Arnold v. State

• Decision Date: 06 April 1976
• Docket Number: No. 30564,30564
• Citation: 224 S.E.2d 386,236 Ga. 534
• Parties: Grady ARNOLD, Jr. v. The STATE.
• Court: Georgia Supreme Court

Page 386

224 S.E.2d 386

236 Ga. 534

Grady ARNOLD, Jr. v. The STATE.

No. 30564.

Supreme Court of Georgia.

April 6, 1976.

J. Douglas Willix, Asst. Public Defender, Atlanta, for appellant.

Lewis R. Slaton, Dist. Atty., Joseph J. Drolet, Asst. Dist. Atty., Arthur K. Bolton, Atty. Gen., Lois F. Oakley, James L. Mackay, Staff Asst. Attys. Gen., Atlanta, for appellee.

HALL, Justice.

This death case presents questions challenging the jury under Witherspoon v. Illinois, 391 U.S. 510, 88 S.Ct. 1770, 20 L.Ed.2d 776 (1968) and the death sentence under the Fourteenth Amendment of the Constitution, and raises numerous enumerations of error related to trial and the defendant's murder conviction. We affirm on the guilt phase of the trial, but reverse the death sentence and remand for a new trial on the sentencing phase.

1. In Enumerations 1, 6 and 7 defendant argues that the court erred in not granting a new trial on the general grounds, in not directing a verdict because the accomplice's testimony was not corroborated, and in inadequately charging the jury on corroboration. There is no merit to these contentions.

The evidence offered by the state showed that five armed men, including the defendant, converged on the RR & S liquor store in East Point; one, Robert Smith remained outside as a lookout, Robert Binns and Jerry Arnold entered the beer side of the store, and the defendant, Grady Arnold, and Willie Ben Johnson went into the liquor side. Jerry Arnold, defendant's cousin, testified at the trial. His story was that after he heard a shot fired in the other side of the store, he saw the defendant step back with a smoking gun and watched as the victim, Ralph Scoggins, slumped down to the floor. The other attendant from the beer side was then ordered to open the safe on the liquor side of the store. One of the robbers shot at him, but missed; then, after loading the cash in a box, they all fled. The defendant took a shot at a passerby, and with the others jumped into Jerry Arnold's red car. When they realized another car was following them, the defendant leaned out and fired at it.

Thomas Wingfield also appeared as a witness against the defendant. He clearly identified Grady Arnold as one of the persons who ran out of the store, in front of his car, and down an alley to escape. He further testified that he knew the defendant and had seen him several times before. The witness even described the kind of truck and car Arnold drove, which the defendant later confirmed.

Code Ann. § 38-121 requires that, in felony cases, an accomplice's testimony be corroborated. In West v. State, 232 Ga. 861, 209 S.E.2d 195 (1974), we held that the corroboration must be independent evidence of the identity and participation of the accused. Brown v. State, 232 Ga. 838, 209 S.E.2d 180 (1974); Hargrove v. State, 125 Ga. 270, 54 S.E. 164 (1906). Wingfield's testimony clearly provided evidence on both of these points in corroboration of co-defendant Jerry Arnold's testimony. Therefore, the trial court did not err in refusing to grant a new trial or to direct a verdict for the defendant on this ground. Daniels v. State, 234 Ga. 523, 216 S.E.2d 819 (1975); Brown v. State, supra; Hackney v. State, 233 Ga. 416, 211 S.E.2d 714 (1974).

The charge to the jury on corroboration correctly stated that the corroborating facts and circumstances must be independent of the accomplice's testimony and could be direct or circumstantial. However, defendant contends that the jury should also have been charged that this evidence 'must cast more than a grave suspicion of guilt on the defendant,' citing Allen v. State, 215 Ga. 455, 111 S.E.2d 70 (1959). This contention has already been decided adversely to defendant's position in Whaley v. State, 177 Ga. 757, 758, 171 S.E. 290 (1933) where we held that there was no error in refusing to give a requested instruction which incorporated this statement. A fortiori where there is no such request, there also can be no error. See Knight v. State, 143 Ga. 678, 85 S.E. 915 (1915).

2. In his third enumeration of error, the defendant contends that the trial court erred in not granting a mistrial after the following question by the state during its redirect examination of a witness who had participated in the robbery. 'In the statement that you (the witness) gave the police . . . did you implicate Grady Arnold as the man that did the shooting?' Since this question was not answered by the witness, the error, if any, was harmless. Watson v. State, 192 Ga. 679, 16 S.E.2d 426 (1941). This is especially true in light of the entire testimony by this witness which clearly implicated the defendant. Defendant's assertion that this question on redirect went beyond the scope of cross-examination is also without merit.

