216 S.E.2d 782 (Ga. 1975), 29758, Coker v. State

Docket Nº:29758, 30006.
Citation:216 S.E.2d 782, 234 Ga. 555
Opinion Judge:INGRAM, Justice.
Party Name:Ehrlich Anthony COKER v. The STATE (two cases).
Attorney:[234 Ga. 575] E. Kontz Bennett, Jr., Public Defender, Dennis J. Strickland, Waycross, for appellant. M. C. Pritchard, Waycross, Dewey Hayes, Dist. Atty., Douglas, Arthur K. Bolton, Atty. Gen., Julius C. Daugherty, Jr., Asst. Atty. Gen., atlanta, for appellee.
Case Date:May 20, 1975
Court:Supreme Court of Georgia
 
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Page 782

216 S.E.2d 782 (Ga. 1975)

234 Ga. 555

Ehrlich Anthony COKER

v.

The STATE (two cases).

Nos. 29758, 30006.

Supreme Court of Georgia.

May 20, 1975

Casemaker Note: Portions of this opinion were specifically rejected by a higher court in 239 Ga. 408.

Casemaker Note: Portions of this opinion were specifically rejected by a higher court in 433 U.S. 584

Rehearing Denied June 17, 1975.

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[234 Ga. 575] E. Kontz Bennett, Jr., Public Defender, Dennis J. Strickland, Waycross, for appellant.

M. C. Pritchard, Waycross, Dewey Hayes, Dist. Atty., Douglas, Arthur K. Bolton, Atty. Gen., Julius C. Daugherty, Jr., Asst. Atty. Gen., atlanta, for appellee.

Syllabus Opinion by the Court

INGRAM, Justice.

The case of the appellant, Ehrlich Anthony Coker, is before this court by direct appeal and for mandatory [234 Ga. 556] review of the death sentence received at trial. The crimes which appellant was charged with committing occurred on September 2, 1974; indictment were returned against him on October 18, 1974; and, a trial on appellant's special plea of insanity was held on November 19, 1974. The appellant was found competent to stand trial and his trial on the general issue got under way on November 20, 1974, resulting in sentences imposed December 4, 1974. A majority of the court find no reversible error and affirm the convictions and sentences. We agree with the trial judge that '(d) efendant was fully represented by capable and effective (counsel) . . . and received a fair trial . . .'

The appellant was convicted of armed robbery and sentenced to life imprisonment; he was convicted of rape and sentenced to death; he was convicted of kidnapping and sentenced to 20 years; he was convicted of motor vehicle theft and sentenced to seven years; and he was convicted of eacape and sentenced to five years.

I

Summary of the Evidence

The prosecution presented evidence which established the following: On the evening

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of September 2, 1974, around 7:30 P.M., several inmates attended a meeting of Alcoholics Anonymous in the chapel of the Ware County Correctional Institution. Around 8:10 P.M., an inmate, brandishing a five or six-pound steel bar, announced, 'Be still . . . this is an escape.' The supervisor of the meeting, Corrections Counselor George Shiver, requested that the inmates who were not involved be allowed to get behind the counselor. Several inmates complied with the counselor's request.

At this point, three inmates, including the appellant, began tearing through a plywood ceiling with the steel bar. A few minutes later, Warden Bruce Brown discovered that the inmates had torn through the roof of the chapel, gone across the building to an area not enclosed by the prison fence, and jumped off another building into the woods adjoining the prison grounds.

Later the same evening, around 11:00 P.M., a man dressed in prison clothes suddenly came through the back door of the home of 16-year old Allen David Carver. Carver was in the kitchen with his wife while his [234 Ga. 557] three-week-old son was in a bedroom asleep. The intruder swung a board toward and close to Allen Carver.

Mr. Carver identified the appellant as the man who broke into his home. Appellant ordered Carver's wife to tie up her husband and she tied his hands and feet. The appellant then tied Carver to the bathroom shower rod with Carver's belt. Appellant confiscated Carver's wallet, clothes, money totaling $20.30 and keys. Subsequently, appellant gagged Carver with his wife's underpants. When appellant was not using the board to intimidate the young couple, he used a four-inch steak knife which he took from Mrs. Carver.

After appellant had bound and gagged Allen Carver in the bathroom, the appellant raped Mrs. Carver. At the time, Mrs. Carver was physically weal, having recently left the hospital following childbirth, and appellant was told this information. After appellant completed the rape he inquired and was told how to crank the Carvers' car.

Appellant then forced Mrs. Carver to accompany him in the car and made her sit directly next to him while effecting an escape from the locale. Before appellant left with Mrs. Carver, he told her husband, whom he left bound and gagged, '. . . I'm taking her with me. If you get loose and call the police, your wife is going to be dead.' Appellant was apprehended in the Carver car by police officers several hours later and Mrs. Carver was released. Appellant was still carrying the knife which he took and used in the commission of the crimes.

