JORDAN v. THE STATE
36851
Supreme Court of Georgia
MARCH 12, 1981
247 Ga. 328 | 276 S.E.2d 224
PER CURIAM.
This murder/mutiny case involves the 1978 riot and attempted prison break at Georgia State Prison in Reidsville, Tattnall County, Georgia, which left two inmates and a guard dead and another guard seriously injured. See Whitaker v. State, 246 Ga. 163 (269 SE2d 436) (1980), involving the same occurrence.
The disturbance, an eruption of racial tensions, commenced shortly after 4:00 p.m. Sunday, July 23, 1978. At that time, the two buildings involved, buildings A and B, each contained four dormitories (1 and 2 at ground level and 3 and 4 on the second floor). Pursuant to court order, Dorms A-1 and B-3 housed white inmates and Dorms A-2, A-3, A-4, B-1, B-2 and B-4 housed black inmates. Each dorm housed about 60 inmates.
Guard Preston Foskey, who was in charge of B-1 and B-2 dormitories, released four or five orderlies for an early evening meal from B-1. As he was doing so, he was grabbed from behind and dragged inside the dorm by one or more inmates. He was pulled into the bathroom and stabbed by inmates using homemade weapons. He ran from the bathroom area, into the hall where inmates stabbed him again and again. He was knocked to the floor. When he regained consciousness, the inmates had gone and he ran to safety.
Hearing a disturbance and seeing inmates from B-1 and B-2 in the hall, a guard at A building, Dan Harrison, came to investigate. He was stabbed repeatedly, kicked, beaten and physically abused after he had fallen to the floor from the repeated stabbings.
Inmates, now in possession of both Harrison‘s and Foskey‘s keys, released approximately 240 inmates. The inmates took mattresses off beds and set them on fire, killed two inmates, and tried to persuade other inmates to release a guard these inmates had given asylum in A-3 dormitory. Homemade weapons were abundant.
After smoke had obscured much of the prison and it had become obvious that riot guards would soon be coming to settle the disturbance with tear gas, inmates congregated at A-2 dormitory where they barricaded themselves in.
The defendant and another inmate, Jessie Whitaker, negotiated a settlement on behalf of the inmates. Prison officials directed the inmates to strip and their clothing was searched for weapons before the inmates returned to their assigned dorms. The riot had lasted
After the riot had ended, prison authorities collected the clothing and more than 40 homemade weapons. Foskey was immediately rushed to the hospital where he spent twelve days recuperating from over 30 stab wounds and collapsed and punctured lungs. Harrison and the two inmates killed during the riot were dead by the time the riot was quelled. Autopsy indicated that Harrison had received more than 50 wounds over his body from different instruments and had ultimately bled to death from seven stab wounds which had penetrated his chest, lungs and liver.
Prison officials and investigators from the Georgia Bureau of Investigation interviewed inmates in an attempt to determine which inmates were responsible for the riot and the murders. After about 2 or 3 weeks of investigation, officials compiled a list of 29 suspects and ultimately charged 6 inmates with criminal activity.
The defendant was one of these 6 inmates. He apparently was moved from Georgia State Prison on or about July 28, 1978, and was subsequently charged with the murder of guard Dan Harrison, the aggravated assault of surviving guard Preston Foskey, and mutiny in a penal institution. He was indicted on April 5, 1979, after previous indictments were quashed for illegal jury composition, and pleaded not guilty at arraignment in Tattnall County Superior Court on April 17, 1979. Co-participant Jessie Whitaker was the first inmate to be tried. He was convicted of three counts of murder, and one count each of simple battery and simple assault.1
After consideration of numerous pretrial motions throughout the summer and two and one-half days of jury selection, defendant‘s trial commenced on August 13, 1979, in Tattnall County.
At trial, the prosecution presented 11 witnesses, including the Administrative Assistant to the Warden at the time, surviving guard Foskey, the Director of the State Crime Laboratory, who had performed an autopsy on the murdered guard, and 8 inmate witnesses.
