*1 reverse. appeals. We Former wife use of arises from the provision in the above only vagueness “or” for “and” be substituted held that “or.” We have
the word Reynolds parties. of the the intention to effectuate order Ford, (1927); Tennell v. Wingate, Ga. 317 SE reveals contempt hearing transcript of the (1860). A of the review education college to a to contribute always intended appellee college very long period unlikely Since it for the children. be provision would eighteen, age before would occur attendance child who long as a contemplated support so meaningless unless We further in school. remained age eighteen had attained at- mean continuous student” “full time phrase construe reverse We therefore year. school the normal during tendance entitlement question on the hearing for further remand provision agreement. under this support to child All concur. the Justices and remanded. Judgment reversed February 28, Decided Rehearing March denied Newton, Jr., Newton, T. & John appellant. Carlisle Adams, Park, Jr., Owen J. appellee. Jack L.
40511. SPENCE v. THE STATE. Justice.
Smith, III Otis Franklin was indicted for the death of shooting Spence, jury Sarah Jo and tried before a Richmond County Superior Appellant, years Court. who was 19 old at the time offense, im- was convicted of murder and sentenced to life prisonment. Appellant pursue appeal failed to a direct 9,1983, September his conviction November but on he was granted appeal leave file an time out of of his conviction to this error, In appeal chiefly court. he raises five enumerations attacking judge’s trial admission into evidence of a statement he 5,1982, in shooting made on which he admitted his mother. We find no error and affirm. trial,
From the evidence introduced at a jury was authorized to 30,1981, day shooting, appellant spent find that on October friends, arriving p.m. afternoon with home at 2:30 His mother conversation, shortly Following arrived home thereafter. a brief appellant, who apparently angered by his mother’s refusal to let him use the family car to attend a local fair that evening, walked to his parents’ bedroom, retrieved his father’s .22 caliber revolver from drawer, dresser room, returned to the living and shot his mother twice in the head at close range, killing her. Appellant then took her car keys drive, and went for a stopping to see friends and to visit a local *2 shopping center. Shortly before p.m., 5:00 he returned home and police alerted that he had found his mother shot to death. Lieutenant Ronnie Strength County Richmond Sheriffs Department questioned on the night of the shooting. He denied knowledge crime, claiming instead that he gotten had home from school at afternoon, 2:30 that spoken amicably with his gone for a in car, drive alone then had body returned to find her slumped in living room chair. Through subsequent investigation Strength learned that had not high attended his school that day as he had claimed. Investigators also determined that because there was sign no entry forced at the scene the shooting was probably an “inside job.” Lieutenant Strength interviewed appellant again 4, on November but no new information surfaced concerning the shooting.
Appellant and his father in together continued to live the family residence. In early December of 1981 appellant’s father discovered items, several household including motor, an outboard set, television and his deceased wife’s wedding rings, were missing. The thefts were reported police was arrested and charged with three counts of by taking on 11. December While incarcerated on the theft charges, appellant questioned regularly (at times, record) least six according to the concerning his mother’s death. 21, On gave December he Strength Lieutenant a statement in that, which he asserted one week after the he shooting, disposed had weapon by murder throwing it into the Hill Clark reservoir. Appellant explicitly did not killing date, admit his mother on this but promised he Strength give that he would him more details of the shooting January 2, birthday. his Police searched without success area place indicated as the resting for the murder (The weapon. recovered.) gun was never Finally, January 5,1982, appellant gave Strength Lieutenant a detailed describing statement he how had shot his 30,1981. mother on the afternoon of October He was then indicted for murder. charges The theft were eventually dropped.
1. Although not
by appellant,
enumerated
as error
we have
presented
examined the evidence
at trial and conclude that
it was
sufficient
to authorize a
rational
trier of fact to find
guilty
beyond a reasonable doubt of
Spence.
