Welch v. StateWelch v. State
- Reporters:
- , ,
- Before:
- Smith
This is а criminal case wherein appellants challenge the constitutionality of the public drunkenness statute,
In February 1982, apрellants, who are husband and wife, were traveling aboard a railroad train through Georgia from New Orleans to New York. The record shows that from the time they came aboard at 8:30 a.m. in New Orleans the appellants and members of their party had been buying drinks in the loungе car. During the day they became increasingly loud and profane, and were belligerently uncooperative when asked by the conductor to show their tickets as *198 they neared Atlanta in the evening. Train personnel requested assistance from police and the appellants were arrested in Gainesville at about 9:00 p.m. Both resisted arrest and police had to forcibly subdue the pair to get them off the train. Appellants were charged with public drunkenness and obstruction of a police officer in the lawful discharge of his duties.
1. Appellants first enumerate the general grounds. We find that the evidence was sufficient to support the jury’s verdict under the standards of Jackson v. Virginia, 443 U.S. 307 (99 SC 2781, 61 LE2d 560) (1979).
2. Appellants next assert that it was error for the trial court to charge the jury by merely reading
3. Appellants enumerate as error the trial court’s failure to charge as requested regarding warrantless arrest. This enumeration has no merit. The court need not give the exact language of a request to charge when the same principles are otherwise fairly given to the jury. Jackson v. State, 249 Ga. 751 (295 SE2d 53) (1982); Logue v. State, 155 Ga. App. 476 (271 SE2d 42) (1980). The court properly charged the jury as to the principles of law concerning warrantless arrest.
4. Appellants challenge
We have construed
The void-for-vagueness doctrine as interpreted by the U. S. Supreme Court “requires that a penal statute define the criminal offense with sufficient definiteness that ordinary people can understand what conduct is prohibited and in a manner that does not encourage arbitrary and discriminatory enforcement.” Kolender v. Lawson, 51 USLW 4532, 4533 (May 2,1983).
5. In their fifth enumeration appellants cite as error the trial court’s refusal to allow voir dire to be reopened for a certain juror who stated his occupation as “retired” during questiоning of the jurors. He was then asked whether prior to his retirement he belonged to any law enforcement organizations. He answered negatively, but nonetheless was later peremptorily struck. The next day the district attorney informed defense counsel that the prospective juror had been a bailiff of the Superior Court of Hall County. There is no assertion that the district attorney had this knowledge during voir dire.
Appellants requested further voir dire of this juror and sought to establish grounds to challenge for cause. The court denied this request. Appellants assert that, where their peremptory strikes were later exhausted, they were harmed by being forced to use a peremptory strike for a juror who might have been excused for cause.
In Bradham v. State, 243 Ga. 638 (256 SE2d 331) (1979), cited by appellants in support of their cоntention, the challenged juror stated that he had three sons who were law enforcement officers in another county and he would be inclined to give more credence to a police officer’s testimony than a non-police witness. The court rеfused to dismiss him for cause and the juror was struck peremptorily by the defendant who exhausted his peremptory strikes. We conclude that Bradham is inapposite for two reasons. Defense counsel in this case had ample opportunity to question the juror, discovеr his status, and *200 challenge him for cause. This was not done. The trial court thus did not refuse to excuse the juror for cause, as was the case in Bradham. Second, no authority is cited, and we know of none, for the proposition that a bailiff is presumptively unable to considеr in an impartial and unbiased manner the facts and law of a case presented to him. Unlike the juror in Bradham, the prospective juror here agreed that a law enforcement officer might not always be a truthful or believable witness.
“In Georgia, control of the vоir dire examination is vested in the discretion of the trial judge and will not be interfered with unless it is clearly shown that such discretion was abused.” Ruffin v. State, 243 Ga. 95, 97 (252 SE2d 472) (1979). In the present case there was no abuse of the trial court’s discretion in conducting voir dire and we find no merit in this enumeration.
6. In enumerations six and seven, appellants cite as error the trial court’s denial of their motions for mistrial and new trial because of improper remarks and comments by the prosecution during opening argument and summation. This included a characterization of the appellants as “civil rights leaders,” uncivilized, and people “used to civil disobedience.” Appellants argue that these statements were inflammatory, improper, and highly prejudicial. The trial court appropriately instructed the jury that opening cоmments are not evidence and are not to be considered as such. The court also admonished and rebuked the state’s attorney for these remarks.
