WILLIAMS v. THE STATE
23429
Supreme Court of Georgia
May 26, 1966
REHEARING DENIED MAY 27, 1966.
222 Ga. 208
REHEARING DENIED MAY 27, 1966.
James W. Dorsey, Lynn A. Downey, M. M. Armistead, Nall, Miller, Cadenhead & Dennis, for appellant.
Reid Merritt, Solicitor General, Luther C. Hames, Jr., Arthur K. Bolton, Attorney General, Rubye G. Jackson, Assistant Attorney General, for appellee.
ALMAND, Justice. Under an indictment returned at the April term, 1965, of the Gwinnett Superior Court charging Venson
Motion to change venue. It is asserted that the court erred in not sustaining defendant‘s motion for a change of venue because “of the excitement and the inflamed state of public opinion that has existed since the homicide, which was calculated to poison the minds of the jurors of said county, a large portion of the jurors have formed an opinion as to petitioner‘s guilt, or have become prejudiced or biased against him either from having read or heard accounts of the murder and indictment of this defendant in the newspapers and various publications or over the television or radio, or from having heard statements of others and of relatives and friends of the decedent which are exceedingly damaging to petitioner and prejudicial to a correct termination of the issues involved in the case. The public mind has been so poisoned and prejudiced by exaggerated rumors and by accounts in the newspapers, local press and other news media that petitioner will be unable to get a fair trial by an impartial jury in said county, the sort of trial that he is entitled to under the laws of the land, the State of Georgia, and the Constitution of the United States of America, particularly Section One, Fourteenth Amendment.”
On the hearing of this motion, the defendant‘s evidence consisted entirely of newspaper articles of general circulation in the county which carried reports of the slaying of three Gwinnett County police officers and particularly the accounts in the newspapers that “Gwinnett Murders Solved,” in which the defendant
As a countershowing, the State introduced in evidence the affidavits of 30 citizens of Gwinnett County in which they swore that in their opinion the defendant could receive a fair trial in Gwinnett County.
The trial judge did not err in denying the motion for a change of venue. This ruling follows our ruling in Morgan v. State, 211 Ga. 172 (84 SE2d 365), where it was held that the court did not err in overruling a motion for a change of venue based solely upon grounds that newspaper reports published in the county in which the charges against the defendant were pending were inflammatory and rendered it impossible to obtain a fair trial. This court in a unanimous opinion said: “The mere fact that newspapers had carried items and editorials that the defendant had confessed the crime for which he stood indicted, or had published articles in regard to the defendant which were inflammatory in nature, would not of itself be sufficient to establish the fact that a fair and impartial trial could not be had in Richmond County, without further alleging that the jurors who had been summoned to try the case had read the articles and formed a fixed opinion as to the guilt or innocence of the defendant from reading such articles. As to whether any juror empaneled for the defendant‘s trial had read the articles or formed any opinion therefrom, the right of the defendant in the selection of a fair and impartial jury was protected by the right of challenge to the poll, to have the voir dire questions propounded, and to have peremptory challenges. From the fact that the two local newspapers gave a large amount of publicity to the case, it does not follow that such prejudice existed in the whole county as to make a fair and impartial trial impossible.” Id. at p. 175. See also Blevins v. State, 108 Ga. App. 738 (134 SE2d 496).
Prior to the trial, the defendant filed a motion praying
In denying these motions for discovery or production of evidence, error is alleged in grounds 2, 3, 4, 5, 6, 7, and 8. This court in Blevins v. State, 220 Ga. 720 (2) (141 SE2d 426), held: “There is no statute or rule of procedure of force in this State which requires a solicitor general or other prosecuting officer to make his evidence, documentary or otherwise, available to the accused or his counsel before trial. . .” Id. at p. 723. See also Walker v. State, 215 Ga. 128 (109 SE2d 748). It has never been the practice in this State for a court to engage in the investigation as to whether the evidence before a grand jury was sufficient to warrant an indictment. Buchanan v. State, 215 Ga. 791 (113 SE2d 609). Under these prior rulings, which we follow and approve, these grounds are without merit.
