Abrams v. State
| Decision Date | 09 March 1967 |
| Docket Number | No. 23923,23923 |
| Citation | 223 Ga. 216,154 S.E.2d 443 |
| Parties | Richard ABRAMS v. The STATE. |
| Court | Georgia Supreme Court |
Syllabus by the Court
1. The admission in evidence of incriminating statements made by the defendant was not error.
2. The admission in evidence of certain articles taken from the defendant's automobile and pictures of blood stains on the car, which automobile was an instrumentality used in the commission of the crime, and which was seized at the time of the defendant's arrest, a few hours after the commission of the crime was not error.
3. The complaint on the admission of certain evidence is without merit, as the court sustained the objection and excluded the evidence.
4. The admission in evidence of articles of clothing taken from the defendant's house at the time of his arrest was proper, as a legal search and seizure may be made incident to an arrest.
5. It was not error for the court to fail to advise the defendant that he had the right to counsel and to present evidence in his behalf, where he had competent counsel and the defendant voluntarily made an unsworn statement.
6. Enumeration of error not argued will be considered abandoned.
7. The court's charge that the jury could recommend mercy with or without reason and as a matter of grace was proper and was not subject to the complaint made against it.
8. The court's charge on admissions was favorable to the defendant rather than harmful.
9. Where there is no objection to the admission of testimony in evidence, no motion to rule out incriminating statements, and no request for the court to determine the voluntariness of the statements, or to charge the jury thereon, there is no merit in the complaints of the appellant thereon.
10. In the absence of a timely challenge to the grand jury or the traverse jury, the complaint of exclusion of Negroes therefrom is not reviewable.
11. A sentence of death for rape is not cruel and unusual punishment such as is inhibited by the Constitution of the United States.
12. The complaint on the submission of the issues of the appellant's insanity, voluntariness of alleged incriminating admissions, and presentment of the issue of insanity to the jury which tried the appellant's guilt or innocence is without merit.
13. Exclusion under Code § 59-806(4) of persons conscientiously opposed to capital punishment is not a denial of appellant's rights under the 5th, 8th and 14th Amendments to the United States Constitution.
Thomas A. Hutcheson, Irwin L. Evans, Casey Thigpen, Sandersville, Howard Moore, Jr., Atlanta, for appellant.
Walter C. McMillan Jr., Sol. Gen., D. E. McMaster, Sandersville, Dan L. Lanier, Sol. Gen., Metter, Arthur K. Bolton, Atty. Gen., G. Ernest Tidwell, Executive Asst. Atty. Gen., Hardway Young, III, Atlanta, for appellee.
Appellant was indicted, tried, and convicted of rape without recommendation and sentenced to death. From that verdict and judgment he appealed and filed enumeration of errors alleging 22 errors. There is no contention that the verdict is not supported by the evidence, is contrary to the evidence or without evidence to support it. Thus, it is not necessary to relate the facts in the case.
1. Enumerations of error 1 and 2 complain of the admission in evidence without objection of certain incriminating statements made by the defendant. The admission in evidence of the statements without objection was not error. Taylor v. State, 220 Ga. 801(3), 142 S.E.2d 239. See also Hill v. State, 214 Ga. 794(1), 107 S.E.2d 662; Alford v. State, 137 Ga. 458(4), 73 S.E. 375. Appellant relies upon the decision in Henry v. State of Mississippi, 379 U.S. 443, 85 S.Ct. 564, 13 L.E.2d 408 which states the general proposition that: 'a litigant's procedural defaults in state proceeding to not prevent vindication of his federal rights unless the state's insistence on compliance with its procedural rule serves a legitimate state interest.' P. 447, 85 S.Ct. p. 567. Applying this rule the court held: 'The Mississippi rule requiring contemporaneous objection to the introduction of illegal evidence clearly does serve a legitimate state interest.' P. 448, 85 S.Ct. p. 567. This holding is directly applicable to our procedural requirement that objection to the admission of incriminating statements made by the accused must be made at the time such evidence is offered; otherwise the accused cannot raise the objection on appeal.