the murder of Sarah Jo
61 LE2d
Jackson the evidence sufficiency of only challenge Appellant’s that the trial enumeration, alleges in his fourth contained This verdict. a directed his motion for erroneously denied court a verdict not demand The evidence did merit. is without enumeration 27-1802); Graham 17-9-1 See OCGA acquittal. (1983). his error, appellant alleges 2. In first enumeration shooting he admitted police 5 statement (a) the the statement admitted because improperly mother was under an (b) appellant was held arrest, made while illegal result of an (d) without (c) voluntary, and made bond, free and excessive suppression grounds We will address of counsel. benefit by appellant. enumerated the order statement that his (a) by appellant’s father discovery Following the motor, a television set wedding rings, an outboard former wife’s residence, were notified of family from the missing He was on December appellant was arrested thefts and pretrial At the taking. of theft separate three counts charged with statement, Lieutenant suppress his appellant’s motion to hearing on testified County Department Sheriffs Richmond Strength of the *3 information from was based on appellant decision to arrest stolen previously had appellant the effect that appellant’s father to (this theft was pawned and had high ring his school class mother’s independent investigation police), to as well as an reported not several approached had that Strength which revealed items, actually sold selling the stolen and acquaintances about the boat motor for $65. the television for and $50 it was not illegal arrest was because Appellant contends that his statement, cause, inculpatory and that his probable based on thefts, must be custody he was for the was obtained while Based on illegal agree. arrest. We do not suppressed as a fruit of the on investigators known to objective facts and circumstances the caution could have believed December a man of reasonable Brinegar v. by appellant. committed See the crime of theft had been 1879) (1949); (69 1302, 93 States, 160, 175-76 LE 338 U. S. United 237) (1982). (10) (297 State, Appellant’s SE2d Durden v. merit. point on this are without contentions (b) have that his statement should Next contends it was made while he was held suppressed been because Following custody charges. under an excessive bond for the theft County and arrest, in the Richmond appellant was incarcerated offense). $90,000 ($30,000 Lieutenant for each theft bond was set at be thought was to relatively high that a bond Strength testified necessary appellant’s for the reasons: incarceration would facilitate into ongoing investigation the the death of his prime which suspect; police was the were concerned for the safety home; if appellant’s father were allowed to return attempt and there that appellant might was chance to leave town to escape punishment the thefts.
The amount to case of bail be assessed each criminal is generally within trial the sound discretion of the whose judge, not appeal decision will be reversed on absent clear abuse of that Grimes, Jones v. 27-901); OCGA discretion. 17-6-1 bail, Ga. 585 SE2d fixing When the amount of judge chiefly accused, probability to consider if freed, appear trial; will at other to factors be considered include the ability offense, accused’s pay, seriousness of the and the reputation. accused’s character Id. say and at 587. We cannot particular case, under facts including appellant’s past of this misdeeds and his justified safety, father’s fear for his bail was so excessive as to constitute abuse of judge’s an discretion. This enumeration is without merit.
(c) Appellant contends that his was statement freely made, voluntarily product but was the of subtle coercion duress occasioned four-week confinement on the theft time, charges, during alleges, subjected he was to con- persistent by police officers, tinuous and questioning particularly Lieutenant Strength. trial, again trial,
Prior the beginning at Jackson-Denno hearing held to determine whether appellant’s was freely voluntarily statement made. each On occasion the judge voluntary. determined clearly statement Unless erroneous, as findings court’s determinations factual credibility admissibility relating upheld of a confession will be appeal. (1983). Strickland ample We support find finding evidence trial court’s issue. Prior to giving against the statements which were later used trial, him fully rights advised his constitutional *4 under the Miranda decision. Each time he executed a written waiver of those rights, spoke police. then of Appellant’s allegations by coercion police supported only by and threats his trial are testimony. every His of by version events was contradicted other witness who testified In of concerning light statements. totality statement, of the circumstances surrounding appellant’s we find no error.
(d) The final appellant reason advanced suppression his statement is that it was presence made without benefit attorney Jim charges, on theft Following appellant’s arrest
counsel.
appeared
him. Thomas
appointed
represent
Thomas was
1981,
hearing at
preliminary
behalf at a December
appellant’s
three theft
on the
grand jury
over to the
appellant was bound
occasions
on several
counts,
Thomas conferred
appellant
th6r6dft6r
(84 SC
States,
Appellant 246) it violated (1964), proposition 12 LE2d for the appellant interview police right to counsel Sixth Amendment represented known he was presence once it was Thomas’ outside First, record for three reasons. reject argument this counsel. We prior to form a waiver of counsel executed shows in This is question. each of the occasions investigators speaking any voluntarily waived knowingly and proof’ “strong questioning. during of counsel presence have had to the right 1755, 60 LE2d Butler, 441 U. S. North Carolina January (1979). Moreover, that on although appears there charges, appellant on the represented that Thomas aware Thomas, police, or in the record that either is no indication to the regard represented that Thomas understood testimony supports Thomas’ trial investigation. murder ongoing questioning prohibit that Massiah does not view. It is settled an offense here, investigation concerns employed where sort represented is known to be in which the accused separate from 237) (1980); State, by counsel. See Drake v. 1983) (en banc). (11th