We come now to alleged error number 9 which charges that the court erred in excusing 37 persons called for jury service on the grounds that in response to the question given to them on the voir dire as to whether they were conscientiously opposed to capital punishment, each of them was excused by his answer in the affirmative. Defendant alleges error on the ground that the removal of this class of jurors denied him due process of law as contemplated by Federal and State Constitutions.
Enumerations of error numbers 9-26 inclusive assert that the court erred in placing upon the defendant in the selection of a jury 13 jurors who were not impartial and qualified. In the interrogation of each of these prospective jurors by counsel for the defendant, they were asked if they had any belief or conviction from what they had read or heard in the news media that the defendant had a past criminal record. Most of the jurors answered that they had either heard or read the reports. Some answered that they believed the past criminal record of the defendant to be true. Not a single one in response to a question said he would vote to convict the defendant on his past criminal record. On the whole, the answers of these prospective jurors were that they would believe he had a past criminal record until proved to the contrary. Not a single one of the interrogated jurors stated that the fact that the defendant had a prior criminal record would affect or control his or her verdict as to whether the defendant was guilty of the charge of murder.
It may be noted for the record that at the time the defendant was indicted, he was a convicted felon serving a sentence in the Federal Penitentiary and was in court on the trial of this case in the custody of Federal Marshals. The opinions of the several prospective jurors that they believed from the news media that the defendant had a prior criminal record was supported by this confrontation in open court.
In passing, we do not overlook the contention of counsel for the defendant that he could not get a fair trial because reports of the news media—newspapers, radio and television in the investigation of the crime by reports and pictures with detailed accounts and descriptions as to individuals alleged to be involved, their past history and quoted opinions of officers and prosecuting officials, may be read or heard by prospective jurors in the county where the crime was committed. Yet such does not disqualify a juror from serving if on the voir dire he answers in the negative the questions propounded to him under
Today with fact and rumor being communicated by one to another by newspaper, radio and television and all prospective
Ground 26 asserts that after failing to disqualify the several jurors, the court should have granted his motion for a change of venue. In light of our ruling in Division 4, the denial of this motion was not error.
Ground 27 alleges that the court erred in denying the defendant‘s motion for the discovery of a statement made and signed by M. C. Perry, a witness for the State, and requiring the defendant to continue cross examination without the benefit of such discovery and production. Under our ruling in Division 2 of this opinion, this was not error.
It is urged in ground 28 that the court erred in not granting defendant‘s motion for a mistrial when a witness for the State in response to a question propounded by counsel for the State placed the character of the defendant in issue.
On redirect examination the following occurred: “Q—M. C., you testified you had a legal fee of $1,000 I believe, is that right? A—Yes. Q—But you only asked Venson for $500? A—Yes. Q—What was that for, why did you only ask him for $500? A—Well, I stole the car that I had, that I was convicted on, I stole it for him and another fellow and got caught with him and the other fellow was in the chain-gang.” Counsel made a motion for a mistrial based upon this answer.
When counsel for the defendant cross examined the witness, the following occurred: “Q—Now, I believe you have just been released from prison? A—No. Q—How long have you been out? A—I was in the DeKalb County jail. Q—DeKalb County jail? A—Yes. Q—And you called him as soon as you got out? A—No. Q—How long had you been out? A—I got out on Thursday or Friday, and Mr. Armistead, I promised Mr. Armistead a car that I had at his motel, and he come to pick it up. Q—He represented you in some criminal prosecution?
This witness on direct examination had testified as follows: “Q. . . . You called Venson from there you say? A—Yeah. Q—Did you get him when you called him? A—Yes, one Sunday morning. Q—What did you talk about? A—I called Venson to have him to turn over $500 to Mr. Armistead for Wesley Asinof, another lawyer. Q—Was that for attorney‘s fees? A—Yeah. Q—Did you talk about anything else during the course of that conversation? A—Yeah. Q—Tell us if you would in your own words what did you discuss? A—Venson asked me what I was doing, and I told him nothing, I had just got out of jail on larceny of automobile. Q—You were out of jail at that time? A—Yeah. Q—All right, sir. A—And he asked me was I interested in getting some more cars. Q—What do you mean by getting some more cars? A—Me and him had been in the car business. Q—In other words, you are talking about he wanted you to steal one? A—Yes.”