The Warden‘s Administrative Assistant gave a general description of the prison layout and the conditions he saw when he came to the prison shortly before the riot ended. Foskey related the events that led up to his being stabbed but he could not identify who had stabbed him.
The prosecution evidence directly connecting the defendant with the stabbing of the two guards came from 8 inmates. Inmate
Defense cross examination was directed primarily at impeaching the inmates’ testimony on several grounds, including: (1) the inmates had gained a highly prized transfer from Georgia State Prison, allegedly in return for their fabricated testimony; (2) their present testimony was impeached by prior inconsistent statements; and (3) inferences that the prosecution‘s inmate witnesses were parties to planning and executing the riot and were testifying to divert the investigators’ attention from their own guilt.
The defense presented testimony from about 26 witnesses, including 22 inmates. These witnesses were primarily used to support the defendant‘s contention that he was being singled out in retaliation for acting as a spokesman for the inmate population, and to attack the credibility of the prosecution‘s inmate witnesses. Sixteen of the defense inmates testified as to the lack of credibility of one or more of the state‘s witnesses.2 Five inmates testified that they saw defendant without blood on his clothes and without a weapon,3 three testified that defendant acted throughout the riot to calm the inmates,4 one said defendant had not been involved in the stabbings,5 and one said defendant did not tell the inmates to get out of their
The jury found the defendant guilty of murder (
1. Defendant contends the trial court erred in refusing to conduct a full evidentiary hearing on his pretrial motion to dismiss for governmental misconduct.
On April 17, 1979, the six indicted inmates filed a motion to dismiss the criminal charges for governmental misconduct. They contended the state had engaged in the following alleged acts: physically abused the defendants and prospective witnesses; at all times manipulated the news media to the detriment of the defendants and the black inmate population; operated Georgia State Prison in such a manner as to exacerbate racial tension (such as by discriminatory hiring practices, including employing racially prejudiced white guards who supplied white inmates with weapons); deprived inmates of meaningful programs; allowed easy availability of alcohol and other drugs; and refused to take necessary steps to avoid the riot in this case. Defendants contended that the indictments against them should be dismissed for violation of their rights to due process and equal protection and against cruel and unusual punishment. The trial court denied the pretrial motion without allowing defendant to present evidence concerning conditions at the prison at the time of the riot, although some such testimony was given at trial and at the hearing on defendant‘s motion for new trial.
The Civil Practice Act is applicable to civil cases.
Each of the various allegations of defendant‘s motion has been examined. Each of them which has any merit would be subject to an action for relief short of dismissal of the indictment. See
Remedies should be tailored to the injury suffered from the constitutional violation alleged and should not unnecessarily result in dismissal of the indictment where the criminal proceeding can proceed with full recognition of defendant‘s right to a fair trial. See United States v. Morrison, U. S. — (— SC, 66 LE2d 564) (1981); see also Strong v. State, 246 Ga. 612 (5) (272 SE2d 281) (1980).
Defendant‘s allegations do not justify mutiny and murder. See Hampton v. United States, 425 U. S. 484 (96 SC 1646, 48 LE2d 113) (1976). Strong v. State, supra, does not require that an evidentiary hearing be conducted where the motion does not set forth a claim for the relief sought. Accordingly, we find that it was unnecessary for the trial court to hold an evidentiary hearing because the defendant‘s allegations, even taken as true, would have been an insufficient basis on which to dismiss the indictment.
2. Defendant contends he was denied due process and the right of compulsory process by the trial court‘s refusal to grant his motion for transfer for certain inmates who would have testified on his behalf.
Seven of the eight inmate witnesses who testified for the prosecution were granted protective transfers from Georgia State Prison. The defendant sought to obtain similar transfers for four inmates (Jerry Brown, Linwood Walker, Freddie Linton and Billy Harrison) who allegedly had exculpatory evidence to give on behalf of defendant but said they would not testify out of fear for their safety while inmates at Georgia State Prison.
