HUNT et al. v. THE STATE
72142
Court of Appeals of Georgia
July 3, 1986
REHEARING DENIED JULY 31, 1986
(348 SE2d 467)
BEASLEY, Judge.
Because I cannot conclude that there was no reasonable possibility of the improperly admitted evidence having contributed to the guilty verdict, that evidence reflecting identification of defendant as the offender, the convictions must be reversed. Schneble v. Florida, 405 U. S. 427, 432 (92 SC 1056, 31 LE2d 340) (1972). Not only did the evidence challenged implicate defendant in the offenses for which hе was on trial, but the coat also went to the identification of defendant as the perpetrator of the independent crime of attempted rape.
2. I agree with the remaining divisions of the opinion.
I am authorized to state that Judge Carley joins in this dissent.
DECIDED JULY 16, 1986 —
REHEARING DENIED JULY 31, 1986 —
J. Reginald Poss, for appellant.
Joseph H. Briley, District Attorney, for appellee.
BEASLEY, Judge.
Defendants Larry David Kirkman, Linda Kierсe, Robert Hunt, and his wife Mary were convicted by a jury of child molestation (
1. The first claimed error is the court‘s overruling of defendants’
The search warrant authorized a sеarch of the house for the following items as evidence of the crime of child molestation: “Articles of clothing worn during a ceremony involving child molestation, namely: gown with an upside down star embroidered on it; material used as an alter (sic) for the ceremony; incense and candles used during the ceremony; books or manuals used or referred to for said ceremony which are evidence of the ceremony of child molestation occurring once a month during the new moоn.”
The court granted the motion in part, limiting admissible items to those described in the warrant. At trial the state introduced into evidence a robe with an embroidered pentagram, or upside down star, a witchcraft prayer book allegedly used during religious ceremonies, and a painting which had hung over a large chest of drawers described as the altar. The painting depicted a blond woman and a pentagram.
The items not suppressed should have fallen, appellants argue, beсause they were not particularly described in the search warrant, as required by Marron v. United States, 275 U. S. 192, 196 (48 SC 74, 72 LE 231) (1927), insofar as the Fourth Amendment goes, and as required by
We note, however, that somewhat of a distinction has been made between the federal constitution‘s requirement of particularity and thаt mandated by the state constitution, now
Comparing what was specified in the warrant with what was not suppressed but admitted in evidence at trial, the warrant manifests a sufficient degree of particularity so that the officers would know what they were searching for. Analogizing what is to be seized with what is to be searched, “[t]he test for the sufficiency of ... description is whether “... on its face it enables a prudent officer executing the warrant to locate [it] definitely and with reasonablе certainty.““,” State v. Hardin, 174 Ga. App. 83 (329 SE2d 172) (1985). “The warrant must describe the items to be seized with such particularity as to enable a prudent officer executing the warrant to seize the things with ‘reasonable certainty.‘” Tyler v. State, 176 Ga. App. 96, 97 (1) (335 SE2d 691) (1985).
Appellants have not argued separately that the рainting did not fall within the language of the search warrant, apparently conceding that it is covered by the “material used as an altar for the ceremony” category. “(W)hen circumstances make an exact description of instrumentаlities a virtual impossibility, the searching officer can only be expected to describe the generic class of items he is seeking. [Cits.]” Evans v. State, 161 Ga. App. 468, 470 (1) (288 SE2d 726) (1982); Butler v. State, 130 Ga. App. 469, 473 (203 SE2d 558) (1973); Tyler, supra at 97. These state cases apply federal constitutional law.
Appellants especially complain about the book, asserting that Stanford v. Texas, 379 U. S. 476, 485, supra, requires “the most scrupulous exаctitude when the ‘things’ are books, and the basis for their seizure is the ideas which they contain.” But as pointed out in Stanford, this is because the First Amendment is involved when what is to be prosecuted is the ideas in the books. Such is not the case here, where the book was merely being used as evidence that such ceremonies had occurred. The ideas set forth in the book were not the subject of the prosecution. The Court in Stanford recognized the distinction: “A ‘book’ which is no more than a ledger of an unlawful enterprise thus might stand on a quite different constitutional footing from the books involved in the present case. . . .” Id. at 485, note 16. Nevertheless, the books to be seized were described with circumspection so as to relate to a narrow type of material that would be relevant proof and contribute to a showing that child molestation had been committed. And that is all that survived the motion to suppress insofar as writings were concerned.
