Appellant, Sidney Farley and Willie James Paul, were jointly indicted by the Grand Jury of Putnam County, Georgia for the separate offenses of rape and murder of one Charlotte Cutwright. Co-defendant Paul filed a motion for severance which was granted. Appellant and F arley were tried together and were found guilty by a jury of both offenses. Appellant received a life sentence for murder and a 20-year sentence for rape to run consecutively. From the judgment and sentence he appeals to this court.
*666 Resume of the Facts
The victim, Charlotte Cutwright, estimated to be between 60 and 66 years of age, moved into a new house in Eatonton, Putnam County, Georgia on May 21, 1976. Several neighbors and friends were in and about the house during the day helping her to move. That evening, Mary Cutwright, a granddaughter, left her grandmother’s house accompanied by two friends, George and William Reese. Remaining at the house at the time were the victim, William James Paul, A1 Banks and Leon Hurt, appellant’s brother. Later that evening George Reese and Mary Cutwright picked up appellant and co-defendant Sidney Farley, and dropped them off near the house. They both indicated they wanted to visit the deceased. Some time after midnight George Reese and Mary Cutwright returned to Charlotte Cutwright’s house where they encountered Farley who said he could not awaken the deceased. Upon investigation they found the deceased lying diagonally on the bed with her clothes pulled up. They could find no pulse at the time. Several witnesses indicated that a cap seen lying on the bed belonged to the defendant Farley. The police were summoned.
Leon Hurt and Allen Banks testified that after Mary Cutwright left with George and William Reese, the co-defendant Willie James Paul sent them to get some liquor. When they returned a short time later they saw appellant standing in the yard and co-defendant Farley inside the screen door. When Leon Hurt attempted to enter the house with the liquor Farley tried to push him back. Additionally, appellant tried to keep the two witnesses from entering the house. Leon Hurt and Allen Banks entered the house anyway where they saw Willie James Paul in bed with Charlotte Cutwright. They testified to the facts which indicated that defendant Paul had just completed an act of intercourse with the deceased. There was testimony that the victim was moaning at that time. Defendant Paul was seen walking away laughing and co-defendant Farley was heard to say that he was second. The victim was later found to be dead. An autopsy was performed on her person revealing lacerations on the inside of her labia majora, tears in the *667 skin of the perineum, tears in the back wall of the vaginal canal, contusions, bruising and ecchymotic hemorrhaging of the entire circumference of the vaginal organs. There was considerable blood on her clothing.
Dr. James Dawson, who qualified as an expert, gave his opinion that the cause of death was shock, based on fluid in her lungs, the accumulation of blood in various organs and other physical facts determined in the autopsy. He explained that shock could be brought on by loss of body fluid, severe pain or an extreme emotional state or fear of pain. He pointed out that the victim defecated before death which comes as a result of extreme pain in many cases. Fecal material was found on a pair of pants which appellant was wearing when arrested. The victim had a blood alcohol content of .23 per cent at death.
Appellant and Farley made separate statements to separate GBI agents, in separate rooms, at approximately the same time in the early morning of the following day. A Jackson v. Denno hearing was held to determine the voluntariness of those statements. Following that hearing, one of the investigating officers testified that the appellant freely and voluntarily made the following statement: "Earlier tonight Willie James Paul and I went to Charlotte Cutwright’s house after dark. When we arrived she was lying on the bed asleep. She did not have any panties on. Willie James Paul got on her first and then I did. She was hollering for us to get off, she had awakened up. After I got off of her, Willie James Paul got on her again. Leon Hurt and A1 Banks were watching while Willie James was on top of her. She went to sleep while Willie James was on her a second time.”
Farley gave a similar statement to another officer which differed only in that Farley stated the victim was not moving while the three men had intercourse with her.
The defense contended that appellant and Farley were mentally retarded and could have been easily led into making their statements to the officers. Defendants introduced at both the Jackson v. Denno hearing, and at the trial, the testimony of several witnesses in regard to their inability to read, understand, or waive rights.
Enumeration of Errors
1. Appellant’s enumerations numbered 1, 2 and 12 *668 complain that the verdict is contrary to law, contrary to the evidence, and the trial court erred in overruling appellant’s motion for a directed verdict of acquittal at the conclusion of the state’s evidence.
While the evidence is not conclusive of the defendant’s guilt, it is sufficient. The jury trying the case, from the evidence presented, could conclude that the victim died from shock caused by fear and extreme pain inflicted upon her person. They could conclude the victim was asleep when raped and woke up. They could conclude that she had been raped from the physical facts illustrated by the injuries to her person. They could also conclude that two or more of the parties involved were acting in concert, when they had intercourse with her in turns and when two attempted to keep witnesses out of the house on or about the time of the occurrence. This court does not pass on the weight of the evidence but on the sufficiency thereof to sustain the verdict.
Ridley v. State,
2. Appellant’s enumeration no. 3 contends that the trial court erred in admitting into evidence, over timely objection, the purported confession of appellant obtained by one of the investigating officers, claiming that the confession was illegally obtained in derogation of appellant’s constitutional rights.
The trial court held a separate Jackson v. Denno hearing regarding the admissibility of the purported confession. Appellant contends that the burden rests on the state to demonstrate clearly that the defendant knowingly and intelligently waived his privilege against self-incrimination and his right to counsel. With this we
*669
find no argument. At such a hearing, the state is required to show voluntariness only by a preponderance of the evidence.
