The appellant, Ralph Lee Todd, was indicted on October 1,1976, for the murder of Blair Thomas. He was tried by a jury and found guilty; the state had sought the
The evidence showed that two female Clark College students left Church’s Fried Chicken near Morris Brown College about midnight on September 12, 1976. As they walked toward the campus, a man behind them who was wearing a dark blue jacket and dark blue skullcap grabbed their collars and pointed a gun at one student’s head. Their assailant said that they had robbed his cousin and he wanted the money. The two women denied this. One of them said she only had a dollar which she gave the assailant.
He then forced the students to walk to a nearby field. As they reached the field, one of the young women fell to her knees, crying. Both of them then noticed Blair Thomas and another male student coming down the street. One of the young women called out for help; the other shouted that the man had a gun. The assailant then told the young men to get away and fired at them. Both fell to the ground and then got up and ran, but Blair Thomas had sustained a fatal gunshot wound from which he died shortly.
A detective investigating the case obtained Todd’s name as a suspect. On September 18,1976, he showed one of the two young women a photographic lineup consisting of six color pictures; she selected Todd’s picture. She later picked Todd out of a lineup. Neither the other young woman nor the surviving young man could identify Todd.
Following the photographic lineup, Todd was arrested and his apartment was searched pursuant to a warrant. The police confiscated several items, including a high school class ring, three skullcaps, and a pawn ticket for a .38 pistol. A crime lab microanalyst testified at the trial that the bullet which killed Thomas had been fired from this pistol.
Todd himself testified that on the night of September 12,1976, he was at home with his girlfriend with whom he
Todd’s girlfriend corroborated his testimony and, along with other defense witnesses, testified that there was a marked physical similarity between Taylor and Todd.
On rebuttal, a detective testified that the defendant reported to him that he saw a Larry Greenway shoot the victim.
1. Todd’s first enumeration of error is that the trial court erred in overruling his motion for new trial on the general grounds. The evidence supports the verdict of guilty, and the trial court did not err in overruling the motion. Ridley v. State,
2. Todd’s second enumeration of error is that the trial court erred in overruling his motion to have the court reporter read the testimony of Willis LaFrance Taylor from the transcript of the preliminary hearing because Taylor was not present at the trial. The evidence showed that Taylor had been listed as a state witness for the trial. On the first day of trial, December 6,1976, the defendant learned that the state did not intend to call Taylor. He had not been subpoenaed by the state. According to defense counsel, he procured a subpoena for Taylor about noon on December 6 and gave it to the sheriff. The sheriff was unable to locate Taylor. The deputy sheriff assigned to the trial court testified that he was asked to locate and serve a subpoena on Taylor on December 7 through use of a telephone number that turned out to be that of Taylor’s great aunt. He further testified that although to his personal knowledge no subpoena was issued, he did obtain an address which he gave to defense counsel that same day. He also said he told defense counsel that he had been told that Taylor was at work but whomever he talked to did not know where he worked. Defense witnesses
The issue before the trial court was whether defendant had shown that the witness was "inaccessible” under Code Ann. § 38-314. The evidence supports the trial court’s determination that defendant did not show that Taylor could not "with due diligence be found within the state.” LaCount v. State,
3. Todd’s third enumeration of error is that the trial court either failed to exercise or abused its discretion in not declaring a mistrial when the jury sent out a note declaring that is was "hopelessly deadlocked” and announcing how it stood. The record shows that the note was sent to the trial judge at 11:30 a.m. The trial judge asked counsel for authority as to whether he need declare a mistrial, and then decided to research the problem himself. He told the sheriff to take the jury to lunch at noon, and stated that he would announce his decision at 1 p.m. At 12:10, however, he announced that he had received a second note in which the jury announced that it wished to continue its deliberations. The record is clear that the trial judge did not err in allowing deliberation to continue while he researched the matter and in not declaring a mistrial after the second note. The trial judge is not bound to accept the jury’s feeling that it is hopelessly deadlocked.
4. Todd’s fourth enumeration of error is that the trial court erred in charging felony murder in a recharge requested by the jury where the felony murder charge had
5. In his fifth, sixth and seventh enumerations of error, Todd argues that the trial court erred in overruling his motion in limine and allowing testimony regarding similar transactions. The testimony at issue was given by three women.
During the testimony of these witnesses, the trial court instructed the jury that the evidence was being admitted only for the limited purpose of "showing motive, plan, scheme, bent of mind, course of conduct or identity .. .” Two of the women testified as to an assault that occurred about 10:15 p.m. on September 7, 1976, after they left a Burger King near the Morris Brown campus and were on their way back to their dormitory. They identified Todd as the man who, wearing a black skullcap, had come up behind them with a gun and accused them of beating up his brother and taking his money. He forced them to walk down a wooded path behind Church’s, and to disrobe. He also robbed them of the money they had with them, which was less than $9 total, and of their jewelry, including a high school class ring, with the initials of one of the witnesses, that was recovered in the search of Todd’s apartment.
The third woman testified that she and her sister were approached from behind by a man with a gun wearing a blue jacket and blue knit skullcap about 10:30 p.m. on the evening of March 4,1976, as they walked from a basketball game at the Omni toward the Atlanta University Center. The man, whom she identified as
We find that this testimony was admissible because of the marked similarity between the transactions, and because the defendant was identified as the perpetrator by the victims. French v. State,
6. Todd’s eighth enumeration of error is that the trial court erred in admitting into evidence a sawed-off shotgun seized during the search of his apartment over his objection that it was irrelevant, immaterial, and served no purpose. In view of the fact that a photograph clearly showing the shotgun was admitted without objection, the admission of the shotgun itself was not error. Massey v. State,
7. Contrary to Todd’s contention in Enumeration 9, the trial court did not abuse its discretion by sustaining the state’s objection to defendant’s question put to a juror on voir dire: "Do you feel that because the State has brought charges against Ralph Lee Todd that he is, in fact, guilty?” Stack v. State,
8. Todd’s tenth and final enumeration of error is that the trial court erred in overruling his motion for a mistrial based on a newspaper article about the trial that was published on the morning of December 7,1976, the second day of trial, when the jury was not as yet sequestered. The trial judge questioned each juror separately and they all denied any knowledge of the article. Defendant argues now, as he did then, that a mistrial was required because the jurors might not have admitted that they had read or heard about the article. To sustain such an argument would constitute impeachment of the jury system itself, without a scintilla of supporting evidence; there is no merit in this enumeration.
Judgment affirmed.
Notes
This appeal follows an out-of-time motion for new trial which was allowed by the trial court.
Our review of the record shows that this testimony was not deliberately elicited by the prosecutor.