*1 question custody of minor children to the juvenile court, investigation either for report or for investiga- determination, tion final provision such is permissive only and question refusal transfer such is re- error. versible shown, being
4. There no reversible error the judgment of trial court affirmed. Judgment All the Justices concur. affirmed. July September 13, 8, Submitted 1971 Decided 1971. Manning Read, Read, Jr., & Charles D. for appellant. Hunter, John Calvin for appellee. (two cases). 26620. MORRIS THE STATE
Argued July September 13, 14, 1971 Decided
Rehearing Denied October 2971. Gambrell, Russell, Killorin, Forbes, &Wade Edward W. *3 Killorin, Stumm, Richard L. for appellant. Slaton,
Lewis R. District Attorney, Feldman, Joel M. Tony Hight, H. J. Melvin England, Arthur Bolton, K Attorney General, Hill, Jr., Harold N. Executive Attorney Assistant General, Courtney Stanton, Wilder Robins, Mathew Assist- Attorneys General, ant for appellee. Justice. appeals
Grice, These two are by Donald Harold Morris from judgments of conviction and sentence im- to life prisonment for murder and robbery, armed and also from denial of his amended motions for new trial. He was indicted for these along Norwood, offenses with L. James Paul Doug- las Pearce and Donald Bridges by the grand jury of Fulton County, and was tried and convicted the superior court of county. The victim of the murder was Santos Martinez and of the robbery was George Nastapoulos. The appellant was tried separately for both offenses upon one trial. appeal
His involves 36 enumerations of error. One enumeration complains of denial of the appellant’s challenge to array because Code Ann. exempts 59-112 § persons numerous him from duty thereby and deprives 42 community and of the a cross-section jury representing
of a
and
under
Sixth
to which he is entitled
the impartiality
Constitution,
the United States
Amendments of
Fourteenth
law,
law, equal
of
protection
due
process
and denies him
trial,
freedom from cruel and
proper jury
a fair and
Sixth,
Fifth,
in violation
punishments
unusual
Amendments to that Constitution
and Fourteenth
Eighth
Georgia
Constitution.
and in violation of
State,
Manor v.
223 Ga.
not valid. See
complaint is
This
(2)
(157
(1)
State,
431);
v.
He contends him. The motion charges against motion for dismissal arraigned, that he had not been alleged substance coerce, in tried to custody prosecuting officers while him; copy and that he was denied a timidate and harass and indictment. the warrant this motion. The record correctly trial court denied arraigned. The trial court
shows any appar- mistreatment and testimony denying such heard appellant’s it instead of the testi- ently chose to believe Likewise, denied a allegation being as to warrant mony. of the indictment was not established. copy court erred enumeration avers that the trial Another hypothetical improper counsel to ask allowing State’s on dire because such prospective jurors voir questions do under juror to define what each would questions sought However, questions related of facts. generalized state law, *4 adherence to and therefore were impartiality to and them. to the criticism made of subject overruling appellant’s the of urged Also as erroneous is of questions upon cross examination objection to the State’s to of his motion testifying support him when he was In connection he hearing. preliminary dismiss at the alleged of an concerning portions argues questions that the statement, alleged which he denied memorandum of an examination, scope the of the were making, were outside dismiss, to in- hearing to on the motion and irrelevant make damaged right his to an unsworn fringed upon and there- occurring immediately trial statement after. questions properly these were overruled. objections
The to motion, germane were to the matters involved They to a right thorough with the and keeping and State’s sifting cross examination. admissibility of evi
Three the enumerations involve Arizona, Miranda v. requirements dence under the 436, supra. U. S.
(a) insists that the trial court erred overruling upon hearing his motions and preliminary oral alleged the trial to aforementioned suppress investigator to an for the district by made him statement to in an un- attorney’s allegedly writing office and reduced memorandum. signed this, urges he did not make the state-
As to that did, under ment, that he it was made assuming but rights his under the deprived him of circumstances which to the United Con- Fifth and Fourteenth Amendments States arrested, it was after he was says He that made stitution. coerced, arraignment, time without detained an unreasonable talk, him to induce to but promises threatened and offered being and copy charges without before he was shown required the Constitution of the rights informed his States, not to counsel, to remain silent and right his United being to have present, without counsel discuss matter if he appointed talking before have counsel counsel had no funds to hire counsel.
