253 S.E.2d 710 (Ga. 1979), 34256, Godfrey v. State

Docket Nº:34256.
Citation:253 S.E.2d 710, 243 Ga. 302
Opinion Judge:HALL, Justice.
Party Name:GODFREY v. The STATE.
Attorney:[243 Ga. 311] J. Calloway Holmes, Jr., Gerry E. Holmes, Cedartown, for appellant. John T. Perrin, Dist. Atty., Arthur K. Bolton, Atty. Gen., John W. Dunsmore, Jr., Asst. Atty. Gen., for appellee.
Case Date:February 27, 1979
Court:Supreme Court of Georgia

Page 710

253 S.E.2d 710 (Ga. 1979)

243 Ga. 302




No. 34256.

Supreme Court of Georgia.

February 27, 1979

Casemaker Note: Portions of this opinion were specifically rejected by a higher court in 246 Ga. 359

Casemaker Note: Portions of this opinion were specifically rejected by a later court in 274 S.E.2d 339

Casemaker Note: Portions of this opinion were specifically rejected by a higher court in 446 U.S. 420

Casemaker Note: Portions of this opinion were specifically rejected by a higher court in 246 Ga. 359

Casemaker Note: Portions of this opinion were specifically rejected by a later court in 274 S.E.2d 339

Argued Nov. 20, 1978.

Rehearing Denied March 27, 1979.

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[243 Ga. 311] J. Calloway Holmes, Jr., Gerry E. Holmes, Cedartown, for appellant.

John T. Perrin, Dist. Atty., Arthur K. Bolton, Atty. Gen., John W. Dunsmore, Jr., Asst. Atty. Gen., for appellee.

HALL, Justice.

Appellant, Robert Franklin Godfrey, was tried in Polk County for the murder of his wife and mother-in-law and for aggravated assault on his eleven-year-old daughter. Following his conviction by a jury, he was sentenced to death for each of the murders and to 10 years imprisonment for the aggravated assault. He appeals to this court on enumerated errors and for mandatory review of the death sentences imposed.

  1. Summary of the Evidence

    There was evidence presented in court from which the jury was authorized to find the following:

    On September 5, 1977, appellant's wife left him after he cut some of her clothes off her body with a knife. She moved in with her mother, refused to move back home, and filed for divorce. She also charged him with aggravated assault.

    On the morning of September 20, 1977 Appellant, who was employed as a male nurse, told a female nurse that he was getting a divorce and it would all be over on the twenty-first. (The divorce hearing was set for the twenty-second.) On the same day, Appellant's mother-in-law called him at work and told him that Mrs. Godfrey would telephone him that evening. She did call, but would not agree to halt the divorce proceedings for an [243 Ga. 303] attempted reconciliation. Mrs. Godfrey called back later and again refused to attempt reconciliation.

    Appellant took his single action rifle-shotgun and walked to the mother-in-law's trailer home, in which Mrs. Godfrey, her daughter, and her mother were playing a game around a table. Appellant killed his wife by shooting her in the head, firing through a window. He struck his eleven-year-old daughter on the head with the barrel of the gun as she ran for help. Appellant

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    then shot his mother-in-law, killing her. He then called the Polk County Sheriff's office, identified himself, reported the crimes and gave directions to the trailer. He waited at the scene until a policeman arrived. Appellant told the policeman "they're dead. I killed them," and directed the policeman to the murder weapon which was resting in the branches of an apple tree.

    After being arrested and advised of his rights, Appellant was taken to the police station where he told a police officer that he had committed a "hideous crime" which he had thought about for eight years and would do again.

    The theory of the defense at trial was insanity. The defense psychiatrist described appellant's behavior during the murders as a "dissociative attack," but did not testify that this was a psychosis of any kind. Appellant denied remembering anything from the time of his second telephone conversation with Mrs. Godfrey until he "woke up" in jail the following day. The defense psychiatrist testified that Appellant could not remember the crimes even after receiving an injection of sodium amytal, a "truth serum," although the drug did not affect him as much as most people, perhaps because of his history of heavy drinking.

    The state presented testimony from experts and other witnesses that Appellant was sane and could distinguish right from wrong.

  2. Enumerations of Error

    1. Enumerations of error 1, 2 and 3 incorporate what are generally referred to as the general grounds.

    On appeal this court does not review the weight of the evidence but examines its sufficiency. Peek v. State, 239 Ga. 422, 238 S.E.2d 12 (1977). If there is any evidence to [243 Ga. 304] support it the verdict will not be disturbed on appeal. Drake v. State, 241 Ga. 583, 585, 247 S.E.2d 57 (1978); Campbell v. State, 240 Ga. 352, 354, 240 S.E.2d 828 (1977). There was abundant evidence admitted at trial to support these verdicts.