Prior to trial a hearing, excluding prison personnel, was held to question the four inmates about their refusal to testify. The actual substance of their expected trial testimony was not brought out at the hearing, and although three of the four inmates testified that they had special information about the case which, according to them, would benefit the defendant, they gave no adequate explanation of
Defendant cites no authority for his interpretation of the state‘s duty to provide compulsory process for obtaining witnesses (6th Amendment and the state equivalent,
Pretermitting the question whether such an expansion of compulsory process was required by the constitution, we find the defense failed to make the requisite showing to merit such an order. It is undisputed that defendant was able to secure testimony from twenty-two other inmates at Georgia State Prison without transfers and that the four inmates in question failed to show they would be in actual danger of physical injury if they testified for the defendant without a transfer. Three of the four inmates had been transferred to Georgia State Prison from other institutions from which they had escaped. One of the four witnesses would have presented only cumulative evidence concerning conditions at the prison and the other three had given prior inconsistent statements to prison investigators. Although all prison personnel had been excluded from the pretrial hearing, these inmates nonetheless failed to satisfy the trial court that they were in danger of physical injury or mistreatment if they testified for the defendant.
On these facts, the trial court‘s denial of the transfer request has not been shown to constitute error.
3. Defendant contends the trial court denied him due process by refusing to release inmate records for use in his trial.
While it is clear that Brady, supra, requires production of evidence favorable to the accused which is material either to guilt or punishment, including evidence impeaching the prosecution‘s witnesses, Williams v. Dutton, 400 F2d 797, 800 (5th Cir. 1968), cert. den. 393 U. S. 1105 (1969), it is equally clear that Brady does not open the door for pretrial discovery of everything the prosecution knows about its and the defendant‘s witnesses. Whitaker v. State, 246 Ga. 163 (2) (269 SE2d 436) (1980), (see also 7 ALR3d 8, 22).
The trial court in this case clearly satisfied the disclosure requirements of Brady. One judge made an in camera inspection of the records and provided defendant with any exculpatory evidence and later another judge reviewed the records to insure that all exculpatory materials had been released. Pursuant to the court‘s order, the state provided the defendant with his own statements, the criminal records of the state‘s witnesses, and various other evidence deemed to be exculpatory. This met the requirements of Brady, supra, and no error has been shown.
Defendant argues that the first judge who made the in camera inspection was reviewing the files looking for exculpatory material as to all six indictees and that the files should have been reviewed on behalf of this defendant individually. They were, by the second judge. Defendant also argues that the first judge did not look for impeaching evidence. The only support cited for the proposition that the first
4. Defendant contends that the trial court erred in overruling his motion to dismiss for destruction of evidence.
In numerous pretrial motions, defendant, along with the co-participants, moved for discovery, production, inspection, examination and analysis of numerous items, some specified and other described generally. Included among such items were weapons and clothing taken from the inmates or found at the conclusion of the riot. The state responded as to the clothes and weapons that its goal had been to end the riot and to get the inmates under control and back into their regular dorms and that at the time the motions for discovery, etc., were made, the defendant‘s clothes and the weapons could not be located. The defendant moved to dismiss the indictment based on destruction of evidence, citing United States v. Bryant, 439 F2d 642 (D. C. Cir. 1971).
In United States v. Bryant, supra, the court held that Brady v. Maryland, supra, Rule 16 (Fed. R. Crim. P.) and the Jencks Act (
United States v. Bryant, supra, is not directly applicable here. The Jencks Act and Rule 16 upon which the court relied are not applicable to state prosecutions. The defendants in Bryant were targeted suspects when the tape recording equipment was set up and the recording was made. There was only one witness for the government as to what the defendants said and what they said constituted proof of the crime for which they were charged. In the case before us we do not have “intentional nonpreservation” by investigative officials.