2. Enumerations 4, 5, 6, 7, and 13 complain of the admission in evidence of certain articles taken from appellant's car on the ground that this constituted an unreasonable search and seizure in violation of the 4th and 14th Amendments to the United States Constitution and Art. I, Sec. I, Par. XVI of the Constitution of Georgia and Sec. I, Ga.L.1966, p. 567 (Code Ann. § 27-301).
In our opinion the evidence was admissible under the facts of this case, as the automobile was an instrumentality used in the commission of the crime and was itself admissible in evidence just as would a pistol used to commit a murder be admissible. And just as the cartridges in the pistol, or the spent cartridges found in the gun, would be admissible so would articles found in the car indicative of the use of the car in the commission of the crime be admissible. In order to demonstrate the soundness of these conclusion we must review the pertinent facts. The lady, the victim of the rape, was returning at night from her place of work in Dublin, Georgia to her home in Sandersville some forty miles away. She was alone driving a two-door Pontiac with both doors locked. She noticed a car following her closely. As she would speed up, that car would do the same. He blinked his lights bright and then dim obviously attempting to get her to stop. When she continued at a faster rate of speed, he finally drove up beside her, and struck the left front of her car pushing it into the ditch. The vent window on her side was slightly open, so he forced it open and was in the process of opening the door. She jumped out on the other side and ran. He caught her and after a terrific struggle forced her into his car. She bit him severely on his hand and scratched him about the hands, face and neck. He drove her to an isolated spot, where after further struggle, with him kicking and slugging her and generally beating her up and overpowering her, he raped her.
He drove back to the highway, put her out, and she made her way to the closest house, reaching there in a state of shock and stupor. The matter was reported to Johnson County Sheriff Attaway by telephone. She described the car as being red and white, so a number of officers began searching the countryside for a red and white car. After an hour or so, such a car was found. It was in the vicinity of defendant's house. The officer saw a sign of blood on the outside of the car and one on the inside. He then went to defendant's house and knocked on the door, but got no response. He reported to Sheriff Attaway, who came, knocked on the door, and said open the door. The defendant did, and the officers entered. The sheriff asked defendant where he got the cut on his hand and the visible scratches. He said he got them from briars. The sheriff testified he felt then that he had the right man and told him he was under arrest. The officers brought him, some of his clothes, and the automobile with them to Wrightsville. The crime was committed in the adjoining county, Washington, so the Sheriff of Washington County came to Wrightsville and the officers questioned defendant. He denied his guilt; never made any confession. The sheriff then took the defendant, the articles from the house and the automobile to Sandersville. The car was parked near the jail, and on the second day the officers made a picture of the blood on the outside and inside of the car and cut and removed a patch from the seat cover which had a blood splotch on it, removed a handkerchief which was hanging on the brake, and removed a tire from the car and had a mold made of the tread for comparison with the tire tracks found at the scene of the crime. All of these were admitted over objection that they were the result of an unreasonable and illegal search, since made without a search warrant.
Accepting our original premise that the car was admissible in evidence, as an instrumentality used in the commission of the crime, and it not being practical to produce a car in a courtroom and that the car would have to be held until trial which could be and was several months away, during which time it could deteriorate in value and the evidence of blood, etc., could fade and disappear, it was perfectly proper for the officers to make pictures of the blood stains and a mold of the tire and to preserve the handkerchief. Everything connected with the car, which would in any way demonstrate the use of defendant's car in the commission of this crime, was admissible without a search warrant. The sheriff had a right under the laws of this state to impound and hold the car and its contents as evidence. The seizure of the car was made contemporaneous with, not remote from, and incidental to the arrest.
It is well established by old as well as recent United States Supreme Court cases that instrumentalities used in the commission of a crime may be seized at the time of the arrest without a search warrant. 'The doctrine that a search without warrant may be lawfully conducted if incident to a lawful arrest has long been recognized as consistent with the Fourth Amendment's protection against unreasonable searches and seizures,' Ker v. State of California, 374 U.S. 23, 41, 83 S.Ct. 1623, 1634, 10 L.Ed.2d 726 and cases cited; and, that it is lawful to '* * * seize things connected with the crime as its fruits or as the means by which it was committed, as well as weapons and other things to effect an escape from custody is not to be doubted.' Agnello v. United States, ...
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