(b) written purported insists that Appellant also him did not sign had waiver the State with the right to remain silent lawfully warn him of and will be used anything said can explanation he not oth- him in against Appellant court. avers failure, by the followed erwise so warned and such *5 44 occurred, right him of his deprived
interrogation which the Fifth and Fourteenth under against self-incrimination to the United States Constitution. Amendments meritorious. these enumerations is Neither of the alle- testimony which contradicted The offered State gations recited above. court authorized evidence the trial was
From the State’s appellant was any questioning find that to prior to case, under the Miranda rights advised as to his waiver of form that orally counsel supra, both here warnings That stated signed. he read and be "may "could be used” and used” instead anything said difference, inconsequential "can and will be used” is an held, e.g., Grady, have United States v. numerous cases 5). (CCA F2d 1091
(c)
enumerates as error introduction
The
also
re-
of the waiver of counsel form hereinbefore
evidence
the same
as set forth
the motion
grounds
ferred to
(a)
(b)
made in
control ad-
rulings
to
The
suppress.
(3)
him here. See Walker v.
The emanating of the of this witness portions strike alleged appellant’s from the memorandum statement him, urging hearsay this was inadmissible since the had not it. prepared witness permit testify
It was not error to this witness to as to the provides contents of this statement. Code 38-1707 that "a § may memory by witness and assist his the use of refresh memorandum, any written or he provided instrument refreshed, finally speak shall from his recollection thus or willing shall be from the It is positively paper.” swear required the witness himself make the memoran- Lenney v. Finley, dum. SE Here prepared the evidence showed that the memorandum was supervision. under the witness’ He testified that what the had told him. What correct statement of with the above transpired respect accordance quoted Code section. taken that position motions for directed acquittal
verdict for granted should have been because the fail to probata allegata sustain as to both indictments. robbery As to the the enumeration charge, points out that alleges money the indictment that the allegedly taken from George Nastapoulos "was the property per aforesaid robbed,” money son so while the evidence shows that *6 Foods, the of a property corporation, "Superior Incorpo rated”; and therefore the of that appellant, proof, because is protected against another for the prosecution same of fense, subject but is to it. As to the murder the charge, motion that urges there is no evidence which would support murder, a depended verdict for since that upon his first being guilty participant robbery. found as a the position This as to variance is not valid. The evidence the in possession money showed victim was of the merely bailee for corporation. the See this connection 315) Spurlin v. and cita- tions.
Therefore, motions, the so de- predicated, were nied.
Two of the relate to enumerations remarks and by evidence as to other robberies committed allegedly appellant cautionary and pertaining instructions thereto. attorney opening jury The State’s his statement to the expected prove appellant said he had committed robberies; other and also introduced evidence as to such appellant other robberies. The made motions for mistrial on occasions, each of which were denied. these The contends that appellant such statements and evi- irrelevant, immaterial, were prejudicial dence and inadmis- in that they appellant sible indicated that had a for crime and therefore char- propensity improperly put his evidence; they acter in and that were too remote in time any with logical and did not have connection the offense for he was on trial. He that what transpired which insisted him of a fair trial and due of law under deprived process the Sixth and Fourteenth Amendments to the Constitution of the United States. enumeration cautionary second the court’s concerning
instructions evidence were tantamount to an on the evidence and did not opinion give jury all the subject law on the covered. are not
These enumerations valid. Both the alleg- remarks related to offenses by edly years committed within three or four present trial. pertained similarity Such a between the method used in these offenses and that claimed to have been instance. employed
It tended to show that the head appellant was ring operating of robbers the southeastern area. The trial court on each occasion instructed the relating evidence to other crimes to be scheme, the limited purpose showing considered for mo- tive, intent and course of conduct and purpose only. for that sought
These remarks
evidence
to show a connection
prior
between
crimes and this one insofar as
his
establishing
concerned,
guilt
particularly
here was
as to
method
*7
properly
commission. The court
denied the motion for mistrial
as to the
and
remarks
allowed the evidence. See in this
(1) (110
286);
State,
connection
v.
