State v. Pike
| Decision Date | 06 September 1984 |
| Docket Number | No. 40752,40752 |
| Citation | 320 S.E.2d 355,253 Ga. 304 |
| Parties | The STATE v. PIKE. |
| Court | Georgia Supreme Court |
Robert E. Keller, Dist. Atty., David C. Marshall, Asst. Dist. Atty., Jonesboro, for the State.
Jay W. Bouldin, Jonesboro, for Walter Randolph Pike.
We granted the state's application for certiorari to determine whether and under what circumstances a trial court may supplement the record to reveal the appearance of the clothing worn by the defendant during trial. Pike v. State, 169 Ga.App. 358, 312 S.E.2d 808 (1983).
At the commencement of trial, defense counsel objected to the defendant's being dressed in "prison garb." The prosecutor responded that the bailiff had attempted to find "non-prison issue clothing" without success, that the defendant's clothes had been seized as evidence in this (rape) case, that the state was under no duty to obtain civilian clothing for indigents, 1 and that was why the defendant was wearing "prison issue clothing." The defendant's objection was overruled and the trial commenced.
The defendant was charged with two counts of burglary and one count each of rape, aggravated sodomy and aggravated assault. The evidence showed that the defendant broke into the victim's apartment through a window in the afternoon using a screw driver and was discovered by the victim going through the drawers in one bedroom. After the defendant forced the victim to accompany him around the apartment at gunpoint, he bound her with pantyhose and a belt, gagged her, removed her underpants by burning them with a lighter, and committed sodomy and rape. He then obtained a knife, cut the victim loose, removed his clothes and ordered the victim onto a bed. While investigating a burglary at another apartment, a police officer observed the broken window at the victim's apartment and entered it, observed the nude victim who warned the officer that the defendant had a gun, and arrested the defendant who was also nude. After he wore his pants to jail, the defendant's clothes were sent to the crime lab for examination. 2
In an oral statement, the defendant admitted breaking into the apartment, admitted having consensual sex with the victim, and explained his tieing her up by saying he thought she was a masochist. In a written statement, he said he went to a friend's apartment but she was not home, so he got in the only way he knew how; she called the police and claimed he broke in and raped her as revenge for some past difference. 3
The victim testified that she had never seen the defendant before. She admitted that she did not volunteer to the investigating officers that she had been raped and sodomized but answered that she had when asked. Medical examination failed to confirm that a rape had occurred, but the gun, knife, screw driver, and cigarette lighter used by the defendant were introduced into evidence along with the cut-up pantyhose. The jury found the defendant guilty of one burglary, rape, aggravated sodomy and aggravated assault.
The defendant appealed to the Court of Appeals, urging two enumerations of error, that the trial court erred in forcing him to trial wearing "prison garb," and erred in allowing his written statement into evidence (see footnote 3). The state responded that the record failed to show what the defendant was wearing at trial other than defense counsel's reference to "prison garb" and hence the defendant had failed in his burden of showing error in the record. The state also cited Hayslip v. State, 154 Ga.App. 835, 270 S.E.2d 61 (1980), and Whittington v. State, 155 Ga.App. 667, 272 S.E.2d 532 (1980). In Hayslip, authored by now Justice Smith, the court found no error when the defendant was tried wearing blue denim coveralls issued by the sheriff but bearing no numbers or other marks associated with prison uniforms. In Whittington, the court found no error when the defendant was tried wearing blue jeans and a brown or tan shirt, neither of which exhibited any marking commonly associated with prison uniforms.
In its decision rendered November 28, 1983, the Court of Appeals reversed defendant's conviction, finding that the trial court erred in requiring the defendant to be tried in "prison clothing" (which he was). The state then filed a motion in the trial court to supplement the record pursuant to OCGA § 5-6-41(f), and thereafter filed a motion for rehearing in the Court of Appeals, urging that the defendant's clothing was not distinctive as "prison garb" and attaching a copy of its trial court motion to supplement the record along with photographs of clothing allegedly similar to that worn by the defendant at trial.
On motion for rehearing, the case went to the whole court. A majority denied the motion, adhering to its holding that requiring a defendant to be tried in prison clothing was error, finding that the burden was on the state to show that the prison clothing worn by the defendant was not distinctive, and finding that the state could not supplement the record so as to show the clothing worn by the defendant at trial on the ground that such evidence was new and additional evidence not presented at trial and as such not authorized by OCGA § 5-6-41(f). We granted the petition for certiorari.
OCGA § 5-6-48 provides the procedure for an appellate court to require the trial court to supplement the record. It provides in pertinent part as follows: "At any stage of the proceedings, either before or after argument, the court shall by order, either with or without motion ... require the trial court to make corrections in the record or transcript or certify what transpired below which does not appear from the record on appeal ... or take any other action to perfect the appeal and record so that the appellate court can and will pass upon the appeal and not dismiss it." OCGA § 5-6-48(d). Pursuant to this authority, this court ordered the trial court to supplement the record so as to show what the defendant wore at trial. The trial court held a hearing and found that during the trial the defendant wore a sky blue denim shirt with a white T-shirt...
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Hicks v. State
...right to a suitable courtroom appearance, the defendant has failed to show a violation of that right. Compare State v. Pike, 253 Ga. 304, 320 S.E.2d 355 (1984). 6. In view of the minimal pre-trial publicity and the small number of prospective jurors excused for cause, the trial court did no......
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...fatal deficiencies after the fact. [Cit.]" Harp v. State, 204 Ga.App. 527-528(1), 420 S.E.2d 6 (1992). See also State v. Pike, 253 Ga. 304, 307, 320 S.E.2d 355 (1984). The trial court did not err in refusing to consider this Carr contends that a second unrecorded conference would show that ......
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Caine v. State, S95A1912
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