44452. JACKSON v. THE STATE.
Supreme Court of Georgia
October 8, 1987
(361 SE2d 156)
SMITH, Justice.
Michael R. Jones, Sr., for appellant. John M. Ott, District Attorney, Michael J. Bowers, Attorney General, for appellee.
This is an appeal from the trial court‘s denial of a plea of former jeopardy. We affirm.
The appellant, Deborah Sue Jackson, was indicted on two counts of murder for the deaths of her mother and stepfather. At the conclusion of the state‘s evidence and again after all the evidence was presented, the appellant moved the court for a directed verdict of acquittal. Both motions were denied. The jury deliberated for ten hours over a two-day period, and after the jury failed to reach a verdict, the trial judge declared a mistrial and ordered a retrial.
The appellant argues that double jeopardy precludes reprosecution because a directed verdict of acquittal should have been granted. In Humphrey v. State, 252 Ga. 525 (314 SE2d 436) (1984), this Court held that the test for determining the sufficiency of the evidence in response to a motion for directed verdict is the same test established in Jackson v. Virginia, 443 U. S. 307 (99 SC 2781, 61 LE2d 560) (1979). Applying this test, we find that a rational trier of fact could have found the essential elements of the crimes beyond a reasonable doubt.
This Court has held, “[r]etrial of a criminal defendant after a mistrial caused by the inability of the jury to reach a verdict does not constitute double jeopardy where there is manifest necessity for declaring the mistrial.” Glass v. State, 250 Ga. 736, 738 (300 SE2d 812) (1983). Our review of the record reveals that the trial court did not abuse its discretion in ruling that the jury was hopelessly deadlocked and declaring a mistrial.
Judgment affirmed. All the Justices concur.
44702. IN THE MATTER OF: PACIFIC & SOUTHERN COMPANY, INC., d/b/a WXIA-TV.
Supreme Court of Georgia
October 13, 1987
(361 SE2d 159)
SMITH, Justice.
Powell, Goldstein, Frazer & Murphy, James C. Rawls, V. Robert Denham, Jr., Jennifer Falk Weiss, for appellant. Stephen F. Lanier, District Attorney, Robert K. Finnell, Assistant District Attorney, for appellee.
Timothy Tyrone Foster was indicted for murder, burglary, and theft by taking, and the state announced that it would seek the death
The evidence WXIA-TV sought to copy and televise was a videotaped statement Foster made to the police and a videotape of the crime scene. The district attorney and the defense attorney both objected to WXIA‘s motion based upon the belief that providing access to the evidence might prejudice the defendant‘s future rights to a fair trial. The trial court agreed and stated that the public‘s right to know was less than the defendant‘s right to a fair and impartial trial.
WXIA argues that the court‘s denial of its motion for access based on the court‘s concern for Foster‘s future rights to a fair and impartial trial was erroneous.
The United States Supreme Court was faced with somewhat similar facts in Rideau v. Louisiana, 373 U. S. 723 (83 SC 1417, 10 LE2d 663) (1963). In an interview filmed by the police, Rideau confessed that he had been the perpetrator of certain crimes. The interview was aired by the local television station during a three-day period. Later Rideau was arraigned on charges of armed robbery, kidnapping, and murder. Rideau‘s motion for a change of venue was denied, he was convicted, and sentenced to death. In reversing the case the Court stated: “For anyone who has ever watched television the conclusion cannot be avoided that this spectacle, to the tens of thousands of people who saw and heard it, in a very real sense was Rideau‘s trial — at which he pleaded guilty to murder. Any subsequent court proceedings in a community so pervasively exposed to such a spectacle could be but a hollow formality.” Id. at 726. The Court did not even bother to inspect the voir dire examination of the jury. The Court determined “due process of law in this case required a trial before a jury drawn from a community of people who had not seen and heard Rideau‘s televised ‘interview.‘” Id. at 727.
More recently the Eleventh Circuit Court of Appeals reversed the twelve-year-old murder convictions and death sentences of Wayne Carl Coleman, Coleman v. Kemp, 778 F2d 1487 (11th Cir. 1986), Carl J. Isaacs, and George Elder Dungee, Isaacs v. Kemp, 778 F2d 1482 (11th Cir. 1986), based upon presumed prejudice.2 The Coleman court
The public has a vital interest in retaining its constitutional rights to fair and impartial trials, for when an accused does not obtain a fair trial, especially in the most heinous of cases, the public suffers. The public generally bears the expense of the numerous appeals and new trials. The victims and the other witnesses suffer the trauma of having to relive the crime and testify before another trier of fact the exact details of the crime. The families and friends are suddenly thrust back in time, sometimes as much as ten to fifteen years earlier, to memories that are extremely painful. Furthermore, the public does not understand why an obviously guilty defendant is granted a new trial many years after the initial conviction. This lack of understanding causes the public to distrust the very system that was designed to protect them.
