Cunningham v. State

• Decision Date: 13 November 1981
• Docket Number: No. 37736,37736
• Citation: 248 Ga. 558,284 S.E.2d 390
• Parties: CUNNINGHAM v. The STATE.
• Court: Georgia Supreme Court

Page 390

284 S.E.2d 390

248 Ga. 558

CUNNINGHAM v. The STATE.

No. 37736.

Supreme Court of Georgia.

Nov. 13, 1981.

Rehearing Denied Dec. 1, 1981.

[248 Ga. 565] Samuel A. Fowler, Jr., Albert H. Dallas, M. McNeil Holloway III, Thomson, for James cunningham, Jr.

Kenneth Goolsby, Dist. Atty., Dennis Sanders, Asst. Dist. Atty., Thomson, Arthur K. Bolton, Atty. Gen., for the State.

JORDAN, Chief Justice.

James Cunningham, Jr., was indicted for burglary, armed robbery and murder. The trial court dismissed the burglary count, and he was convicted of armed robbery and murder. The jury sentenced him to death on both counts. The case is here on direct appeal and for mandatory review of the death sentences.

1. Defendant contends the trial court erred in overruling his motion to quash the indictment and his challenge to the array of traverse jurors in that both the grand and traverse jury lists were unlawfully composed.

Counsel for defendant was appointed on January 8, 1979. Defendant was not indicted until January 22, 1979. The motion to quash the indictment was not filed until October 22, 1979, one day prior to trial. No reason appearing as to why the challenge to the grand jury could not have been filed prior to indictment, there is no merit in this enumeration. The trial court did not err by failing to quash the indictments. Sanders v. State, 235 Ga. 425, 219 S.E.2d 768 (1975), cert. den. 425 U.S. 976, 96 S.Ct. 2177, 48 L.Ed.2d 800 (1976); Godfrey v. State, 243 Ga. 302, 253 S.E.2d 710 (1979), rev. on other Furthermore, the jury commissioners of Lincoln County are presently under a continuing order of the United States District Court for the Southern District of Georgia to revise the grand and traverse jury lists by using the registered voters list in the general election and by randomly selecting every fifth name for the traverse jury and every third name on the traverse list for the grand jury. Furthermore, prior to any change in such procedures, notice must be given to the District Court.

[248 Ga. 559] grounds, 446 U.S. 420, 100 S.Ct. 1759, 64 L.Ed.2d 398 (1980); Sullivan v. State, 246 Ga. 426, 271 S.E.2d 823 (1980).

The jury commissioner called to testify stated that the commissioners were in strict compliance with the district court order in compiling the traverse jury list. There was no evidence that the source was tainted in that there was no showing that an opportunity for discrimination existed from the source of the jury list. Given the neutral selection methods used by the jury commissioners the statistical disparity between the percentage of blacks residing in the county and the percentage on the jury lists affords no ground of relief. The trial court did not err in overruling defendant's challenge to the array. Davis v. State, 241 Ga. 376(1), 247 S.E.2d 45 (1978).

2. Defendant contends in enumerations of error 2, 3 and 4 that the trial court erred in overruling his motion for new trial on the general grounds.

In addition to defendant's confession, the evidence presented authorized the jury to find that the defendant, after unsuccessful attempts to borrow money, went to the victim's home with the express intent of robbing him, that he concealed the murder weapon on his person and when he had the victim at a disadvantage began to hit him in the head until he fell to the floor. He then robbed the victim, and left him to die. The murder weapon was recovered and introduced in evidence, as was the victim's wallet and defendant's blood stained clothes. Testimony placing the defendant in the general vicinity at the approximate time of the murder and testimony about bloody footprints at the scene identified as being made by defendant's shoes was introduced, as was testimony about his flight.

The evidence presented is sufficient to authorize the verdict under the current legal standard, and there is no merit in these enumerations of error. Jackson v. Virginia, 443 U.S. 307, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979), and Tucker v. State, 244 Ga. 721(1), 261 S.E.2d 635 (1979).

3. Defendant contends in enumeration of error 6 that his conviction and sentence to death for armed robbery are error. He argues that the conviction must be set aside because the armed robbery is the felony supporting his felony murder conviction. Defendant was indicted for malice murder and the jury was instructed only as to malice murder. The jury returned a verdict of guilty of malice murder. Barrow v. State, 235 Ga. 635(2), 221 S.E.2d 416 (1975); Dobbs v. State, 236 Ga. 427, 433, 224 S.E.2d 3 (1976); and Fleming v. State, 236 Ga. 434, 435, 224 S.E.2d 15 (1976). His conviction for armed robbery must be affirmed.