Here the state was working under unusually exigent circumstances. They were dealing not only with some 240 sets of clothing and over 40 weapons but with rioting prisoners who had started fires and murdered 3 men. Their investigation began only after the inmates were stripped and their weapons were separated from them and they were returned to their dorms. The defendant does not claim bad faith or systematic destruction in the nonproduction of his clothes and the weapons. The trial judge ordered production, but the items could not be produced. He overruled the defendant‘s motion to dismiss the indictment concluding that the jury could decide the case and finding that nonproduction did not deprive the defendant of a fair trial. We find no error here.
5. Defendant contends he was deprived of his right to a fair and impartial trial by the trial court‘s denial of his motions for change of venue. Defendant and four inmates filed a motion for change of venue on grounds that an impartial jury could not be obtained in Tattnall County because of extensive prejudicial pretrial publicity and bias of local citizens and because there existed serious danger of violence to the defendants without removal of the case.
The original motion for change of venue was denied but defendant renewed the motion before trial. Additional testimony was heard9 and the trial court again denied defendant‘s motion but stated that he would reconsider the ruling if the motion was renewed after voir dire. The motion was renewed after voir dire and the trial court
The relevant law on change of venue is found in the Georgia Constitution (
The test adopted by this court for determining whether the trial court abused its discretion in overruling a motion for change of venue based on alleged juror prejudice is whether the jurors summoned to try the case are found at voir dire to have formed fixed opinions as to guilt or innocence. Jarrell v. State, supra; Patterson v. State, supra, Messer v. State, 247 Ga. 316 (4) (1981). The fact that conflicting evidence is submitted in support of and in opposition to the motion is not sufficient to demonstrate an abuse of discretion. Jarrell v. State, supra; Thacker v. State, 226 Ga. 170, 175 (173 SE2d 186) (1970).
The record before us shows an extensive sequestered voir dire of prospective and selected jurors which took two and one-half days and over seven hundred pages of transcript. A total of seventy-nine prospective jurors were examined, about twenty were excused for cause and fifteen challenged for cause by defense counsel were left on the panel. See Messer v. State, supra. All jurors in the venire put upon the defendant stated that nothing they had seen, heard or read had caused them to form an opinion for or against the defendant and that they had no fixed opinion as to the defendant‘s guilt or innocence.10
None of the jurors ultimately selected to hear the case knew either the victims or the defendant.11 None of these jurors had ever worked at Georgia State Prison and only five knew someone who worked there. Only four jurors had heard about the case itself.
We find that the prospective jurors passed the test of impartiality and the trial court did not abuse its discretion in overruling defendant‘s motion for a change of venue.
Challenges are, generally speaking, of two types: (1) challenges to the “array“; i.e., challenges to the panels as a whole, and (2) challenges to the “poll“; i.e., challenges to individual jurors. Hagans v. State, 77 Ga. App. 513 (1) (48 SE2d 700) (1948); Daniel, Georgia Criminal Trial Practice § 18-5 (1977). There are two types of challenges to an individual juror for cause:12 (1) for principal cause, and (2) for favor. Hagans v. State, supra. Challenges for principal cause are based on facts which, if proved, automatically disqualify the juror from serving. See
We deal here with challenges to individual jurors for favor (which, as noted, are challenges for cause).
The reference in
Although a juror may have been acceptable under
The defendant has identified prospective juror Billy H. Murphy as being the juror, out of the 15 challenged unsuccessfully, which the trial court most clearly should have stricken for favor. Mr. Murphy
On this record we cannot find that the trial judge erred in overruling the challenges for favor. Butler v. State, 231 Ga. 276 (201 SE2d 448) (1973); Taylor v. State, 243 Ga. 222 (2) (3) (253 SE2d 191) (1979); Tant v. State, 123 Ga. App. 760 (3) (182 SE2d 502) (1971); see also Hicks v. State, 126 Ga. 80 (1) (54 SE 807) (1906).