Counsel for the defendant not having objected when it was first brought before the jury as to defendant‘s past criminal record and subsequently cross examined the witness as to such past record, he was not in a position to ask for a mistrial when counsel for the State pursued the same subject. See Whitley v. State, 188 Ga. 177 (3) (3 SE2d 588); Cady v. State, 198 Ga. 99 (5) (31 SE2d 38).
Ground 29 complains of the court‘s refusal to grant the defendant‘s motion requiring the State to produce a tape recording of a statement by Wade Truett, a State witness, given to
As will be disclosed on our rulings on the general grounds of the motion for a new trial, it was not error for the court, on motion of the defendant, to refuse to direct a verdict of acquittal as complained of in ground 30.
The 31st ground claims that the court erred in permitting, over objection of the defendant, the State to cross examine Lynn A. Downey, his witness, on matters not inquired into by counsel for the defendant on direct examination.
This enumeration of error was not argued orally or by brief by the defendant and is considered as abandoned.
The court charged the jury as follows: “I charge you also that the testimony of one accomplice if satisfactory to the jury is sufficient corroboration of another accomplice in a felony case.” Ground 32 asserts this charge to be erroneous for the reason there was not any testimony by one accomplice corroborating the testimony of another accomplice. The charge given was a correct statement of the law (McCormick v. State, 176 Ga. 21 (166 SE 762)) and authorized by the evidence. Lyles v. State, 130 Ga. 294 (8) (60 SE 578).
Ground 33 asserts that the court erred in refusing to give in charge the following request: “I charge you that in view of the promise of immunity given by the State, you may give no weight whatsoever to the testimony of Wade L. Truett [sic], should you find the promise of immunity has caused the witness Wade L. Truett [sic] to swear falsely against this defendant, Venson Eugene Williams, in hopes that he, Truett [sic], would avoid criminal prosecution.” It was not error to refuse to give this instruction because it was not a correct statement of the law, and if the court had given the requested charge, it would have been an invasion of the province of the jury which has the exclusive right to pass on the credibility of witnesses.
Ground 34 charges that the court erred in failing to charge the jury “that conviction of a crime involving moral turpitude goes to the credibility of a witness and is a method of impeach-
There being no request to charge on the circumstances in which a witness may be impeached, this ground is without substance. Downing v. State, 114 Ga. 30 (3) (39 SE 927); Douberly v. State, 184 Ga. 573 (5) (192 SE 223).
We turn now to the general grounds. The sufficiency of the evidence to sustain the verdict of guilty depends entirely on whether the testimony of Wade L. Truett, an admitted accomplice, was sufficiently corroborated. In other words, our task is to determine whether there was corroborating evidence independent of the testimony of the accomplice which directly connected the accused with the crime. Lanier v. State, 187 Ga. 534 (1 SE2d 405).
Wade L. Truett, a co-indictee, was sworn as a witness for the State. In brief he testified that he and the defendant operated as partners a garage in Hartsville, South Carolina, and that they bought from the White Body Shop in Atlanta a 1963 model two-door hardtop maroon-colored Oldsmobile which had been damaged in a wreck. They removed the car to their shop in Hartsville. Their plan was to steal an identical 1963 model Oldsmobile, repair the purchased car with parts from the stolen car, and sell the other parts for a profit. The defendant telephoned Alex Evans, who lived in Gwinnett County, and told him they needed a 1963 two-door hardtop maroon-colored Oldsmobile in order to sell the Oldsmobile they bought.
Truett and the defendant came to Lawrenceville, Georgia, on the afternoon of April 16th, 1964, in a 1962 white Chevrolet, went to the house of Thomas Stephens, and met there one William Bohanon. They picked up Alex Evans about ten that night. They found, at Evans’ direction, the type of Oldsmobile they were looking for parked near an apartment on Briarcliff Road. Defendants Williams and Evans drove away with the stolen 1963 model Oldsmobile, and Truett followed in the white Chevrolet. They arrived on Arc Road in Gwinnett County with both cars about one or two a. m. on the morning of April 17th. The cars were driven off the road, and while the defendant Williams
On April 24th, they bought some parts for the 1963 Oldsmobile from one E. F. Willing in Aiken, South Carolina. Six months later, they went back to Willing and had him change the date on the receipt from April 24th to April 2nd, 1964. Williams told Willing that the police were trying to involve him in the killing of the three officers, and the “primary reason was it would indicate we didn‘t need the car that was stolen the night the police officers were killed, we already had the parts to fix the car with.”