Apparently appellants also contend that all of the evidence seized should have been suppressed since some was found to have
2. Next enumerated is that the character of defendants Robert Hunt and Larry Kirkman was improperly placed in issue by a state witness who testified that he had met both defendаnts while they were in jail.
Upon the testimony at issue, the defense moved for a mistrial. The court overruled the motion, instructing that it would “change the ruling unless a proper foundation is laid by this or some other witness to show the time frame in which this occurred so that the chance that this jury might reach some other conclusion, other than the fact that these people are in jail because they could not make bond, is the reason they are in it.” The state then called a sheriff to the stand who testified that the four defendants had never been incarcerated in the jail on any charges other than those for which they were presently on trial. The defense renewed its motion for mistrial, and the motion was again denied.
The challenged tеstimony did not place defendants’ character in issue as it is clear from a review of the transcript that their incarceration related only to those charges for which they were then on trial and not due to any independent criminal transactions. Latham v. State, 100 Ga. App. 509, 510 (2) (112 SE2d 163) (1959); Hughes v. State, 159 Ga. App. 591 (3) (284 SE2d 98) (1981). Cf. Bowen v. State, 123 Ga. App. 670, 671 (1) (182 SE2d 134) (1971). The denial of the motion for mistrial on this ground was proper.
3. Defendants assert error in the denial of their motion for mistrial based upon “an inflammatory and prejudicial argument,” a reference to the Liberation Army in the Patty Hearst сase, by the state in closing argument and the court‘s failure to instruct the jury to disregard the comment.
In Jordan v. State, 172 Ga. App. 496, 498 (323 SE2d 657) (1984), the court found no ground for reversal where the state in closing argument referred to “some cases that you just wouldn‘t hardly believe, a fellow up in Chicago that lived in the neighborhood for years, Gracy fellow, who would have ever thought that? This minister that was up
In Forehand v. State, 235 Ga. 295 (1) (219 SE2d 378) (1975), the Supreme Court held that the failure to instruct the jury to disregard the following closing remark was not error: “The State will contend ... that [the shooting] was a cold calculated act . . . There is evidence by the testimony, is evidence by the wounds. Shot the man in the back of the head. I don‘t know if any of you recall seeing a television program several weeks ago on the Nazi extermination of the Jews. Do you recall how they shot the Jews?”
A comparison by the state in closing argument of the defendant and the Viet Cong, saying that defendant‘s possible return to society would be a greater damage than thе threat of world communism and the Viet Cong, was held to be “a permissible inference from the evidence and its logic . . . for the jury to determine.” Martin v. State, 223 Ga. 649, 650 (2) (157 SE2d 458) (1967).
The court in Jordan, supra at 498, explained: “‘A prosecutor “may argue to the jury the necessity for enforcement of the law and may impress on the jury, with considerable latitude in imagery and illustration, its responsibility in this regard.” [Cit.] What the law forbids is the introduction into a case by way of argument of facts which are not in the record and are calculated to prejudice a party and render the trial unfair. The language used in argument may be extravagant; but figurative speech is a legitimate weapon in forensic warfare if there are facts admissible in evidence upon which it may be founded. [Cits.] We find the argument of which complaint is made well within permissible bounds. The prosecutor simply argued the evidence and reasonable inferences arising therefrom and asked the jury to return a verdict of guilty. This he may do.’ [Cits.]” That applies here.
Finally, on this point, “The discretion cоnferred upon the trial court by
Judgment affirmed. Deen, P. J., and Benham, J., concur. Deen, P. J., also concurs specially.
DEEN, Presiding Judge, concurring specially.
While concurring fully with the majority opinion, it should be observed that an assembly place for adherents of the Wicca “faith,”
DECIDED JULY 3, 1986.
Larry B. Mims, for appellants.
David E. Perry, District Attorney, for appellee.