Our strict rules as to juror disqualification for favor are offset by the large number of peremptory strikes allowed a defendant in most felony cases, 20 strikes for the defendant, 10 for the prosecution.
Considering the number of peremptory strikes available to this defendant we note that, of the 15 jurors challenged for cause, only one, Mrs. Ward Shuman, sat on the defendant‘s jury. Mrs. Shuman‘s brother-in-law was employed by Georgia State Prison in “the industrial department or something.” The brother-in-law did not work on Sundays and hence was not working the day of the riot and Mrs. Shuman had never discussed the riot with him.
We find no reversible error in this enumeration.
7. Defendant contends the trial court deprived him of trial by a representative cross-section of the community by permitting the state to exercise its 10 peremptory strikes to obtain an all white jury.
The defendant in the present case has failed to prove systematic exclusion of black jurors by use of peremptory challenges by the District Attorney of the Atlantic Judicial Circuit and we find no merit in this enumeration of error. Swain v. Alabama, supra; Jordan v. State, 235 Ga. 732 (1) (222 SE2d 23) (1975); High v. State, 247 Ga. 289 (1) (1981).19
The defendant argues on appeal that the requirement, that systematic exclusion of black jurors be shown by the prosecutor‘s use of peremptory strikes in cases other than the case on trial, imposes a burden on the defendant of anticipating before trial that the prosecutor will misuse the state‘s peremptory strikes at trial. We note that, although the defendant tendered additional proof of alleged
8. Defendant contends the trial court erred in failing to voir dire qualified jurors concerning intervening pretrial publicity. Sequestered voir dire commenced on Wednesday afternoon and a venire of 50 remained on Friday afternoon after voir dire and strikes for cause. Although there was sufficient time for peremptory challenges and selection of the jury on Friday afternoon, the parties agreed to delay final selection of the jury to avoid having to sequester the selected jurors throughout the weekend.
The trial court charged the jury that “It is imperative that you keep the same state of mind that you under oath said that you had when you left this witness stand up here on your individual voir dire. That is that you are fair and impartial as between the State and the accused and that you would retain that impartiality throughout the proceeding. To enable you to do this the court instructs you that you are not to discuss this case with anyone, that means or includes your - any discussions with one another. It means that you‘re not to discuss it with any member of your family nor allow any member of your family to discuss it with you. You‘re not to discuss it with your minister or with any news media or anyone, not even with the Judge, not with the State, not with defense counsel, with no one. Just for all practical purposes your mind is closed on any discussion of this case from now until you have been discharged as a juror... [B]e very careful not to have the television broadcasting anything that has to do with this trial in any manner whatever, any phase of it. That you not listen to any of the broadcasts of any kind, that you not listen to the radio and that you not read any news accounts, whether it be a newspaper or whether they be in church bulletins or whether they be in any other, from any other source. You‘re simply not to have any information enter your mind about this case other than that information that comes to you from inside this courtroom. Close your mind to it.”
Upon return from the weekend recess, defense counsel renewed his motion for change of venue and requested another individual voir dire based on substantial local publicity concerning a prison protest march led by civil rights leader Hosea Williams which had culminated in Reidsville over the weekend. This motion for individual voir dire was denied but the trial judge agreed to propound
At the same time, defendant sought to challenge two members of the venire, Wendell Sikes and Mikki Monroe, concerning their activities over the weekend. Testimony was taken and juror Sikes was stricken for cause after he admitted demonstrating against the protest march. Juror Monroe remained on the venire after reasserting her impartiality and denying she made derisive remarks to protesters.
After the court disposed of these two individual juror challenges, defense counsel stated that they had nothing further, and the trial proceed although the venire voir dire agreed to by the court had not been done. Defendant now seeks to reverse for its absence.