3. Defendant's eighth claim is that the court erred in failing to grant a mistrial when the district attorney told the jury in his closing argument on the sentencing phase that 'from this case, (the defendant) has lied to you.' Since we are remanding this case on this phase of the trial, we need not reach the merits of this contention. See Shy v. State, 234 Ga. 816, 218 S.E.2d 599 (1975).

4. There is similarly no merit to defendant's argument that the photograph of the victim should not have been admitted, especially since the defense attorney refused to stipulate that the body autopsied by the coroner was that of the victim. Eberheart v. State, 232 Ga. 247, 206 S.E.2d 12 (1974); Peacock v. State, 231 Ga. 644, 203 S.E.2d 533 (1974).

5. In his fifth enumeration of error, defendant maintains that the trial court also should have granted a mistrial when a policeman was allowed to repeat the prejudicial words of a witness he had questioned. On direct examination, the state asked the police officer if he had looked for the defendant, Grady Arnold, as a result of a conversation with Wingfield. During cross-examination, the defense attorney went into how many times the police had held Wingfield in jail for questioning, and asked for records as to how many others has been similarly detained. In order to rebut the inference that the police had acted improperly by keeping these witnesses in jail, the state then offered the exact words of the witness to explain the conduct of the officer in detaining Wingfield.

Conversation may be admitted under Code Ann. § 38-302 to explain conduct and as such is not considered hearsay. English v. State,234 Ga. 602, 216 S.E.2d 851 (1975). Although the better practice is to bring out the fact of the conversation without relating the exact words used, where the details are given there is no reversible error unless the words are prejudicial. Kelly v. State, 82 Ga. 441, 9 S.E. 171 (1889).

The defendant contends, however, that the conversation was prejudicial to him because it put his character in issue. Wingfield's actual statement as quoted by the policeman on the stand was 'Mr. Wingfield told me that he had some information for me concerning the murder and that he wanted to talk to me privately because he was afraid to talk openly because he was afraid for his life.' This comment is too nonspecific to be considered a reflection on the defendant's character, especially since Wingfield knew and had already testified that several others were involved in the crime. See Wingfield v. State, 231 Ga. 92, 200 S.E.2d 708 (1973), cert. den., 416 U.S. 942, 94 S.Ct. 1949, 40 L.Ed.2d 294 (1974); Collins v. State, 129 Ga.App. 87, 198 S.E.2d 707 (1973); Bryant v. State, 65 Ga.App. 523, 16 S.E.2d 241 (1941).

Lanier v. State, 187 Ga. 534, 1 S.E.2d 405 (1939) and others cited by the defendant are distinguishable because, in those cases, the prejudicial words revealed prior crimes of the defendant.

The question on redirect was properly within the scope of cross-examination, (Dupree v. State, 235 Ga. 813, 221 S.E.2d 586 (1976); Corbin v. State, 81 Ga.App. 353, 58 S.E.2d 485 (1950); Cameron v. State, 66 Ga.App. 414, 18 S.E.2d 16 (1941), and well within the parameters of the trial court's discretion.

There is similarly no merit to defendant's contention that the court erred in not instructing the jury that the witness' statement could be considered by them only to explain the officer's conduct. Since the omission is not 'clearly harmful and erroneous as a matter of law,' and because the instruction was not requested, there can be no error. Spear v. State, 230 Ga. 74, 75, 195 S.E.2d 397 (1973). Accord, Thomas v. State 234 Ga. 615, 216 S.E.2d 859 (1975); Slocumb v. State, 157 Ga. 131, 121 S.E. 116 (1923).

6. In his second enumeration of error, defendant raises the question whether veniremen can be excluded under the Witherspoon questions (Witherspoon v. Illinois, 391 U.S. 510, 88 S.Ct. 1770, 20 L.Ed.2d 776 (1968), which, though properly phrased, were not individually asked. Instead, the following took place: By the D.A. . . . 'Are any of you conscientiously opposed to capital punishment? If so, please stand.' Whereupon several veniremen stood. Again by the D.A. . . . 'All right, now, for you ladies and gentlemen, I will ask this question. Would your opposition towards capital punishment cause you to automatically vote against the imposition of capital punishment without regard to any evidence that might be developed at the trial of the case before you, if you are selected as a juror? Now, if your answer to that question is yes, please raise your right hand.' Six veniremen so responded and were excused for cause, over the objections of the defense.

It is readily apparent from Witherspoon v. Illinois, supra, Boulden v. Holman, 394 U.S. 478, 89 S.Ct. 1138, 22 L.Ed.2d 433 (1968) and Maxwell v. Bishop, 398 U.S. 262, 90 S.Ct. 1578, 26 L.Ed.2d 221 (1969) that a death sentence cannot be carried out if the excused juror voiced only general objections to the death penalty. 'Such a venireman cannot be excluded unless he makes it unmistakably clear that he would vote against the death penalty regardless of what...