We now turn to the evidence and circumstances that tend to corroborate the testimony of Truett, the accomplice. (a) On the morning of April 17th, the bodies of the three officers were found in the woods off Arc Road, each one shot one or more times by bullets and handcuffed together. (b) The wires on the radio of the police car were detached. (c) A 1963 two-door hardtop Oldsmobile (identified by the owner) was found burning. (d) M. J. Vandiver of the Georgia Bureau of Investigation on
This court in Callaway v. State, 151 Ga. 342, 348 (106 SE 557), said the following: “The facts relied upon as corroboration may be trifling when viewed by themselves and separately from the entire case; but the jury had the right to consider all the facts and to consider them in their relations one to another, and to determine whether or not, considering the facts and comparing them in their proper setting, under the evidence adduced, they tended to connect the defendant with the commission of the crime and were a sufficient corroboration of the evidence of the accomplice to authorize a conviction of the accused under the law as given them by the court.” Again in Waldrop v. State, 221 Ga. 319, 320 (144 SE2d 372), this court said: “‘Slight evidence from an extraneous source identifying the accused as a
The theory of the State‘s case was that the defendant, Truett and Evans entered into a conspiracy to steal an automobile, a felony, and in the process of carrying out this unlawful act, one or more of them, upon their being caught by the three police officers, shot and killed the officers. The court fully charged the jury the law relating to conspiracy.
We are of the opinion that the facts relied upon by the State as corroborating the testimony of the accomplice Truett tended to connect the defendant with the crime of murder and were sufficient to support his conviction.
It was not error to overrule the motion for a new trial.
Judgment affirmed. All the Justices concur, except Quillian, J., who dissents.
QUILLIAN, Justice, dissenting. I am constrained to dissent from the holding made in Divisions 11 and 4 of the majority opinion and the judgment of affirmance. Division 11 contains the complaint that the instruction to the jury, “I charge you also that the testimony of one accomplice if satisfactory to the jury is sufficient corroboration of another accomplice in a felony case,” was erroneous for the reason there was not any testimony by one accomplice corroborating the testimony of another accomplice.
Here several principles of evidence are applicable. One is: “An instruction unauthorized by the evidence is improper, and, if it is not apparent that the jury could not have been misled thereby, is cause for new trial.” Citizens & Southern Nat. Bank v. Kontz, 185 Ga. 131 (6) (194 SE 536); Reeves v. State, 196 Ga. 604, 614 (27 SE2d 375), where it was held that “instructions, even though abstractly correct, should not be given unless authorized by the evidence, or in criminal cases by the evidence or by the statement of the defendant.”
In Price v. State, 208 Ga. 695, 696 (3a) (69 SE2d 253), this court held: “The rule is well established that, to sustain a conviction in a felony case upon the testimony of an accomplice, there must be corroborating facts or circumstances, which, in themselves and independently of the testimony of the accomplice, directly connect the defendant with the crime, or lead to the inference that he is guilty, and more than sufficient to merely cast on the defendant a grave suspicion of guilt.” “In every case the corroborating circumstances must connect the defendant with the crime independently of the testimony of the accomplice, and this
If an accomplice‘s testimony does not corroborate the testimony of another accomplice as to more than mere time, place and circumstances of the transaction, but as here falls short of corroborating any fact that connects the defendant with the commission of the crime, in the contemplation of the law, it is no corroboration of the testimony of another accomplice. The testimony of Evans that he knew the officers is not corroborative of any testimony of Truett that he was at the scene of the homicide or that connected either Evans or the defendant with the murder. It was an independent circumstance that had no corroborating value in connecting the defendant with the offense.