7. In enumerations eight and nine appellants arguе that various rulings and comments of the trial court, as well as the presence of armed law officers in the courtroom, had the cumulative effect of denying them a fair trial. The record shows that attorneys for both the appellants and the state were zealous in the representation of their clients and frequently objected to evidence offered by the other and disagreed with the court’s various rulings during the trial. Nevertheless, the trial was free from irrelevant or prejudicial remarks calculated to stir up racial prejudices and animosity. The cases cited by the appellants involving racially inflammatory comments from the bench or counsel are thus inapposite here. Nor did the court intervene unnecessarily in the trial to address appellant’s counsеl in such a way as to intimidate him. “The trial judge has broad discretion *201 in handling these matters and we are loath to interfere with that discretion unless it is manifestly abused by clearly demonstrated prejudice or unfairness.” Dyke v. State, 232 Ga. 817, 825 (209 SE2d 166) (1974). In this case we find no clearly demonstrated prejudice оr unfairness and thus no reason to interfere with the rulings of the court.
As to the question of guards in the courtroom, it is well established that the trial court may in its discretion take the measures it deems reasonably necessary to insure that the courtroom is secure and conducive to the conduct of a fair and safe trial. See Green v. State, 246 Ga. 598 (6) (272 SE2d 475) (1982). There were public demonstrations and rallies by supporters of the appellants during the course of this trial. At least one nationally known person participated in a rally on the appellants’ behalf. In these circumstances it was not an abuse of discretion to ensure a safe and orderly proceeding by having present at the trial law enforcement officers.
Appellants contend that it was improper to exempt from the sequestration order two prospective prosecution witnesses, the county sheriff and the police officer who investigated the case.
Appellants also argue, without a formal enumeration, that it was error to deny a change of venue, in light of highly inflammatory and prejudicial media coverage of the upcoming trial. As we explained in Kesler v. State, 249 Ga. 462 (7) (291 SE2d 497) (1982), widespread and advеrse publicity per se does not necessarily warrant a change of venue. The record contains no evidence that publicity prior to and contemporaneous with the trial had a prejudicial impact upon the appellants’ casе. The record contains only one newspaper article and one editorial, neither of which can conceivably be called inflammatory. The record also shows that, applying the voir dire test of Krist v. Caldwell, 230 Ga. 536 (2) (198 SE2d 161) (1973), the jurors summoned to try this case had not formed fixеd opinions as to the guilt or innocence of the accused from reading or hearing of the case. It was not error to deny the motion for change of venue.
8. In enumeration ten appellants contend that it was error to deny them access to thе complete pre-trial statements of certain
*202
prosecution witnesses. The trial court examined the statements in response to appellants’ motion to produce and denied it, ruling that they contained no exculpatory material. Appellants contend that they are entitled to review the statements, regardless of the court’s conclusion as to the materiality of their contents, upon service of a notice to produce pursuant to
As we said in
Stevens v. State,
242 Ga. 34 (1) (247 SE2d 838) (1978), witness statements have never been subject to а notice to produce, although exculpatory witness statements are subject to disclosure where requested under Brady v. Maryland, 373 U. S. 83 (83 SC 1194, 10 LE2d 215) (1963). In compliance with Brady and its progeny, the trial court here made an in-camera inspection of the requested statements and found no exculpatory information. In such a case, appellants then have the burden of showing both the materiality and the favorable nature of the evidence sought. Instead, appellants here merely speculate that the statements possibly contain exculpatory information, and thus fail to carry this burden. Although the proponents of the statements were subject to cross-examination during the trial, appellants cite no inconsistencies between the proffered testimony and the statements requested, nor do they assert prejudice from the absence of these statements prior to trial. Appellants have failed to show cause and we need not call for the sealed statements to examine them. See
Wilson v. State,
246 Ga. 62 (1) (268 SE2d 895) (1980). We find no error under either Brady or
9. In enumeration eleven аppellants contend that the cumulative prejudicial impact of the errors specified in enumerations three, four, six, seven, eight and nine are such as to require the vacating of the judgment of conviction and the granting of a new trial. We have already considered these enumerations and found them to be without merit. They require no further consideration.
Judgment affirmed.
All the Justices concur.