Cir. Lisenby, States v. 716 F2d United here, since applies that Massiah even Finally, it is doubtful adversary of formal prior to the institution made his statement In Drake v. charges. him on the murder proceedings against statements post-indictment limited the rule of Massiah to supra, we speaks of counsel: “Massiah presence made outside of the are elicited from a incriminatory statements circumstances employed appointed or of his counsel permission defendant without (Emphasis Id. 800. already has been indicted.” at in a case which he reasons, is without merit. this enumeration supplied.) For these 5 statement to the introduction of Prior judge, trial, exchange occurred between Attorney District attorney, and defense counsel: witness]: district [to The Court you appellant] talked about.” jury “Tell the what [to [and — Nicholson, to that Mr. you respond “Before Attorney]: Defense sure, I am to the content continuing objection, have a that we your pretrial motion subject It is the matter conversation. admissibility up. objected took Mr. Nicholson has statements, may turn they whatever conversation and admission *5 be, standpoint they out on the basis from his client’s were not to a ruling The Court made determin- and freely voluntarily given. they admissible, the ing that were and that conversations but away to continuing objection that still does not do with the as inadmissibility, point I to the jury and want out that and for you this continuing objection any record want to make to of investigators your conversation between the defendant and the “Yes, sir, Mr. you client.” Nicholson: and think should the instruct jury question it is a of fact as to The voluntariness.” Court: “Well, course, my ruling just My admissibility. to determine does not bind ... It is an fact ruling just any them issue of like other fact, issue of it is in At it is their discretion. the conclusion of the case weight (Emphasis determine the of the evidence.” (Code supplied.) 81-1104), Ann. Citing appellant OCGA 17-8-55 § § in his second by enumeration contends that this statement the trial judge improperly the expressed opinion appellant’s court’s as to Appellant’s guilt. trial failed enter a counsel to either contem- poraneous objection or move for a based on mistrial these com- by ments the trial judge. preliminary
Once the issue of has voluntariness been deter by presence, mined outside of the ulti judge jury’s question voluntary mate character of the statement and its they truthfulness is for the jury, are not bound the trial court’s this issue. Young earlier determination App. 410) (1979). SE2d judge correctly trial here recognized this principle, concerning prior but his comments ruling were unnecessary and jury. Assuming, could have misled or confused the arguendo, opinion these comments can be construed as an as to however, guilt accused, appellant’s preserve failure to appeal unnecessary issue makes for us address the merits Griffin, this enumeration. State v. Appellant’s next enumeration into attacks admission Sanders, appellant’s broth- one Freddie testimony by
evidence is an family. Sanders friend of longtime er-in-law and testimony attorney, objected to the admission of concerning certain himself conversations between and Sanders ground protected communications were confidential and attorney-client privilege. See OCGA 24-9-24 38-419). attorney-client no rela- determined that The trial court testimony. tionship disputed existed and admitted agree We failed an prove existence of attorney-client relationship trial between himself and Sanders. At Sanders spoke separate testified that he on three occasions, arrest, once on the of his two more times while night On charges. on murder awaiting trial being jail, held
appellant was
friend,
family
testified,
appellant as
occasion,
spoke
he
he
each
him
represent
advisor;
that he did
told
legal
not a
advice;
he was never
legal
attorney if he needed
an
and to contact
these
by him. Given
nor retained
represent appellant
appointed to
existed, nor could
attorney-client
relationship
facts,
no
we hold that
him on
represented
Sanders
reasonably believed that
have
*6
13) (1887);
(4
Matthews,
1 SE
79 Ga.
See Brown v.
charge.
murder
1983).
(2d
181
ed.
Green,
Law of Evidence
Georgia
challenges
In his final enumeration
you
infer that
“I
charge
given by
judge:
charge
accomplish the
...
to
discretion intends
sound mind and
person of
acts,
if
and
his intentional
consequences of
probable
and
natural
intentionally
without
mind and discretion
person of sound
instrumentality
in the manner
deadly weapon
uses a
or
justification
ordinarily used and
instrumentality
weapon or
in which such
infer the intent to
you may
being,
death of a human
thereby cause the
inferences,
inference,
may be rebutted.”
as all
kill. This
the state of its burden
charge
that this
relieved
Appellant argues
murder,
kill,
of the crime of
an essential element
proving intent
to
(99
2450, 61
Montana,
817) (1980), approved the specifically this court a correct statement given n. 2. The here was charge. charge Id. at 420 constitutional not suffer from the applicable law and did merit. This enumeration is without alleged. defects J., concur, Hill, except C. All the Justices affirmed. Judgment Weltner, J., dissent. who — Decided March Rehearing 28, 1984. denied March Powell, appellant. L. for Richard Bowers, Jr., Attorney, Michael J. Sibley, B. District
Sam General, Dunn, appellee. for Attorney Dennis R. Justice, dissenting. Chief
Hill, confined was obtained after was The defendant’s confession weeks, $90,000 charges, for three theft with bond set at to for four mother” into the death of the ongoing investigation “facilitate the to above, (a)). “questioned He was Division opinion, (majority record)” (at times, (majority according six regularly least that counsel facts). Although knew opinion, statement of charges on the three represent the defendant appointed had been held, on which he was when the being present counsel obtained, confession was When the the theft given. confession I charges dropped. agree therefore am unable with the majority’s light totality conclusion of the circum- stances, voluntary. defendant’s confession therefore dis- sent ask question: weeks,
If the defendant had not confessed to murder after four long how in jail interrogated? would he have been held Justice, dissenting.