Jurors are presumed to follow instructions given them by the court. This presumption exists until a contrary showing is made (as it was as to juror Sikes). But see United States v. Perrotta, 553 F2d 247 (1st Cir. 1977). Even assuming that the failure to re-examine the venire as to publicity of the events of the weekend constituted error, see United States v. Herring, 568 F2d 1099 (5th Cir. 1978), trial counsel has an affirmative duty to assist the court in conducting the trial and, where the court offers to take certain action in response to a multi-ground motion, the failure of the court to take such action after disposing of the other grounds of the motion will be deemed to have been waived where counsel does not remind the court to do so. Defense counsel‘s timely exercise of the right tendered by the court would have brought this matter to the court‘s attention and avoided any possible error. The defendant cannot rely on error which could have been so easily prevented.
9. Defendant contends that he was denied due process by the trial court‘s refusal to allow him to be present during the jury view of the scene.
Defense counsel filed a pretrial motion for a jury view on the ground that the jury‘s understanding of the layout of the prison was vitally important to allow them to critically evaluate eyewitness testimony. The motion specified that “said jury view be conducted in the presence of the court, court reporter, counsel, and defendant.” This pretrial motion was denied without prejudice when heard by the court, but after opening arguments the court indicated it was inclined to grant the view. The prosecution objected to defendant‘s presence at the prison for security reasons and the following colloquy occurred between the trial judge and defense counsel: “The Court: ... (T)he Court‘s not going to allow the defendant to go. Now, if you want to have the view of the premises without that then we all know the view of the premises is not a part of the evidentiary proceedings. It‘s simply background information. The court does not feel that the
“Mr. Ellis: Your Honor, defense will not waive the defendant‘s presence.”
“The Court: All right. The Court‘s not going to allow him to go. Now, does the defense still want to make its motion to view the premises?”
“Mr. Ellis: Your Honor, the only thing I can say is that we want to make a motion, but we‘re not going to waive his presence.”
“The Court: Well, the Court‘s going to disallow it. I‘ll grant your motion, but the defendant cannot be present.”
“Mr. Ellis: Thank you, your honor.”20
The trial court charged the jury that the view was only allowed to afford them a better understanding of the evidence and that they were to arrive at their verdict from evidence produced at trial. The judge instructed the jurors not to ask anyone any questions, except the judge, and he would see if such question was proper. The judge stated that the warden would point out changes in the prison instituted since the riot.21
On appeal, defendant contends the jury view is a stage of the proceedings under Georgia law and that under Chance v. State, 156 Ga. 428 (119 SE 303) (1923), he must be afforded the opportunity to be present in the absence of waiver.
Pretermitting the questions of waiver, and forced or induced or harmless error, we find the trial court action proper.
A jury view of a crime scene in the absence of the accused is not a denial of due process under the Fourteenth Amendment. Snyder v. Massachusetts, 291 U. S. 97 (54 SC 330, 78 LE 674) (1934); cf. 30 ALR 1357 (1924).22 Snyder was a due process case. Since Snyder, the
The right of the accused to be present at a jury view is therefore a matter of state law. See
There appear to be at least two types of jury view. One, an “evidentiary view,” is to permit the jury to view evidence introduced in the case which evidence is so large or affixed that it cannot be brought into the courtroom. See the automobile cases cited above. Another, “the scene view,” is to permit the jury to view the premises relevant to the case to enable the jury to better understand the testimony and other evidence introduced in court (e.g., a jury view of the scene of the alleged crime.23 A view of the scene is not “evidence” in the case. Shahan v. American Tel. Co., 72 Ga. App. 749, 754 (35 SE2d 5) (1945); see also State Hwy. Dept. v. Andrus, 212 Ga. 737, 739 (95 SE2d 781) (1956); Brookhaven Supply Co. v. DeKalb County, 134 Ga. App. 878, 880 (216 SE2d 694) (1975).24
Applying this analysis, we find no abuse of discretion in the trial court‘s exclusion of defendant from the jury view of the prison. The jury view in this case was not evidence and the trial court committed no error in excluding the defendant.