Williams
Appellant that a insists mistrial should have been granted because a witness testified that the stated appellant that he wanted "plea,” asserting to enter a this vio rights lated his under the Fifth and Amend- Fourteenth
47 Constitution, merits to the United and the Constitu- States Georgia. tion and laws any was denied. Before evidence
The mistrial adduced moved to evidence as to his suppress was statement, guilt. amounted to a confession of Here which into. thoroughly gone Appel- the issue of voluntariness was it all off his and expression "get lant’s his desire chest hearing to enter a was a that statement. After plea” part of evidence, the trial court denied the motion to and suppress voluntary. determined that the statement was expressly Denno, hearing required by This constituted a Jackson v. 1205). 908, U. 12 1 S. 368 SC LE2d ALR3d There ample support evidence to determination. (3) (174 Walker Ga. substance,
An enumeration charges, dis attorney’s trict office made a "deal” with previously two witnesses, convicted It Pearce and Norwood. recites that exchange testimony against appellant, for their the dis attorney trict would later extraordi acquiesce granting nary motions for new trial for two and those witnesses by recommended lighter pleas guilty sentences after new Appellant process them. insists that this denied him due equal protection of law violation of the Sixth Four teenth Amendments to the United Constitution and States I, I, Art. It Georgia argued Sec. Par. V of the Constitution. compounded by during that harm was counsel State’s trial questioning Pearce and Norwood about whether there any were them and "promises” accepting "deals” or made to answers, negative their that the false knowing answers were attorney’s agreed because the district office had to reward by subsequent them for their as shown reduc shortly tion in after It given appellant’s sentences conviction. attorney’s revealing is also averred that district agreement denied due of law and process *8 equal protection foregoing of law violation of the constitu Illinois, provisions holding Napue tional under the U. S. 264 SC 3 LE2d The enumeration also extraordinary avers that did not know of the mo- tions for new trial and reduced sentences until after his motion for new trial was denied.
There merit in enumeration. is no this Upon replete by the trial the evidence was with denials deal, any the two that there promise witnesses such or testimony. other influence their improper involving By to, were, doubt, questioning jury above referred no aware that these two witnesses had turned evidence State’s and, doubt, care, no knowing they, scanned with circumstances, under might testimony such feel that their for the State would be beneficial to them. Their evidence was that planned partici- these crimes and pated Thus, with these in carrying witnesses them out. jury had an of credibility issue and was in to position de- cide whether testimony was true or perjured. They re- against solved the issue the appellant.
That the attorney’s subsequently district office acquiesced lighter new trials and being imposed sentences these two witnesses does not establish that their given had been There falsely. was no showing perjured testimony was knowingly by prosecuting used authori- here, to ties obtain the convictions distinguished as from the decisions relied upon by the appellant.
Nothing in requires this enumeration that appellant’s conviction be set aside. It follows that his motion ad- as to ditional relating record to the extraordinary motion for new trial and reduction in sentence is denied.
The trial court did not err allowing State’s counsel make a statement "in place” his explaining why he charges dead-docketed against the co-indictee Bridges. Appellant claims that this statement contrary to the evidence, rules of prejudicial, amounted placing State’s counsel before the judge person’s of a guilt innocence, or and denied him a fair trial and process due law depriving him of the right to cross examine witness es, designated violation of provisions of the United and Georgia States Constitutions. Under the circumstances here, the appellant had the opportunity of questioning *9 oath, did not It State’s counsel while under but do so. has court, "Attorneys are officers of the and put been well a statement to the court in his is facie true place prima no further verification unless the same re- needs is quired by the court or the opposite party.” Whitehead Furthermore, App. charges against Bridges whether were dead-dock- properly eted was irrelevant to the issue as to thus appellant’s guilt; no harm resulted to him here. did in denying appellant’s
Nor the trial court err mo for ground permitted tion mistrial that it the State Bridges police to ask the witness whether he knew that alibi, officers checked out his when the answer showed that only hearsay knew that he could answer from State However, knowledge. given the answer which was was not to, responsive question objected to the whether the witness personal knowledge.” knew of his "own This does not con grounds stitute for mistrial. complaining
There is no merit the enumeration sustaining objection appellant’s ques the court’s regarding tions to the witness DaMour statements to Da- by Mour Pearce with reference to the aforesaid "deal” Pearce’s allegedly by made the State with Pearce to obtain testimony. testimony It was offered urged is DaMour’s motive, in pre and frame of mind to show Pearce’s scheme However, testimony. appears from the viously giving his testimony for appellant sought record that admission of wit, purpose, an additional to show witness statement, contradictory previous Pearce had made to him a Therefore, correctly made a "deal.” the court that he had 38-1803, with Code complied ruled that had not § calling that a foundation had not been laid first proper contradictory of the the previous to the attention witness here. statement. This was not done evidence, any allowing Neither was there error appel of conviction of impeachment purposes, for records when at that time the trial lant’s witness DaMour testimony. is no given any had not material This witness prevent impeachment testimony. reason to It was Code admitted. 38-1804. §
No reversible error in the is shown enumeration com plaining overruling appellant’s objection to the traveled, witness Davis’ concerning where Davis at obviously the direction of the Pearce. witness Pearce had testified, previously objection, without to the route traveled. Hence, even if hearsay, irrelevant or it was not harmful for ground reversal.
