Beck v. State, 41765
| Decision Date | 27 February 1985 |
| Docket Number | No. 41765,41765 |
| Citation | 326 S.E.2d 465,254 Ga. 51 |
| Parties | BECK v. The STATE. |
| Court | Georgia Supreme Court |
W. Dennis Mullis, Fitzpatrick & Mullis, Cochran, for Eli Beck, a/k/a son beck.
James L. Wiggins, Dist. Atty., Eastman, Michael J. Bowers, Atty. Gen., Eddie Snelling, Jr., for the State.
Beck and Ashley forced entry into the home of their former employer, shot and killed him with a pistol, robbed him of a sum of money, and fled. Both were apprehended. Ashley confessed, and Beck made incriminating statements concerning the murder weapon, which he had taken from his mother's home, and a $100 bill, which he had taken from the victim's home.
Ashley pleaded guilty and was sentenced to life imprisonment. Beck was tried for murder, armed robbery, and burglary. The jury returned the following verdict: "We, the Jury find the Defendant Eli Beck, guilty of malice murder, guilty of armed robbery, and guilty of burglary." He was convicted on each count, and thereafter was sentenced to death. 1
Because the death sentence must be set aside, we will consider on this appeal principally those enumerations of error which relate to Beck's conviction.
1. The trial court did not err in refusing to set bond in any amount, upon a finding that Beck might flee the jurisdiction, or might be of danger to the community. Lane v. State, 247 Ga. 387, 276 S.E.2d 644 (1981).
2. The trial court did not err in refusing to grant a change of venue by reason of pre-trial notoriety. Only seven veniremen were excused because of the possible impact of publicity. "[A] trial court's finding that a defendant can receive a fair trial in the county in which the crime was committed will be upheld unless manifestly erroneous." Devier v. State, 253 Ga. 604, 609, 323 S.E.2d 150 (1984).
3. The trial court did not err in failing to grant funds for a challenge to the array of the grand jury, based upon an alleged underrepresentation of persons between 18 to 30 years of age. We have held consistently that this is not a discernible class. White v. State, 230 Ga. 327(1), 196 S.E.2d 849 (1973), Orkin v. State, 236 Ga. 176, 190, 223 S.E.2d 61 (1976), Couch v. State, 253 Ga. 764, 325 S.E.2d 366, (1985). Hence, mathematical calculations derived from such an analysis would be immaterial.
4. There is no merit in Beck's contention, relative to that count of the indictment brought under OCGA § 16-8-41(b) that the term "serious bodily injury" is unconstitutionally vague. Peek v. State, 239 Ga. 422, 238 S.E.2d 12 (1977). Further, inasmuch as the sentence upon the robbery count is to be imposed by the trial judge under our statutory scheme, a finding by the trial judge of the fact of serious bodily injury (the statute requires it to be "found to be true by the court") does not deprive Beck of any jury determination to which he is entitled.
5. The absence of the term "therein" in the count of the indictment charging Beck with burglary (that he entered the dwelling house of another "with the intent to commit a felony or theft") does not render the indictment fatally defective. DePalma v. State, 225 Ga. 465, 169 S.E.2d 801 (1969).
6. The trial court instructed the jury relative to the elements of malice murder and felony murder, and declined to submit to the jury in interrogatory form a special verdict wherein the jury would designate whether the defendant was guilty of felony murder and to specify whether Beck did, or did not, attempt to kill or intend to kill the victim. As these elements of the charge were correct, we find no error.
7. The trial court denied a motion to suppress evidence seized under a warrant, finding that the warrant was supported by probable cause. As these findings are not clearly erroneous, there was no error. Dean v. State, 250 Ga. 77, 295 S.E.2d 306 (1982).
8. After conducting a Jackson-Denno hearing, the trial court found that Beck's statements while in custody were made voluntarily. A review of the record establishes that this finding was not clearly erroneous, and this enumeration is without merit. Powell v. State, 252 Ga. 297, 313 S.E.2d 90 (1984).
9. Photographs of the crime scene were not unduly prejudicial, inasmuch as they reflected the result of the homicide, robbery, and burglary. No autopsy photographs were admitted. Brown v. State, 250 Ga. 862, 302 S.E.2d 347 (1983).
10. During the guilt-innocence phase of the trial, Beck sought to introduce evidence of extra judicial statements made by Ashley which indicated that Ashley had fired the murder weapon. (These statements were admitted, in mitigation, at the sentencing phase). There was no foundation under the rule laid down in Gibbons v. State, 253 Ga. 283, 319 S.E.2d 861 (1984), and the exclusion of the statements by the trial court was not error.
11. The trial court did not err in excluding from evidence letters written by Beck, which were later seized by law enforcement authorities, as they were merely self-serving declarations. Dickey v. State, 240 Ga. 634, 242 S.E.2d 55 (1978).
12. Over objection, the district attorney asked Beck on cross-examination: "In a physical confrontation do you believe you could handle Mrs. Porter?" The district attorney referred to Ashley also in cross-examination, as a "bloodthirsty person."
A party is entitled to a thorough and sifting cross-examination. Casey v. State, 249 Ga. 724, 293 S.E.2d 321 (1982). Part of Beck's defense was that Ashley had forced him to engage in the crime, and then--without warning--Ashley shot the victim. Beck also had testified that the plan was that the victim and his wife would be subdued, not killed. Inasmuch as the inquiry and the reference were made during cross-examination of Beck, there was no error.
13. While not enumerated as error, we have reviewed the record in this case and find that the evidence is amply sufficient to enable a rational trier of fact to find Beck guilty beyond a reasonable doubt. Jackson v. Virginia, 443 U.S. 307, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979); Enmund v. Florida, 458 U.S. 782, 102 S.Ct. 3368, 73 L.Ed.2d 1140 (1982). The convictions are affirmed.
14. Nonetheless, we find it necessary to vacate the sentence of death, and to return the case for a new trial as to sentence.
OCGA § 17-10-2(a) provides in part that, excepting cases in which the death penalty may be imposed, the trial judge upon return of a guilty verdict, shall hold a pre-sentence hearing for the purpose of determining punishment. ...
To continue reading
Request your trial
-
Walker v. State
...right to argue, and on the issue of sentence, the defendant always has the final closing argument. OCGA § 17-10-2. See Beck v. State, 254 Ga. 51(14), 326 S.E.2d 465 (1985) (reversing the death sentence where the defendant was denied his right to make the final closing For the foregoing reas......
-
Romine v. Head
...opened the arguments, to be followed by the defense. There was to be no rebuttal argument. See O.C.G.A. § 17-10-2; Beck v. State, 326 S.E.2d 465, 469 (Ga. 1985). Towards the end of his argument the prosecutor held up crime scene photographs of the interior of the house in which Romine murde......
-
Reliance Ins. Co. of Ill. v. Richfield Hospitality
... ... and Christopher Gray, Civ.A. No. 96-VS-0118792 (Fulton County State Court filed Oct., 1996) (hereinafter the "Thijssen suit"). ( Id. at ¶ 5.) The Thijssen suit ... ...
-
State v. Johnson
...264 Ga. 231, 443 S.E.2d 483 (1994), reaffirming that "loitering" and "prowling" were not unconstitutionally vague; and Beck v. State, 254 Ga. 51(4), 326 S.E.2d 465 (1985), which upheld "serious bodily injury" against the contention that it was unconstitutionally vague. We must read the stat......