Butler v. State, 32164
| Decision Date | 08 September 1977 |
| Docket Number | No. 32164,32164 |
| Citation | 239 Ga. 591,238 S.E.2d 387 |
| Parties | Charles Aaron BUTLER v. The STATE. |
| Court | Georgia Supreme Court |
Larry D. Ruskaup, Rossville, D. L. Lomenick, Jr., LaFayette, for appellant.
William M. Campbell, Dist. Atty., Rossville, Ian Bruce Hinshelwood, Asst. Dist. Atty., LaFayette, Arthur K. Bolton, Atty. Gen., Isaac Byrd, Staff Asst. Atty. Gen., Atlanta, for appellee.
Defendant Charles Aaron Butler was convicted by a jury of burglary, robbery and two counts of kidnapping with bodily injury. He was sentenced to serve twenty years in prison for the burglary followed by twenty years for the robbery, with two concurrent life sentences for the two kidnapping counts.
The evidence indicates that two masked men entered a home at about 2:00 a. m. The owner, a doctor, and his wife were beaten. The four then went in the doctor's car to his clinic where the kidnappers obtained $250. The wife was able to call police. A policeman arrived in time to apprehend one robber 1 and to observe the other robber briefly as he fled. The policeman testified at trial that in his honest opinion, the defendant was the fleeing robber. The doctor identified the defendant's voice and walk. The license tag numbers of several vehicles near the victims' residence were recorded by police on the morning of the crime, and one of these automobiles was owned by the defendant. The defendant was named in a confession made by Hayes, the man arrested at the scene. The defendant represented himself and introduced Hayes' confession. The defendant also called Hayes as a defense witness. Hayes testified that the defendant was not involved. Under cross examination by use of his confession he testified that a tape recording made of his confession would show the method by which his admissions were obtained.
1. The trial court allowed the jury to be dispersed during the course of the trial. The defendant urges this court to reconsider the rulings of Kessel v. State, 236 Ga. 373, 223 S.E.2d 811 (1976), and Brinks v. State, 232 Ga. 13, 205 S.E.2d 247 (1974), which allow the jury to be dispersed when the state is not seeking capital punishment. We have reviewed those decisions and decline to overrule them. See Collins v. State, 239 Ga. 45, 235 S.E.2d 523 (1977).
2. Counsel for defendant contends that because the defendant rejected the assistance of his appointed counsel and undertook to conduct most of his own defense, the trial court erred in overruling a motion for psychiatric examination of defendant. A defendant's rejection of appointed counsel is not evidence of mental incompetence. The trial judge had the opportunity to judge the ability of the defendant and we cannot say that the trial court erred in denying the motion. Taylor v. State, 229 Ga. 536, 192 S.E.2d 249 (1972); Roach v. State, 221 Ga. 783, 147 S.E.2d 299 (1966), cert. denied, 385 U.S. 935, 87 S.Ct. 297, 17 L.Ed.2d 215 (1966).
3. Defendant contends that the same conduct was used as the basis for both the kidnapping and the robbery convictions, so that his motion for directed verdict as to the kidnapping was improperly denied. Although the facts as to the kidnappings and the armed robbery are closely related, neither crime is included in the other as a matter of fact. Code Ann. § 26-505(a); State v. Estevez, 232 Ga. 316, 206 S.E.2d 475 (1974).
4. Defendant's enumerations four through eight concern evidentiary questions and jury instructions. We find no error committed by the trial court with regard to the matters in these enumerations.
5. A question by the special prosecutor directed to the defendant's brother on cross examination contained a reference to an alleged statement made by their sister incriminating the defendant. Although allowing this question based upon asserted hearsay over objection was error, it was harmless. The defendant had elicited similar statements from the doctor's wife, and in view of other identification evidence, particularly the Hayes confession, it is highly probable that the prosecutor's statement did not contribute to the judgment of the jury. Johnson v. State, 238 Ga. 59, 230 S.E.2d 869 (1976).
6. The pretrial interrogation of Hayes, the man arrested at the scene of the crime, was recorded on tape by a policeman. Pursuant to the...
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