The trial court did not commit reversible error in re *10 calling and allowing testify detective witness to on re cross examination as to a persons conversation with about an parked This, automobile near the scene of the crime. irrelevant, urges, hearsay, was prejudicial and trial, him deprived of a fair confrontation of witnesses and process due of law under grounds stated of the United and Georgia States Constitutions. this,
toAs the following occurred. Two witnesses had they sworn that had seen a described automobile at crimes, scene of the relayed and had this information to the detective witness. He had testified as a defense witness. Subsequently he permitted was to be recalled for further examination, stating cross that he had checked this lead with the owner of an automobile bearing this description, and determined that it had no part the crimes.
(a) Whether a may witness be recalled is within the trial court’s discretion and will not be interfered with unless manifestly abused. Here there was no abuse.
(b) The testimony witness’ toas the conversations with the persons with reference to the hearsay. automobile was How- ever, the trial court admitted for the purpose sole of ex- plaining the witness’ conduct in taking specified his action checking him, out the lead previously given and so instructed at the time. This is one the exceptions of under Code 38-302. No cause for reversal is shown here. §
There no in sustaining was error objection State’s appellant’s questions to to a witness concerning witness’ efforts to obtain a job appellant. for the This being to the issue tried. germane not motion denying appellant’s Nor was there error for that three him in handcuffs complaining jurors mistrial saw courthouse, from of while he was led violation stated of the Federal and This was provisions State Constitutions. a matter which addressed to the discretion of the trial itself ground court. Such a situation is not for mistrial.
An enumeration contends that denial to defendants on verdict, right trial in criminal cases of the to a directed when right, defendants civil cases have that is a denial of due pro equal cess of law and of law in of protection ap contravention Five, rights under and Fourteen pellant’s Amendments Six of the Georgia United States Constitution and of Constitu tion following specified decisions of this for granting appellant’s motions directed verdict. complaint
This is not meritorious. absence statu- for in criminal does tory procedure direction verdict cases relied provisions not offend the Constitution (Direction here. in criminal cases was authorized verdicts 461; trial. L. Code Ann. subsequent p. Ga. 27-1802). §
Furthermore,
no
standing
here the
has
make
he,
evidence,
attack
under the
this constitutional
since
not entitled to a directed verdict. The evidence would not
*11
a directed
in his behalf.
have warranted
verdict
the
Entering
judgment
denying
the verdict and
general grounds
motion for new trial on the
was
appellant’s
the
The
supported
not erroneous. The evidence
verdict.
two
they
com
co-defendants Pearce and Norwood testified
that one of them
robbery
mitted the armed
shot
while the
waited outside the
pistol,
victim with
away in
two
store and drove them
his automobile. These
the criminal
appellant planned
witnesses testified that
and that he directed its execution.
enterprise
circumstances,
equally
under
appellant,
these
(134
State,
v.
271
guilty with the others. Gore
(1) (9
909);
36);
State,
v.
SE2d
SE
Jenkins
Ga.
240).