Evidence introduced in a courtroom is presented with great care in a controlled environment. There are rules that govern its admission and a judge who is required to see that the rules are followed so that, inter alia, one piece of evidence does not attain a greater weight in the minds of the jurors. Challenges to allegedly improperly admitted evidence are frequently heard in post conviction appeals. Also, items that have an evidentiary value may be retained by the state for a reasonable length of time following a trial. Cannington v. State, 154 Ga. App. 557 (269 SE2d 62) (1980).
Although the appellant argues that Napper v. Ga. Television Co., 257 Ga. 156 (356 SE2d 640) (1987), held that a motion cannot be denied on the basis that there may be a prejudicial impact on retrial, that is not what Napper held. We held in Napper that the pendency of Wayne Williams’3 habeas corpus petition did not justify a blanket non-disclosure of the closed investigatory files. As this Court held, “once the trial has been held, the conviction affirmed on direct appeal, and any petition or petitions for certiorari denied (including to the Supreme Court of the United States), the investigatory file in the case should be made available for public inspection.” Id. at 165.
Until the appeal process is completed, as outlined above, the media may not have access to the electronically produced evidence that
Judgment affirmed. All the Justices concur, except Hunt, J., who concurs specially.
44702. IN THE MATTER OF: PACIFIC & SOUTHERN COMPANY, INC., d/b/a WXIA-TV.
Supreme Court of Georgia
October 13, 1987
(361 SE2d 159)
HUNT, Justice, concurring specially.
While I agree with the result, I cannot agree with the basis of the majority‘s opinion. In Napper v. Ga. Television Co., 257 Ga. 156 (356 SE2d 640) (1987), relied on by the majority, the question was whether the closed investigatory files of the “Atlanta Child Murders” case were available to the media under the Public Records Act,
Unlike the line of cases cited by the majority including Rideau v. Louisiana, 373 U. S. 723 (83 SC 1417, 10 LE2d 663) (1963), and contrary to the implication of the majority‘s opinion, publicity resulting from the broadcast of the videotapes could not cause the reversal of the trial of this case, which is concluded. The majority strains the reasoning of Rideau and its progeny by applying it to the potential impact of publicity on a retrial which may or may not occur at some undetermined point in the future. While the majority‘s concerns are not invalid, the possibility of a retrial in the future and the possibility that publicity now might affect any retrial are far too speculative to form the bases of the rule established by this case.
Moreover, the majority‘s holding runs counter to the intent of Rule 22 of the Uniform Superior Court Rules, authorizing media broadcast of trials within the discretion of the trial court. The majority‘s holding is not only unnecessary to a decision in this case, but it also places an unwarranted limitation on the discretion of the trial court in deciding what aspects of a trial may be broadcast.
44377. BARBER v. BARBER.
Supreme Court of Georgia
October 8, 1987
(360 SE2d 574)
GREGORY, Justice.
Appellant Charlene A. Barber filed a divorce action against appellee Ronald L. Barber.
Appellant Charlene A. Barber filed a divorce action against appellee Ronald L. Barber. Following a jury trial in which issues of alimony, child support and equitable division of property were litigated, we granted appellant‘s application to appeal,
1. Appellant complains that the trial court erred in sequestering her during the testimony of her witnesses. The record shows that after appellee moved for sequestration of the appellant, the trial court offered the appellant the option of testifying first and remaining in the courtroom during the testimony of her witnesses, or remaining outside the courtroom until such time as she chose to testify. Appellant‘s attorney stated that he had “other witnesses [he] felt obligated to accommodate” and that it would be “inconvenient” to have appellant testify first. Appellant remained outside the courtroom until such time as she elected to testify.
It has been generally held that the rule of sequestration,
We hold that under the circumstances of this case the trial court did not abuse its discretion in offering the appellant the option of testifying first or remaining outside the courtroom until she chose to testify. Further, we find that appellant has not demonstrated that she was harmed by not being in the courtroom during the presentation of her witnesses. See Sun v. Bush, 179 Ga. App. 80 (5) (345 SE2d 85) (1986).
2. The issue of child custody had not been resolved by the trial court by the conclusion of the evidence. Appellant argues the trial court erred in failing to provide the jury with alternate verdict forms as required by Curtis v. Curtis, 255 Ga. 288 (336 SE2d 770) (1985).