Carroll v. State
| Decision Date | 28 September 1978 |
| Docket Number | No. 56614,56614 |
| Citation | 248 S.E.2d 702,147 Ga.App. 332 |
| Court | Georgia Court of Appeals |
| Parties | CARROLL et al. v. The STATE. |
Michael S. Moldavan, Chatsworth, for appellants.
Charles A. Pannell, Jr., Dist. Atty., Stephen A. Williams, Asst. Dist. Atty., for appellee.
This is the second appearance of this burglary case before this court. A previous trial and conviction were overturned in Carroll v. State, 143 Ga.App. 796, 240 S.E.2d 197 (1977), due to the erroneous admission of evidence that the two appellants, Dennis and Wayne Carroll, had committed a prior burglary. Following a second trial, the appellants were again found guilty. They appeal the denial of their motion for new trial.
The evidence established, among other things, that the appellants had been found in possession of property stolen during the burglary, that a footprint left at the scene matched a shoe worn by one of them, and that both had confessed to participation in the crime. Held :
1. Aaron v. State, 145 Ga.App. 349, 243 S.E.2d 714 (1978). The fact that the appellants made confessions implicating each other does not necessarily establish such prejudice. In this case, the confessions were made jointly and do not set out conflicting defenses. In fact, they corroborate each other. The trial court did not abuse its discretion in denying the motion for severance.
2. It was not error to overrule a motion to suppress the victim's testimony that he saw some of the stolen items in the home of Dennis Carroll. The victim was invited into the home by Mrs. Dennis Carroll while he and some uniformed deputy sheriffs were waiting outside for the arrival of a search warrant. Even assuming arguendo that the wife's invitation was not extended freely and voluntarily, it is clear that the victim was motivated by his own personal interest in recovering his property when he entered the house and identified the property as his. Thus, the trial court was fully authorized to conclude that he was not acting on behalf of law enforcement authorities and, consequently, that no Fourth Amendment violation resulted. See generally Burdeau v. McDowell, 256 U.S. 465, 41 S.Ct. 574, 65 L.Ed. 1048 (1921); Tootle v. State, 135 Ga.App. 840, 219 S.E.2d 492 (1975); Lester v. State, 145 Ga.App. 847(2), 244 S.E.2d 880 (1978).
3. The appellants' confessions were not inadmissible as the fruit of an illegal search and seizure. The two brothers were arrested and made their confessions following a search of Dennis Carroll's home. This search was ruled to be illegal on the ground that the search warrant upon which it was based was invalid; however, it is clear that the sheriff's department already had probable cause to arrest the appellants when the search took place, and it is evident that the arrest was not predicated on the results of the illegal search. Instead, it appears that the appellants were already being sought due to the fact that one item of stolen property had been recovered from their van and another had been identified in Dennis Carroll's home. Under these circumstances, the confessions cannot be held to be barred by the "fruit of the poisonous tree" doctrine espoused in Wong Sun v. United States, 371 U.S. 471, 83 S.Ct. 407, 9 L.Ed.2d 441 (1963).
4. A former assistant district attorney, Mr. Dean Donehoo, was named " special prosecutor" to assist the district attorney in prosecuting this case. Mr. Donehoo, now a private practitioner, was appointed because he had handled the first trial of the case as assistant district attorney. The appellants objected that this procedure violated Code Ann. § 24-2919(4)(a) (Ga.L.1977, pp. 1257, 1262), which provides that any "assistant district attorney, deputy district attorney, or other attorney-at-law employed by the district attorney who is compensated in whole or in part by State funds shall not engage in the private practice of law." See also Code Ann. §§ 24-2913, 24-2914.
Even if we assume that the above Code section was violated by the appointment of Mr. Donehoo to try the case, we would not for this reason be led to the conclusion that the appellants were denied their right to a fair trial. There has been no showing that the appellant was prejudiced in any way by Mr. Donehoo's involvement in the case. Instead, we have before us only an unsupported assertion that the jury somehow "got the impression that the appellants had been singled out for special prosecution by the state." Under these circumstances, we find no ground for reversal of the convictions. Cf. Burnett v. Doster, 144 Ga.App. 443(3)(d), 241 S.E.2d 319 (1978).
5. It was not error to allow the state to use the transcript of the first trial for impeachment purposes. See generally Code § 38-1803. There was never any reference at trial to the fact that a previous jury had found the appellants guilty of the offense for which they were being tried. Thus, even if the use of the transcript indicated to the jurors that there had been a previous trial, it could just as easily have led them to the conclusion that the previous trial had resulted in a mistrial as that it had resulted in a conviction. Furthermore, the appellants' attorney himself used the transcript of the first trial in an attempt to impeach a witness. This enumeration of error is without merit.
6. The trial judge did not err in sustaining the state's objections to the manner in which the counsel for the appellants attempted to impeach a witness through use of that witness' testimony at the former trial. Code § 38-1803 provides that a witness may be impeached by contradictory statements and that where such statements are in writing, "the same shall be shown to him, or read in his hearing . . ." Defense counsel never showed the witness his prior testimony, nor attempted to read it to him, but instead merely...
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Martin v. State
...the trial court and will not be reversed unless it can be shown the joint trial constituted a denial of due process. Carroll v. State, 147 Ga.App. 332, 248 S.E.2d 702 (1978). In determining the severance issue, the trial court must consider the following: (1) Whether the joint trial will cr......
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Carver v. State, 74523
...of which were made [by defendant's counsel] below. See Williams v. State, 156 Ga.App. 17(1) (274 SE2d 71) (1980); Carroll v. State, 147 Ga.App. 332(7) (248 SE2d 702) (1978); Favors v. State, 145 Ga.App. 864(2) (244 SE2d 902) (1978)." Keen v. State, 164 Ga.App. 81, 88(7), 296 S.E.2d 3. Next,......
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State v. Watkins
...(2000) ( "The equally rational inference is a mistrial due to the inability to achieve a unanimous verdict."); Carroll v. State, 147 Ga.App. 332, 248 S.E.2d 702, 705 (1978) ("[E]ven if the use of the transcript indicated to the jurors that there had been a previous trial, it could just as e......
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Leonard v. State
...which shows "that the defendant suffered prejudice amounting to a denial of due process." OCGA § 17-8-4; Carroll v. State, 147 Ga.App. 332, 333, 248 S.E.2d 702 (1978); see also Jones v. State, 243 Ga. 584, 586, 255 S.E.2d 702 (1979); Cain v. State, 235 Ga. 128, 129, 218 S.E.2d 856 (1975); M......