High v. State,
Once a trial court determines that a statement was freely and voluntarily given in compliance with the requirements of Jackson v. Denno,
Fact findings and credibility findings in regard to admissibility of such a statement based on voluntariness, made by a trial judge must be accepted by this court unless such determinations are clearly erroneous.
Johnson v. State,
3. Appellant’s enumeration no. 4 complains that the trial court erred in admitting into evidence over timely objection, the purported confession of appellant obtained by police officer Folds contending that said confession was illegally obtained in derogation of appellant’s constitutional rights.
Appellant urges the same argument in support of this ground that he did in support of enumeration no. 3. We reach the same result.
4. Appellant’s Enumerations 5 and 6 contend that the trial court erred in admitting into evidence over timely objection, a purported confession of appellant, obtained by police officer Folds, as this statement by appellant was not furnished to his counsel in accordance with the trial court’s pre-trial discovery order; and for the further reason that no Jackson v. Denno hearing was afforded appellant outside the presence of the jury to determine its voluntariness.
The first contention is controlled adversely to appellant by this court’s decision in
Hudson v. State,
As to the second point, we have searched the record and cannot find where counsel for this appellant requested a Jackson v. Denno hearing in regard to the purported confession of his client made to Officer Folds. This court said in
Watson v. State,
5. Enumeration No. 7 complains that the trial court erred in admitting into evidence, over timely objection that the same was hearsay, the testimony of police officer Folds when he said "that they were carrying on about one in particular carrying on about her grandmother had been killed . . .” at the time of the officer’s arrival on the scene, and which was closely related to the time of the discovery of the body. We cannot conclude that this constituted hearsay as "carrying on” would more indicate behavior than conversation. Even if it referred to words or conversation it would not be objectionable as it explains the conduct of the officer in carrying out his further investigation. Code Ann. § 38-302;
Tanner v. State,
6. Enumeration no. 8 contends that the trial court erred in admitting into evidence over timely objection the testimony of GBI Agent Harris relating to the waiver of appellant’s constitutional rights, in that counsel for appellant was not furnished with a copy of said waiver prior to trial pursuant to the trial court’s pre-trial discovery order.
At the stage of the trial, involving this objection, state’s counsel had inquired of a GBI agent whether or not he had advised the defendant of his constitutional rights. In response, the agent replied that he had advised him of the Miranda warning. State’s counsel then asked him if he read it from a card, and the witness replied "no, sir, I read it from one of our Miranda waiver of counsel sheets.” At this point defendant’s counsel objected saying: "Your Honor I would object to any oral reference to this statement on the same basis that we had before.” The *672 court’s ruling follows: "I’ll admit the, what the GBI Agent Harris informed him as to his constitutional rights, but I will not admit the document itself.” Appellant contends that inasmuch as the district attorney did not furnish his counsel with a copy of the waiver signed by appellant, in keeping with a Brady motion, and a pre-trial order of the court requiring the state to supply him with copies of any statements made, he cannot now testify in that area. We do not hold that an accused is entitled to receive from the state any documents which are not favorable or arguably favorable to him. We do hold the failure of the state to furnish the defendant with any such document does not preclude the court from permitting the witness to testify to what he orally advised the defendant. There is no error.
7. Appellant contends that the trial court committed error in admitting into evidence, over timely objection state’s exhibit no. 9, a bedspread, saying that there was a break in the chain of custody. This bedspread was on the bed of the decedent when she was carried from the house to the hospital and was positively identified as such by one of the investigating officers. Defendant’s objection stated "there’s a gap in. the chain, getting it from the hospital to the, to the funeral home. . .We’ll object to it.”
Items of evidence which are distinct and recognizable physical objects are admissible in evidence without the necessity for showing the chain of custody.
Roland v. State,
8. Enumeration no. 10 complains that the trial court erred when it allowed the district attorney to reopen the evidence and produce further evidence in regard to the custody and identity of state’s exhibit no. 3, the pants of the appellant. Reopening evidence is in the sound discretion of the trial court and will not be disturbed when no abuse of discretion is shown.
Mobley v. State,
9. Appellant makes the same point in enumeration *673 no. 11, with reference to state’s exhibits nos. 4, 7 and 8, and we reach the same result.
10. Appellant’s Enumeration no. 13 complains that the trial court erred in ruling that defendant’s exhibit no. 1, the psychological evaluation of Otis Hurt, Jr., was inadmissible in evidence.
Appellant claims that the document was admissible under Code Ann. § 38-711 as a business record. We have read the transcript in detail, and it fails to disclose that appellant laid the foundation necessary to introduce such a document under the provisions of that Code section. But assuming that he had done so, the document as a whole, contained conclusions, opinion, estimates, impressions and recommendations of a third party, not before the court. The document having included such things, it is not admissible as a whole.
Martin v. Baldwin,
11. Appellant complains that the trial court erred in charging the jury as to conspiracy, claiming that there was no evidence that appellant was a party to any conspiracy, and that said charge was prejudicial to him.
The question of the existence of a conspiracy is ultimately for the jury to determine.
Hutchins v. State,
Judgment affirmed.