Holiday convicted of malice mur- der, robbery, armed burglary, possession two counts of of a fire- arm a convicted felon. He was sentenced to death for the murder.1 11, 1986, On victim, Williams, March Leon for went usual early-morning him, walk. His wife often accompanied but this time she left, remained home. an hour nearby Half after he neigh- bor, Buckner, Barbara ran to the Williams’ house and asked use — telephone breaking someone was her into house. Williams’ telephone was not working, so Mrs. drove Williams Mrs. Buckner to police station. defendant was still the Buckner home when the arrived, but he ran nearly out the back door capture and eluded pistol an hour. A dropped during he the chase turned to have out been one two taken in burglary evening. another the previous
Meanwhile, By lunchtime, Mrs. Williams returned home. her *8 husband still had begem not returned from walk. She checking his around, trying him, to find and could disappearance not. His was re- ported that afternoon.
May 12,1986, new trial was docketed of time to The crimes were committed in this file timely and the case court enumerations of filed January 28,1988, and, was tried November after March error, hearing, the case was and after the defendant was 11, denied December through 1986. The defendant argued November orally 28, April 21,1986. granted 1987. The A motion for an extension indicted on case