(8) (150
State,
Complaint is made that the trial court erred in deny ing appellant’s motion for ground mistrial attorney State’s his concluding argument jury to the stated that appellant’s counsel failed to theory state his statement, his opening thereby violating right his to remain silent, due process of law and a fair trial under the Sixth and Fourteenth to the Amendments United States Constitu tion.
This complaint is without merit.
There was no error in failing
charge
the jury
toas
alibi,
the law of
which appellant avers was his sole defense.
However, there was no evidence to
giving
warrant
a charge
subject.
stated,
on this
already
As
the evidence showed that
waited near the scene of the crime while the
robbery and murder
took place and then whisked them
away. There was no
showing
evidence
the impossibility of
appellant’s presence at the scene of the crime at the time of
commission.
See Jackson v.
Two enumerations relate to reference in the court’s charge to the jury to the defendant’s "statement.”
(a) The first is that it was error to charge that jury should determine the facts from the evidence and the de- fendant’s statement in that it was confusing and misleading because the charge did not clarify whether this referred to the defendant’s unsworn statement jury or his al- leged statement to the investigator from the district attor- ney’s office. Appellant urges prejudicial because the could have believed that the court was giving opinion its that such statement made, was actually which the appellant denies. This contention is not valid. The court charged with reference to the appellant’s un- statement, sworn which was not evidence. The other state- ment constituted evidence. No confusion could have resulted as to the two statements.
(b) The second complaint with reference to a statement by the defendant is that the court charged the jury that he alleged "denies that such freely statements were and volun- made,” tarily whereas fact he denied that he made the statements. The complaint cannot be sustained because the charge fully court’s covered this issue. Walker v. (6),
Ga. 292 supra. error enumerates as to the court’s charge to the jury that evidence admitted for a limited purpose only could be considered along with all the other evidence, and that jury could it give weight whatever receive, credit it it thinks is entitled to urging that this misleading was and confusing. No given reason is for this criticism and we know of none to sustain it.
It is insisted that the court erred its charge as to what the jury must find admitting before or considering appellant’s alleged incriminatory statement.
First, argues he that the charge misleading and confus- ing it jury because submitted the issue to the of whether he in custody made, was at the time it allegedly when the uncontradicted evidence was that he in custody, was then and that therefore the charge allowed the jury erro- neously considér such statement on an illegal incorrect and theory that he in custody was not and thus the other con- requirements stitutional need not be met.
Next, argues he that the charge erroneously instructed jury question on the of the necessary constitutional in that it warnings charge did not the jury must find it explained to him that he the right has to re- main silent and that anything said can and will be used against him in court. positions
These are not sound. The charge was not calcu- lated to cause the to conclude that the appellant was not then in custody. The instruction as to the contents of decision, the warnings was sufficient under the Miranda 384 U. supra. S. See also Code 38-411 and Division 6 § opinion. of this
The appellant complains charge on reason confusing misleading able doubt was would *13 had a total they him if acquitting from jurors preclude charge subject objection. this The is not doubt. charge the on murder erro that He maintains him to be there no evidence to authorize in that neous murder, the did not accu charge and that guilty of found necessary legal principles the adequately cover rately contrary, previously as held this murder. On the as to of mur finding guilty a the evidence authorized opinion, respect is re charge in the in this specific No omission der. feel, principles. gave required The upon. charge, lied we re-charge court erred in a giving He also avers that the re-charge The end of the stated jury. to the it a reasonable guilty they beyond find him if believed could it and re-de complaint re-charge failed to doubt. is which they on doubt and the matters fine the rules reasonable regard. take into in that The record shows should account on jury requested re-charge legal principles character, the court had good charge previ and that its fully charged to reasonable doubt. ously Therefore, necessary repeat it was portion this request no charge, particularly where was made. here.
No error was committed In foregoing rulings, view of the the trial court did in denying every ground not err each and of the amended for new trial in the motion which embraced enumera made here. tions rulings find no error in the enumerated as error in
We appeal. concur, Felton, Judgments except All the Justices affirmed. J., who dissents. Justice, I from dissenting part. dissent
Felton, judgments rulings of affirmance and from the Divisions 6, 11, 14, 8, opinion. and 23 of As to admission crimes, of evidence of similar dealt with in Division if there is a case or wherein has held cases this court proof such evidence is admissible without of a conviction of they expressly the defendant of such crime or should be overruled.