    Appellant's contention that the evidence as to his sanity raised a reasonable doubt as to his guilt is without merit; there was absolutely no evidence, even from the defense psychiatrist, that Appellant had been at any time psychotic or "insane." See Spivey v. State, 241 Ga. 477, 478, 246 S.E.2d 288 (1978). These enumerations are without merit.

    2. Enumerations 5 and 14 urge that the trial court erred in admitting over objection certain photographs taken at the scene of the crime depicting the victims' wounds and the surrounding area. Portions of the heads of both victims were literally blown away, and when officers arrived blood was dripping from the ceiling of the trailer.

    We have repeatedly held that photographs of this sort are generally admissible. E. g., Stevens v. State, 242 Ga. 34, 38, 247 S.E.2d 838 (1978); Burger v. State, 242 Ga. 28, 31, 247 S.E.2d 834 (1978); White v. State, 242 Ga. 21, 22, 247 S.E.2d 759 (1978); Lamb v. State, 241 Ga. 10, 13, 243 S.E.2d 59 (1978); Moore v. State, 240 Ga. 807, 816, 243 S.E.2d 1 (1978); Davis v. State, 240 Ga. 763, 766-767, 243 S.E.2d 12 (1978).

    Appellant cites in support of his objection the following sentence from Holcomb v. State, 130 Ga.App. 154, 155, 202 S.E.2d 529, 532 (1973): "Where, as here, the cause of death is not in dispute, and the defendant admits to having fired the fatal bullet, a trial judge would often be well advised to sustain an objection to their (photographs') admissibility on the ground that they add nothing of probative value to the record." This sentence is dicta; it does not correctly state the law of Georgia; it has proved confusing to trial counsel; and we have disapproved it. Stevens, supra, 242 Ga. at 39, 247 S.E.2d 838. We agree with the state that a criminal defendant has no right to prevent the jury from seeing the crime scene and the victims' injuries. The trial court did not err in admitting these photographs.

    [243 Ga. 305] 3. In enumerations 6 and 7, Appellant urges that the Grand Jury which indicted

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    him was unconstitutionally composed and that it was error to dismiss his motion challenging its composition.

    These murders occurred on September 20, 1977; counsel was notified of his appointment to represent Appellant on September 21, 1977; and he has never been relieved of those duties notwithstanding some question he raised concerning Appellant's ability to pay him. Appellant was indicted by the grand jury on December 15, 1978. Thus, Appellant was represented by counsel long before indictment, but no objection to the composition of the grand jury was raised prior to indictment.

    The general rule in Georgia is that for a challenge to the array of grand jurors "to be entertained by the trial court, it must be made prior to the return of the indictment or the defendant must show that he had no knowledge, either actual or constructive, of such alleged illegal composition of the grand jury prior to the time the indictment was returned; otherwise, the objection is deemed to be waived. Estes v. State, 232 Ga. 703, 708, 208 S.E.2d 806 (1974)." Sanders v. State, 235 Ga. 425, 426, 219 S.E.2d 768 (1975) cert. den., 425 U.S. 976, 96 S.Ct. 2177, 48 L.Ed.2d 800 (1976).

    There was no showing that appellant did not have reason to believe that an indictment would be returned against him, having had counsel appointed three months before indictment and having admittedly killed two persons. Holsey v. State, 235 Ga. 270, 219 S.E.2d 374 (1975); Wooten v. State, 224 Ga. 106, 160 S.E.2d 403 (1968). There is no contention that the alleged illegality of the grand jury composition was unknown prior to indictment.

    To avoid being held to have waived the objection, Appellant argues that the indictment was rendered by a specially summoned grand jury, and he did not expect it until several weeks later. This is not a ground of exemption from the waiver rule. A defendant has no right to be notified in advance of grand jury proceedings, and has no right to be there. Indeed, Howard v. State, 60 Ga.App. 229, 235-236, 4 S.E. 418 (1939) clearly shows that the state law contemplates that indictments shall be [243 Ga. 306] returned in secret, without the accused's knowing exactly when.

    Appellant was correctly held to have waived his right to object to the composition of the grand jury, and enumerations 6 and 7 are without merit.

    Even were we to consider the merits of this point, it would fail. The primary thrust of appellant's attempted evidence at the motion hearing was that persons between 18 and 21 years of age were not present on the grand jury although Georgia law now authorizes them to serve. This does not show illegality of the grand jury: age is not a recognized class for purposes of grand jury representation. Fouts v. State, 240 Ga. 39, 41, 239 S.E.2d 366 (1977); Barrow v. State, 239 Ga. 162, 236 S.E.2d 257 (1977); State v. Gould, 232 Ga. 844, 209 S.E.2d 312 (1974).

    4. In enumerations 8 and 29, appellant alleges the trial court erred in refusing to charge the law of manslaughter.

    There was no evidence in this case of "sudden, violent, and...

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