Regarding the defendant‘s argument that the warden pointed out changes at the prison since the riot, we note that no objection was made to this procedure when it was announced. Although we have no transcript of the warden‘s statements (see Snyder v. Massachusetts, supra), the defendant‘s counsel was present during the view and the state‘s first witness was the warden‘s administrative assistant. The defense had available diagrams of the dormitories involved and could have cross examined this witness as to the correctness of any statements made by the warden during the view. As in Snyder v. Massachusetts, supra, 291 U. S. at 118, we find no reversible error here.
10. Defendant contends the trial court erred in refusing to allow the testimony of a witness who had violated the rule of sequestration. At trial, the defense called Howard Manchel, an attorney for a co-participant, to impeach the testimony of Tommy Stroud, the state‘s principal inmate witness. Specifically, the defense sought to prove that Stroud had previously told Manchel that a number of inmates, including the defendant and inmate Henry Holt, were involved. At trial, Stroud denied on cross examination that he had implicated Henry Holt. Although the argument of this motion was not transcribed, it appears that the state objected on grounds that Manchel had not been sequestered and his testimony was not impeaching. The court refused to allow Manchel to testify.
The cases are conflicting as to whether a witness who violates the rule of sequestration is thereafter competent to testify. See McElroy
In Shelton v. State, 220 Ga. 610 (140 SE2d 839) (1965), the court, in answer to a certified question, held that where witnesses in a criminal case have been sequestered, and the defendant thereafter seeks to call as a witness a person who has remained in the courtroom, the testimony of such witness is admissible over objection by the state. In addition to numerous cases, the court cited the 6th Amendment (
In Wessner v. State, 236 Ga. 162 (3) (223 SE2d 141) (1976), we held that it was discretionary with the trial court whether to permit a witness who had violated the rule to be recalled to the stand.
However, the history of the law regarding witness incompetency has been to make more and more witnesses competent to testify (see the 1979 amendment to
In the interest of clarity and uniformity, in conformity with the trend toward witness competency, and in view of the constitutional rights of a defendant to call witnesses in his or her defense, we hold that a witness who has violated the rule of sequestration in a criminal case shall not be prevented from testifying. Shelton v. State, supra, and cases cited therein. See also Wright v. State, supra; Cobb v. State, 244 Ga. 344 (28) (260 SE2d 60) (1979); Watts v. State, 239 Ga. 725, 729-731 (238 SE2d 894) (1977). So much of Wessner v. State, supra, as finds to the contrary is overruled. It was error for the trial court to preclude Manchel from testifying as a witness for the defendant.
There remains the question of harm.
Stroud testified that the defendant and certain other inmates committed certain acts during the riot. Stroud‘s statement to investigators, which was admitted into evidence, contained some inconsistencies as to certain inmates and the defense sought to impeach Stroud based on these inconsistencies, as well as inconsistencies between Stroud‘s testimony and that of prison personnel called by the defendant.
Stroud was also cross examined about and impeached by introduction of his prior convictions (murder, burglary, motor
In closing argument the defense urged the jury not to believe Stroud, and the court fully charged the jury as to the credibility of witnesses and various means of impeachment.
We find that Stroud was amply impeached so that the jury could disbelieve him if it chose to do so. Apparently, the jury believed him, at least as to the murder and mutiny if not the aggravated assault on guard Foskey. In any event, we find the exclusion of Manchel‘s testimony to contradict Stroud by showing that Stroud has said Henry Holt was among the participants was harmless beyond a reasonable doubt.
11. Defendant contends the trial court erred in overruling his objection and motion for mistrial based on the prosecution‘s reference during closing argument to the conviction of Jessie Whitaker, the co-participant tried shortly before.
Co-participant Jessie Whitaker was tried and convicted on three counts of murder and one count each of simple battery and simple assault on May 12, 1980, approximately three months before defendant was tried.