II

Enumerations of Error

In his attack on the conviction and sentence in case No. 29758, appellant asserts 79 enumerations of error. These enumerations will be grouped, where appropriate, as applicable legal principles are common to more than one enumeration.

1. In enumerations 1, 3 and 4, appellant alleged improper joinder for trial of the charges of escape and motor vehicle theft with the other charges contained in the indictment.

The recent case of Jarrell v. State, 234 Ga. 410, 216 S.E.2d 258 (decided April 29, 1975) addressed this issue. In a case where '(f)rom the nature of the entire transaction it would be almost impossible to [234 Ga. 558] present to a jury evidence of one of the crimes without also permitting evidence of the other crimes to be introduced since they were all a part of one continuous transaction covering a period of (several) hours,' Henderson v. State, 227 Ga. 68, 76(1), 179 S.E.2d 76; Owens v. State,233 Ga. 905, 213 S.E.2d 860 (decided March 4, 1975), and 'Two or more offenses . . . are based on the same conduct or on a series of acts connected together or constituting parts of a single scheme or plan' (Dingler v. State,233 Ga. 462, 463, 211 S.E.2d 752, 753), the

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joinder of the several crimes is not error. Code Ann. § 26-506.

In the present case, the motor vehicle was taken to perfect the appellant's escape and was used as an instrument of the kidnapping while fleeing from the scene of the rape and robbery. The trial judge did not abuse his discretion in denying the severance 'in the interest of justice.' We find no error here.

2. In enumeration 2, appellant alleges the trial court erred in overruling appellant's written motion to quash the indictment.

In his motion, appellant made a general attack on the constitutionality of the Georgia Death Penalty Statute, Ga.L.1973, pp. 159, 163 (Code Ann. § 27-2534.1). This statute has been repeatedly upheld by a majority of this court. See Coley v. State, 231 Ga. 829, 833, 204 S.E.2d 612; Eberheart v. State, 232 Ga. 247, 206 S.E.2d 12; Hooks v. State, 233 Ga. 149, 210 S.E.2d 668; Mitchell v. State, 234 Ga. 160, 214 S.E.2d 900 (decided April 9, 1975). We affirm those rulings here.

Additionally, appellant attacks the armed robbery statute, Code Ann. § 26-1902, the rape statute, Code Ann. § 26-2001 and the kidnapping statute, Code Ann. § 26-1311 as being unconstitutionally vague, indefinite, discretionary and overbroad so as to violate due process and equal protection clauses of the Georgia and United States Constitutions.

Neither at trial nor before this court has appellant supported these contentions with persuasive argument or authority. We have read the statutes and believe they properly apprise a defendant of the charge he must defend against and are sufficient to protect him from double jeopardy. We affirm the trial court's ruling.

Appellant objected to Count 5 (escape) because it stated and described each and every charge of which the [234 Ga. 559] defendant stood convicted. This objection was recognized by the trial court in that a stipulation subsequently was entered into which stated only that the defendant 'as prior to this time and prior to the date on which he was charged with escape, been convicted of a prior felony, and was at the time of the alleged escape in lawful confinement in the Ware Correctional Institution.'

There is no merit to this enumeration even if we assume the initial objection had merit.

3. In enumeration 3, appellant alleges the trial court erred in refusing to admit into evidence at the special plea of insanity trial the summary of a doctor's report of examination of the appellant.

There is only a bare allegation in appellant's brief that it was harmful for the trial court to refuse to admit into evidence the summary of Dr. Johnson, the appellant's psychiatrist, containing his report of examination and recommendations of the condition of the appellant at the time of the commission of the alleged criminal acts and at the time of trial.

All of the doctor's findings could be elicited on direct examination. The doctor was a witness at the trial. To admit his report in evidence would bolster his testimony by providing a written memorandum of his testimony for the jury not permitted in the case of other witnesses. Additionally, admission of the summary into evidence would have been cumulative and repetitive of the witness's testimony which appears to have been full and exhaustive concerning his findings as a result of the examination he made of appellant. In the absence of any showing of injury this bare claim of error presents nothing for review. Brown v. Atlanta, 66 Ga. 71; Robinson v. State, 229 Ga. 14, 16, 189 S.E.2d 53.

4. In enumerations 6, 7, 8, 9, 18, 21 and 41, appellant alleges error in the admission of specific opinion evidence which he characterizes as 'conclusory statements' or incompetent evidence. Some of the statements occurred during the special plea of insanity trial and others occurred during

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the trial of the general issue. The statements in...

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