Allen v. State, s. 30311

• Decision Date: 24 November 1975
• Docket Number: Nos. 30311,30312,s. 30311
• Citation: 235 Ga. 709,221 S.E.2d 405
• Parties: Ambrey DeWitt ALLEN, Jr., et al. v. The STATE. David WARREN v. The STATE.
• Court: Georgia Supreme Court

Page 405

221 S.E.2d 405

235 Ga. 709

Ambrey DeWitt ALLEN, Jr., et al. v. The STATE.

David WARREN v. The STATE.

Nos. 30311, 30312.

Supreme Court of Georgia.

Nov. 24, 1975.

Rehearings Denied Dec. 15, 1975.

Ambrey DeWitt Allen, Jr., pro se.

Charles Wayman Patrick, pro se.

W. Buford Mitchell, Forsyth, for Allen and others.

Jim Hudson, Athens, for Warren.

Ben J. Miller, Dist. Atty., Thomaston, Arthur K. Bolton, Atty. Gen., John W. Dunsmore, Jr., G. Stephen Parker, Asst. Attys. Gen., Atlanta, for appellee.

INGRAM, Justice.

These three appeals are from the Superior Court of Pike County. The appellants were convicted in a single trial of the following offenses: the armed robbery of the Bank of Molena; the kidnapping of Mr. John P. Barker, Jr., the bank's executive vice-president and cashier, his wife and son; and the theft of the family's automobile station wagon. A joint appeal was filed by appellants Allen and Patrick, but appellant Warren filed a separate appeal. All three cases will be reviewed and decided in this opinion.

On a Monday evening, three men, wearing masks and carrying guns, broke into the Barker home and held the family until the time lock on the bank vault opened between 8:30 and 9:00 o'clock the next morning. The masked intruders forced the Barkers to accompany them to the bank and tied up the bank employees as they arrived for work. Approximately $18,700 was taken from the bank by the three men. The Barkers testified that two rings were taken from their home and that their station wagon was also stolen. The car was subsequently found abandoned and a massive manhunt was begun almost immediately for the robbers. Testimony from one of the search party indicated that the officers followed three sets of footprints from the abandoned automobile into the woods. Two sets of footprints split off from the third and parted company with it. Early the next morning, at a farm house near Fayetteville, Mr. Adel Penson was forced by two masked men to drive them out of the area. They took off their masks while they were with him and Mr. Penson later identified these two men as appellants Allen and Patrick. They forced Mr. Penson to drive them to Douglasville. However, enroute they stopped at a service station in Tyrone for gas and while there they were discovered and arrested by Georgia D.O.I. agents. Appellant Warren was arrested elsewhere and the Barkers identified him at trial from his voice, mannerisms and coloring as being one of the robbers.

A principal defense of appellants Allen and Patrick at trial was alibi. Appellant Allen claimed he had been searching for his car that he said had been stolen. Appellants also contended they had been doing some deer hunting and ran away when they heard about the manhunt, fearing they would be arrested for illegally hunting, and got lost in the woods. They admit approaching the witness Adel Penson for a ride after coming out of the woods, but denied having a shotgun or masks and denied threatening him. They also denied any part in the crimes with which they were charged.

Case No. 30311

We consider first the 22 enumerations of error raised by appellants Allen and Patrick. Prior to trial, two people were kidnapped in Clayton County and the release from jail of appellant Warren was demanded for the release of these kidnapped victims. There were also threats on the life of a State's witness and on the trial judge. As a result of all this, extra security measures were taken at the trial including having all the appellants brought into the courtroom in handcuffs. Some prospective jurors saw the appellants handcuffed, even though the restraints were removed once they were in the courtroom. All persons entering the courtroom were searched for weapons by sheriff's deputies.

Appellants Allen and Patrick first enumerate as error the refusal of the trial judge to continue their trial to the next term of court. They claim they were prejudiced in the presence of the prospective jurors before the trial began. In enumeration No. 13, they also allege it was error to refuse a mistrial because of the security measures taken throughout the trial, which included the presence in the courtroom of a number of officers and the searching of all persons entering the courtroom.

These contentions are without merit. The refusal to continue the case or to grant a mistrial was within the discretion of the trial judge in this case. See Brand v. Wofford, 230 Ga. 750(6), 199 S.E.2d 231; Morris v. State, 228 Ga. 39, 51, 184 S.E.2d 82 (1971). See also United States v. Hamilton, 444 F.2d 81 (5th Cir. 1971). We hold these security measures were reasonable and appropriate under the circumstances of this case and did not deny appellants a fair trial.