Weltner,
I dissent. The Eighth Amendment Constitution the United 1-808) States bail provides: “Excessive shall not be required. ...” I, I,
Art. Sec. Par. XVII Georgia provides: of our Constitution “Excessive bail shall not be . . . .” required — Spence was charges arrested for and held under three theft of motor; his father’s rings; former wife’s theft wedding of an outboard theft of a television set. The evidence indicated that $50, sold television set and the motor for $65. For charges $30,000 these set by taking, bond was total of Ninety Thousand Dollarsl
each offense
It must be only charges lodged against Spence, noted that the only set, $90,000 for which bail of was charges were the offenses of taking, theft which were either misdemeanors or felonies, upon in depending objects whether stolen had values 26-1802, 16-8-2, excess of 16-8-12 OCGA $500. §§ §§ 26-1812). $90,000
The majority suspected states that bail of for the theft of worth, most, items which are at a few hundred dollars was not “so excessive as to an the judge’s (Op., p. constitute abuse of discretion.” 341).
What, I inquire, suspected would be excessive bail for three (of misdemeanors) likely worth, thefts are of at property two most, a few dollars? hundred
Two Hundred Thousand Dollars? Five Hundred Thousand Dollars?
One Million Dollars? case of Jones v. in majority support position cites of its our — Grimes, (1964) only indeed, that is the authority in opinion. cited that division of the
In
case,
Jones
misdemeanor
was convicted of a
public works,
sentenced to
in jail,
twelve months on the
six months
a
$1,000.
$20,000.
fine of
The trial court fixed bail at
excessive, holding:
be
This Court held
in
bail, and
grant
a refusal to
equivalent
bail is the
of
“Excessive
remedy corpus
appropriate
habeas
is an available
such cases
released,
unless
The court
Jones
relief.”
Were not the officer, committing mag- judicial I am satisfied that no from would ever sanction Justice, such a bail Supreme istrate Court requirement. so only the bail was set
The fact of the matter is that the reason suspected he murder. high was that of (The quite is be Spence’s fact of the matter bail would murder.) he charged reasonable were — is with murder charged The fact of the matter that he was only by taking. new majority today approves
The fact of matter bail, upon suspicion system wherein a man now be denied bail provided alone, offense, or misdemeanor there is least some otherwise, might formally charged. he be with which opinion, man The fact of the matter is under the majority — might altogether the existence be denied bail virtue of suspicion undisclosed and unformulated of a latent somewhere within the mind of some official!
That is distressing. portion opinion majority further dissent to that approves testimony lawyer. of his against Spence the admission brother-in-law, arrested,
When called Sanders, jail. following testimony who him in visited Note Sanders:
“Question: attorney, you? You are an weren’t Yes. “Answer: him?
“Question: to advise [Spence] looking And I advised him.” “Answer: attorney-client majority excuses this intrusion into the existed,
relationship by attorney-client relationship “that no stating rep- reasonably nor could Sanders have believed him on charge.” resented the murder (at Why, 19-year-old I inquire, Spence high did the time a school student) jail? call Sanders to the
As family friend? As brother-in-law?
What, I inquire, Spence was it needed discuss Sanders? Relations with his father? Difficulties school? — What, inquire, staring could out from behind (in County “reasonably
bars of the Richmond believe” language majority, supra) lawyer to be the function of his brother-in-law?
40530. THE STATE v. LUCK et al. Justice.
Weltner, Certiorari granted to determine “totality whether the analysis circumstances” Gates,-U. S.-(103 of Illinois v. 2317, 527) (1983), 76 LE2d employed should be in resolving the question of whether information furnished an affidavit submitted in support of a request for a search warrant is “stale.”
The trial court overruled the motion to suppress, concluding implication the clear of the factual recitations of the affidavit was that the purchase informants’ last drug at the premises identified quite recent. reversed, The Court of Appeals holding that such an inference can be “no substitute for an affirmative showing of a State, Luck v. definite period.” time (309 621) App. 168 Ga. SE2d (1983). importance
Of to the issue is the recital in the affidavit informants identified to the officers the residence of defendant Luck as place previous where four purchases of marijuana and LSD were made.
Time is assuredly an element
concept
probable
cause.
State,
Johnston
(181
(1971).
227 Ga.
However,
SE2d
precise
date of an occurrence is
Rather,
not essential.
the inquiry
is as to whether
the factual statements within the affidavit are
sufficient
to create a reasonable belief that the conditions described
in the
yet
affidavit might
prevail at the time of issuance of the search
warrant.
When the affidavit indicates the existence of an scheme ongoing to sell drugs, the passage of time significant becomes less than would be the case with isolated transaction. Tabb v. single,