4. Defendant contends in enumerations of error 8 and 9 that the trial court erred in denying his motion for funds for a private investigator and for an examination by a private psychiatrist.

The grant or denial of a motion for independent psychiatric evaluation lies within the discretion of the trial court and will not be overturned unless an abuse of discretion is shown. Messer v. State, 247 Ga. 316(1), 276 S.E.2d 15 (1981). Likewise, the grant or denial of a motion for funds to employ an investigator lies within the sound discretion of the trial judge and will not be overturned unless an abuse of discretion is shown. See Whitaker v. State, 246 Ga. 163, 269 S.E.2d 436 (1980). The case against the defendant was factually simple and did not depend on a large volume of evidence of a technical nature. We find no abuse of discretion in the trial court's denial of the motion for funds to hire an investigator.

The defendant was examined twice at Central State Hospital and found to be mentally competent both times. No plea of insanity was filed, and under the circumstances of this case we find no abuse of discretion in overruling the motion for a private psychiatric examination.

5. Defendant contends in enumeration of error 10 that the trial court erred in overruling his motion to suppress the several statements he gave to police officers. He gave four statements to officers, and each time prior to making the statement he was advised of his rights and signed a written waiver. The first and second statements are identical, one given to the North Carolina authorities at the time of his arrest, and one to the Georgia authorities. On the return trip to Georgia, the defendant spontaneously amended his statement, telling where he had disposed of the murder weapon and the clothes he was wearing on the night of the murder. Later, the defendant requested officers to come see him. He then gave a fourth statement implicating his wife in that she planned the robbery and took the money from the bedroom while he beat the victim with a wrench.

"In the course of the trial, the court conducted a Jackson-Denno hearing in which the court concluded that his confession was freely and voluntarily given. There being ample evidence presented in the trial court to support its determination, it will not be disturbed on appeal." Gunn v. State, 244 Ga. 51, 257 S.E.2d 538 (1979).

On January 2, 1979, the defendant gave North Carolina authorities a complete confession after he was advised of his rights and he signed a written waiver. Sometime thereafter an attorney was appointed for extradition purposes. Georgia authorities arrived in North Carolina, questioned him on January 3, 1979, and obtained an identical statement after a written waiver. The first statement was introduced in evidence against him as was the second. After he was returned to Georgia, local counsel was appointed. Thereafter, on the 12th of January, he got in touch with detectives, requested they come to see him, and gave a full statement which was also introduced in evidence against him. He now complains that the second and fourth statements were made without benefit of counsel and should be excluded. We do not agree. The last statement was made upon his own request, and therefore was properly admitted. Edwards v. Arizona, 451 U.S. 477, 101 S.Ct. 1880, 68 L.Ed.2d 378 (1981). The second statement taken by Georgia authorities in North Carolina was identical to the first statement. Because the first statement was properly introduced against the defendant, no material prejudice has been demonstrated. There is no merit in this enumeration of error.

6. Defendant argues in enumeration of error 11 that the trial court erred in denying his Brady motion seeking copies of his statements given to the investigating officers. He argues that the statements contained exculpatory matters as to the murder charge.

This same argument was made in Baker v. State, 245 Ga. 657(3), 266 S.E.2d 477 (1980), and this court held: "Brady applies to 'the discovery, after trial, of information which had been known to the prosecution but unknown to the defense.' United States v. Agurs, 427 U.S. 97, 103, 96 S.Ct. 2392, 2397, 49 L.Ed.2d 342 (1976)." Here defendant's own statements were the subject of the Brady motion. Thus, this was not information unknown to the defense and subject to discovery under Brady. Furthermore, the evidence his motion sought was introduced to the jury in entirety, and a favorable inference, if any, could be drawn by the jury. McCleskey v. State, 245 Ga. 108, 263 S.E.2d 146 (1980). There is no merit in this enumeration of error.

7. In the twelfth enumeration of error the defendant contends the trial court erred in allowing the two G.B.I. agents assigned to investigate the case to remain in the courtroom to assist in the prosecution over his objection. His argument is that the district attorney did not present sufficient facts to the court for it to exercise its discretion in allowing the two agents to remain and not to require the prosecution In his request to the court to allow the witnesses to remain in the courtroom, the district attorney stated that he would put the witnesses up "as quickly as I can."

to call them as its first witnesses. Pretermitting waiver, we find no merit in de...