A) defendant has a right to be tried in an atmosphere free of partiality created by the use of excessive guards except where special circumstances (exist), which in the discretion of the trial judge, dictate added security precautions.' Kennedy v. Cardwell, 487 F.2d 101, 108 (6th Cir. 1973). For example, where a defendant had a history of escape, it was within the trial judge's discretion to instruct the U.S. marshal to use whatever restraints were necessary to transport him to and from the courtroom. United States v. Bankston, 424 F.2d 714 (5th Cir. 1970). Abuse of discretion is also the test for use of restraining devices. United States v. Henderson, 472 F.2d 556 (5th Cir. 1973), cert. denied,411 U.S. 971, 93 S.Ct. 2166, 36 L.Ed.2d 694. See also United States v. Greenwell, 418 F.2d 846 (4th Cir. 1969), and Gregory v. United States,365 F.2d 203 (8th Cir. 1966). We find no error because of the special circumstances extant in this case and conclude the trial judge acted reasonably in taking security precautions at the trial.

Enumeration of error no. 2 has not been supported in the brief by citation of authority or argument and is considered as abandoned under Rule 18c(2) of this court.

Enumeration no. 3 concerns the trial court's refusal to sever the trials of appellants Allen and Patrick from appellant Warren's trial. The motion to sever was based on the pre-trial kidnapping to secure the release of appellant Warren from jail. Code Ann. § 27-2101 controls this issue and the decision whether to sever the trials was in the second discretion of the trial court. The appellants have failed to show any prejudice or that the trial judge abused his discretion. This enumeration is without merit. See Woodruff v. State, 233 Ga. 840, 842, 213 S.E.2d 689 (1975); and, Cain v. State,235 Ga. 128, 218 S.E.2d 856.

Enumeration no. 4 concerns the refusal of the trial court to grant a motion for change of venue. It was based primarily on the publicity that surrounded the robbery and the subsequent kidnapping in Clayton County. Code Ann. § 27-1201 provides for a change of venue when an impartial jury cannot be obtained in the county where the crime is alleged to have been committed. In the hearing on the motion for a change of venue and severance a newspaper woman testified that the trial and kidnapping received a good deal of coverage by newspapers and television. However, this testimony falls short of showing that appellants were unable to receive a fair trial in Pike County. See Anderson v. State, 222 Ga. 561, 150 S.E.2d 638 (1966). See also Pierce v. State, 125 Ga. App. 490, 188 S.E.2d 181 (1972). In addition, the extensive voir dire of the prospective jurors indicates that those selected had no fixed opinion on the appellants' guilt or innocence. See Murphy v. Florida, 421 U.S. 794, 95 S.Ct. 2031, 44 L.Ed.2d 589 (1975); and Krist v. Caldwell, 230 Ga. 536, 198 S.E.2d 161 (1973). The decision to grant a motion for change of venue is largely within the trial court's discretion and its decision will be reversed on appeal only for an abuse of discretion. Jarrell v. State, 234 Ga. 410, 415, 216 S.E.2d 258 (1975). We find none here.

Enumeration of error no. 5 concerns the refusal of the trial court to allow each appellant to peremptorily challenge 20 jurors each or alternatively to challenge an additional five jurors each. Instead the trial court allowed all appellants together a total of 20 strikes. Appellants contend this violates Code Ann. § 59-805. Prior to 1972 when the legislature amended § 27-2101, each appellant would have been permitted 20 strikes. See Butler v. State, 92 Ga. 601, 19 S.E. 51 (1893). However, since 1972, the rule in Georgia has been, 'When two or more defendants are tried jointly for a crime or offense said defendants shall be entitled to the same number of strikes as a single defendant if tried separately. Said strikes shall be exercised jointly by the defendants or shall be apportioned among the defendants in the manner the court shall direct. In the event two or more defendants are tried jointly, the court, upon requests of defendants, acting in its sole discretion, may allow an equal number of additional strikes, not to exceed five each, to the defendants as the court shall deem necessary to the ends that justice may prevail.' Code Ann. § 27-2101 (Ga.L.1972, p. 618). We conclude that when Code Ann. §§ 59-805 and 27-2101 are construed in pari materia, the defendants in this case were entitled to a total of 20 strikes to be exercised by all of them. See Lowe v. State, 133 Ga.App. 420, 210 S.E.2d 869 (1974). In addition, the trial court did not abuse its discretion in refusing to allow additional strikes.

Enumeration of error no. 6 complains of the failure of the trial court to qualify the jurors as to whether they were related to the victims of the kidnapping or whether they were stockholders in the Bank of Molena. No request was made to the trial court for this qualification and counsel for the appellant asked questions relating to each of these relationships during voir dire to many of the potential jurors. Without deciding whether or not these two relationships are grounds for disqualification for cause in this case, this...