In this connection, the holding of Allen v. State, 215 Ga. 455, 458 (111 SE2d 70), is factually similar. In the Allen case the facts, stated as appearing from the record, to corroborate the testimony of the accomplice Rothschild as to the defendant Allen‘s connection with the crime were: “The testimony of Speer McElroy, a Winder policeman, that he saw the defendant Allen in front of Tomlin‘s Drive-In, in Winder, Georgia (which is several miles distant from the scene of the killing near Jefferson), on the night in question, when he was called there to push off ‘a faded out, old model automobile‘; that he knew the defendant Allen, but did not know the man Allen pushed off; that the defendant pushed the car off, it cranked, caught up, and went on down the highway toward Atlanta; that he called the police station by radio and had the boy on the desk to call Allen to come and push the car off, and his testimony as to this call by the policeman was substantiated by the police department radio operator; the testimony of George Crane, the principal stockholder, and Joseph Howard Sims, an employee, of Sportsman‘s Inc., of Athens, Georgia, that they handled and cleaned guns, and they knew Allen; that sometime during the year 1957 Allen brought them a very rusty 38 Smith & Wesson nickel or chrome plated pistol to be cleaned; the testimony of Deputy Sheriff J. R. Austin that, on the night of June 19, 1956, he had
It will be noted that the undisputed proof of the State corroborated the accomplice Rothschild in saying that he knew Allen and “Allen pushed his car off,” on the afternoon of the homicide. The testimony of Speer McElroy clearly corroborated the accomplice Rothschild‘s testimony that he knew the defendant Allen. Yet, this court held the corroborating of Rothschild‘s testimony that he knew and associated with Allen was not a fact connecting Allen with the murder of Charles Drake, even though there were other circumstances related by another witness, Patterson.
Now, in the present case the charge was not simply that one accomplice could corroborate the testimony of another, but “that the testimony of one accomplice if satisfactory to the jury is sufficient corroboration of another accomplice in a felony case.” Thus, it is apparent to me that where there was in the record no testimony of Evans that the jury could accept as legally sufficient to corroborate the testimony of the accomplice Truett, the charge was not warranted by the evidence.
I can not agree with the pronouncement of the majority in Division 4 of the opinion. In view of the testimony of the juror J. H. Clack given in response to questions respecting his qualification as juror, it is my opinion that he was disqualified. He testified that he believed the newspaper report that the return of the indictment had solved the crime, for the commission of which the defendant was on trial, and that the defendant would have to produce evidence of his innocence in order for that to be overcome. The burden of proof was upon the State.
I am aware the juror further swore that his mind was subject and receptive to the evidence in the case; that he was not predisposed against the defendant or had not fixed in his mind that the defendant was guilty; that he could listen to the evidence fairly and properly construe the law as given in charge and could “do what is right” between the State and the defendant; that he had no reservations in his mind that he would not be a fair and impartial juror. This does not alter my opinion. In the first place, the burden was still placed, by the juror, upon the defendant to prove his innocence. Further, it is extremely difficult for a juror to decide whether a former opinion has been eradicated by evidence. It is an extremely delicate sense of psychological balance that enables one to determine whether he is influenced by pre-trial impressions amounting to an opinion so strong that it must be overcome by evidence, or whether the evidence adduced upon the trial provided the conclusion in his mind of the defendant‘s guilt. Such a juror, in my opinion, is not impartial.
In the case of United States v. Wood, 299 U.S. 123, 145 (57 SC 177, 81 LE 78), there is sound legal reasoning by Chief Justice Hughes: “Impartiality is not a technical conception. It is a state of mind. For the ascertainment of this mental attitude of appropriate indifference, the Constitution lays down no particular tests and procedure is not chained to any ancient and artificial formula.” In Irvin v. Dowd, 366 U.S. 717, 727 (81 SC 1639, 6 LE2d 751), where some of the jurors had admitted preconceived opinions of the defendant‘s guilt, but on voir dire claimed they could be impartial, the observation is made: “With such an opinion permeating their minds, it would be difficult to say that each could exclude this preconception of guilt from his deliberations.” In United States v. Denno, 313 F.2d 364, 372 (2d Cir. 1963), is the pronouncement: “It is true that there was drawn from jurors, even those who stated that it would take evidence to alter their opinions of guilt, the statement that they felt they could act impartially. This, however, placed on those individuals a burden we think impossible to be borne, in the light of the nature
For the foregoing reasons, I dissent.
H. E. QUILLIAN
JUSTICE, SUPREME COURT OF GEORGIA