Berryhill v. State

• Citation: 221 S.E.2d 185,235 Ga. 549
• Decision Date: 28 October 1975
• Docket Number: No. 30173,30173
• Parties: Michael Gene BERRYHILL, alias Michael Gene Stanley v. The STATE.
• Court: Supreme Court of Georgia

Page 185

221 S.E.2d 185

235 Ga. 549

Michael Gene BERRYHILL, alias Michael Gene Stanley v. The STATE.

No. 30173.

Supreme Court of Georgia.

Oct. 28, 1975.

Rehearing Denied Nov. 24, 1975.

William T. Elsey, Kit Barron Bradshaw, Cartersville, for appellant.

David N. Vaughn, Jr., Dist. Atty., Cartersville, Arthur K. Bolton, Atty. Gen., Harrison Kohler, Atlanta, for appellee.

HALL, Justice.

Michael Gene Berryhill, alias Michael Gene Stanley, was charged and convicted of felony murder and armed robbery by a jury in Bartow County. He received the death sentence for the felony murder and life imprisonment for the armed robbery.

Defendant, age 23, had a long history of psychological problems and a lengthy prior criminal record. He was diagnosed as a sociopathic personality affected with paranoid schizophrenia and suffered from delusional compulsions. In addition, he had been addicted to airplane glue sniffing from the age of thirteen.

On the evening of October 7, 1974, defendant and Jerry Roy Lane rode around Cartersville, Georgia, selecting homes for potential burglaries. Defendant picked out the home of George Hooks and rang the door bell. When Hooks refused to admit the defendant, he first a shot through a window, reached in and opened the door. As Hooks fled up the stairs, defendant shot him twice in the legs; then, followed him upstairs and shot him a third time through a closed bedroom door. Defendant shot Hooks twice more, the fifth shot was through the head while Hooks lay on the floor of his daughter's bedroom. Defendant then demanded money from Mrs. Hooks and threatened to shoot both Mrs. Hooks and her daughter. He also grabbed eleven year old Steven by the hair and threw him down next to his dying father.

Defendant tore the phone out of the wall and followed Mrs. Hooks downstairs where she gave him all the money they had, a total of six dollars. When Mrs. Hooks refused to lie down next to her husband's body, defendant suddenly ran out of the house. Defendant was apprehended a little over a month later in Missouri and returned to Georgia for trial. He now appeals from his conviction.

1. The evidence supports the verdict of guilty.

2. Berryhill contends the trial court erred in denying his motion for change of venue. Only newspaper clippings were presented with the motion, and voir dire examination included questioning on any possible prejudice from these articles. Furthermore, the final order on the motion was not signed until after the voir dire examination.

Under the circumstances of this case, the trial court did not err in denying the motion for change of venue. Krist v. Caldwell, 230 Ga. 536, 198 S.E.2d 161 (1973); McCrary v. State, 229 Ga. 733, 194 S.E.2d 480 (1972); Dutton v. State, 228 Ga. 850, 188 S.E.2d 794 (1972).

3. We find no merit in Berryhill's contention that the court erred in denying to defense counsel his request to reserve his opening statement to the jury until the conclusion of the state's case, and before beginning the defendant's case in chief.

Although Code Ann. § 27-2201 prescribes the order in which opposing counsel will make their closing arguments to the jury, the statutes are silent concerning the order counsel will follow in making their opening statement to the jury. Similarly, there are no Georgia cases on this point delineating any particular right of counsel to make his opening statement at one time or another in his sole discretion. Thus, we have something of a question of first impression.

We note that this question concerns a right far more procedural than substantive-that is, when the statement may be made, not whether one is allowed. It is traditional that most of these procedural matters which come up during the conduct of a trial should lie within the sound discretion of the trial court in the absence of a controlling statute, and there is none here. We see no reason why the traditional approach is inappropriate here, and accordingly we conclude that the trial court may rule in its discretion whether the defendant's opening statement shall be made following the state's opening statement or at the conclusion of the state's case. Cf. Pealock v. Pealock, 227 Ga. 795, 183 S.E.2d 397 (1971); Hines v. Donaldson, 193 Ga. 783, 20 S.E.2d 134 (1942); Duke v. Steed, 127 Ga.App. 541, 194 S.E.2d 257 (1972). This is also the rule generally followed throughout the country. 'Where there is no statute or rule of court as to the time at which defense counsel in a criminal case may make his opening statement, the courts generally hold that it is a matter within the sound discretion of the trial court, and any exercise of such discretion will not be reversible error unless there is a clear showing of abuse of discretion or the defendant suffers some substantial injury.' Annot., 93 A.L.R.2d 951, 965 (1964) Accord, 75 Am.Jur.2d 287, Trial § 203 (1974).