At defendant‘s trial, defense cross examination established that Whitaker had actively participated in the riot and that he had stabbed both guards, sought to obtain officer Frankie Wells who had been granted asylum by inmates in A-3 dormitory, and had given orders and had acted, along with defendant, as inmate spokesman in negotiating an end to the riot.
Maintaining throughout the trial that the defendant was being tried because of his role as an inmate spokesman during settlement of the riot, the defense called correctional officer Jay Kries to the stand. He testified on direct examination that the defendant and Whitaker had opened the barricaded prison dormitory and brought the riot to conclusion. On cross examination of Kries, the prosecutor, without defense objection, established that Whitaker had been previously tried and convicted of murder resulting from the disturbance at the prison.
The prosecutor in closing argument stated, “If you believe the state‘s witnesses then this man was the leader of this group of people from the outset because he was the first man that grabbed Preston Foskey. There‘s more than one witness that has said that. And he was the last man, as the spokesman along with Jessie Whitaker who has been convicted of these same crimes, was the last man to speak for the group when they were barricaded in A-2, from the beginning to the
“The grant of a mistrial for improper argument of opposing counsel is very important, and should be liberally exercised in all cases where counsel abuse their right of argument by prejudicing the case of the opposite party. However, it is necessarily a matter largely within the discretion of the court; and unless it is apparent that a mistrial was essential to the preservation of the right of fair trial, the exercise of this discretion will not be interfered with.” Powell v. State, 179 Ga. 401 (4) (176 SE 29) (1934). Accord, James v. State, 215 Ga. 213, 215 (109 SE2d 735) (1959); see also
The prejudice, if any, to defendant‘s case occurred when the testimony as to Whitaker‘s conviction was given without objection, not when the prosecutor referred to that fact. As noted in Thompson v. State, 150 Ga. App. 567, 568 (258 SE2d 180) (1979), “It is the introduction of facts not in evidence that requires the application of remedies such as mistrial or rebuke.” Accord, Ruffin v. State, 243 Ga. 95, 103 (252 SE2d 472) (1979); Pressley v. State, 207 Ga. 274 (4) (61 SE2d 113) (1950). Further, the record shows that in defendant‘s argument reference was made to Whitaker‘s trial. We find no error here. Wynn v. State, 207 Ga. 141 (3) (60 SE2d 767) (1950).
Defendant urges that Kries’ testimony as to Whitaker‘s conviction was inadmissible in this case and that no waiver should be found where the objection and motion for mistrial were made before the case was submitted to the jury (i.e., were made during closing argument). We disagree for the reason that closing arguments are to be based upon the evidence in the case and reasonable deductions therefrom. Gentry v. State, 208 Ga. 370 (4) (66 SE2d 913) (1951). Thus, the evidence introduced during trial fixes the scope of the closing arguments, and counsel are entitled to rely on the admitted evidence in making the argument without fear of referring to evidence in the case which might be cause for a mistrial or rebuke. The defendant did not move to strike or exclude from the jury‘s consideration Kries’ testimony as to Whitaker‘s conviction and thus McCalman v. State, 121 Ga. 491 (5) (49 SE 609) (1904), is inapplicable.
There being no reversible error, the judgment is affirmed.
Judgment affirmed. All the Justices concur, except Hill, P. J., who dissents and Smith, J., who dissents to Division 5 and the judgment. Gregory, J., not participating.
DECIDED MARCH 12, 1981.
Dupont K. Cheney, District Attorney, Arthur K. Bolton, Attorney General, Harrison Kohler, Assistant Attorney General, for appellee.
HILL, Presiding Justice, dissenting.
In light of the facts set forth in Divisions 5, 6 and 8, I would find that at least the motion for change of venue made after the weekend demonstration and counter demonstration should have been granted. Compare Whitaker v. State, 246 Ga. 163 (269 SE2d 436) (1980). I therefore respectfully dissent.