Berryhill makes no showing of harm to him flowing from the court's ruling on this point; and accordingly, we conclude that it has not been shown that the trial court abused its discretion.

4. Berryhill enumerates as error an order of the trial court that counsel for the defendant divulge to the district attorney, prior to trial, a list of all the witnesses the defendant expected to use. The order was in response to a motion by the prosecuting attorney. Appellant's counsel made no objection and complied with the court's order. There being no objection in the court below, the point is not subject to appellate review. Furthermore, the appellant has failed to show any harm from compliance with the order.

5. Berryhill's contention that when a prisoner is known by police to be represented by counsel, anything he says to police in the absence of counsel is per se inadmissible, whether 'voluntary' or not, is without merit. Pierce v. State, 235 Ga. 237, 219 S.E.2d 158.

6. Berryhill contends the trial court erred in denying his motion for mistrial and in refusing to instruct the jury to disregard the testimony of the police chief that Berryhill had told him, 'I've been in jail since I was thirteen years old and I'm not going back . . . I'll either kill myself or I'll kill someone else and make y'all kill me.' This statement was part of his whole incriminating statement or confession. The testimony of the police chief immediately preceding the above was 'I asked him if he was willing to talk to us about the charges. He said 'I'll talk to you about part of them and part of them I won't until after I consult with my attorney and my mother.' He went on to make the statement, he said 'I'm not going to serve any time,' He said . . .' and then came the above statement.

We find no error. 'It is no valid ground of objection to the admission in evidence of an incriminatory statement or confession made by the accused in a criminal case that the language indicated that the accused had committed also another and separate offense.' Calhoun v. State, 210 Ga. 180, 181, 78 S.E.2d 425, 427 (1953).

7. Berryhill contends the trial court erred in denying his motion for mistrial on the grounds of (1) alleged highly inflammatory and prejudicial remarks made by the prosecutor in his closing argument to the jury; (2) the prosecutor misstated the law as to the results of an acquittal by reason of insanity and (3) that the trial court erred in denying him the right to argue these first two grounds in the presence of the jury. He also contends the trial court erred in refusing to instruct the jury to disregard the remarks of the prosecutor and to reprimand the prosecutor for the remarks he made.

The remarks objected to are 'Well, my friends, if you do, (find him not guilty by reason of insanity) and His Honor is going to charge you this in the law and Mr. Elsey read some of it to you, as long as His Honor can keep him, as long as he can require him to be confined is one year, and if you do it, my friends, let's you and I and let's all the people of this county and this state spend that year fortifying our houses with guns, and ammunition and barring our doors because you will have turned loose a sociopath. You will have turned loose something worse than a mad dog, if you do it.'

These remarks, in identical settings, have been considered in other appeals. In Miller v. State, 226 Ga. 730, 731, 177 S.E.2d 253 (1970) the prosecutor's characterization of the defendant 'as a brute, beast, an animal, and a mad dog who did not deserve to live . . .' was held not to require a mistrial. Appeals to convict for the safety of the community have at least by inference been upheld in Hart v. State, 227 Ga. 171, 179 S.E.2d 346 (1971), and Bryant v. Caldwell, 484 F.2d 65, 66 (1973), cert. den., 415 U.S. 981, 84 S.Ct. 1572, 39 L.Ed.2d 878 (1974).

In Lingo v. State, 224 Ga. 333, 162 S.E.2d 1 (1968) and prosecutor's remarks that if the jury found in favor of the plea of insanity, the defendant would be sent to a state hospital and remain there until discharged 'in the manner prescribed by law' was upheld. Therefore, we find no error in denying a mistrial where the language was similar to that in Lingo and not an incorrect statement of the law. In addition, the trial judge instructed the jury that he was to be its only source of the law to be applied and instructed the jury in accord with Code Ann. § 27-1503. See also Hulsey v. State, 233 Ga. 261, 210 S.E.2d 797 (1974).

The jury has no function in a motion for mistrial. Therefore, there is no right to argue the motion in the presence of the jury. All of these contentions are without merit.

8. Berryhill contends the trial court erred in its charge to the jury wherein it alluded to the necessity of showing imbecility or idiocy as a requirement for proving insanity. The trial court's charge was: 'Mental abnormality or mere weakness of mind is no excuse unless it amounts to imbecility or idiocy which deprives the offender of the ability to distinguish right from wrong.' The instruction clearly shows that...