Cobb v. State, 35107
| Decision Date | 26 September 1979 |
| Docket Number | No. 35107,35107 |
| Citation | 244 Ga. 344,260 S.E.2d 60 |
| Parties | COBB v. The STATE. |
| Court | Georgia Supreme Court |
Rogers & McCord, John D. McCord, III, Ashburn, for appellant.
Thomas H. Pittman, Dist. Atty., Arthur K. Bolton, Atty. Gen., for appellee.
This is the direct appeal of Anthony Jerome Cobb from his conviction in Turner County Superior Court of the armed robbery and murder of Harvey M. Downing and his sentences of life and death, respectively.
The state presented evidence from which the jury was entitled to find the following:
On November 22, 1976, at approximately 11:45 p. m., a carload of black males drove up to the Ashburn Motor Inn in a dark, late-model car. One of the men came in and filled out a registration card. The night clerk, Harvey Downing, asked him to write down his car's license tag number, which he did after returning to the car to check the number. At that point, the man pulled a gun on Downing, demanded cash, shot him in the left eye, and took approximately $317 from the motel's cash drawer. Based on the information on the registration slip and from Downing's statement, deputy sheriff Nutt radioed a lookout for a dark, late-model car, Georgia license tag No. T EN 836, containing two black males. He then took Downing to the hospital, where he subsequently died.
Ocilla, Georgia, police officers, alerted by Nutt's radio call, stopped an older model, green Plymouth, bearing Georgia license tag No. H EN 683, driven by Harold Dean Sneed, the appellant's co-defendant. The officers, recognizing Sneed as a local resident, let him go. Neither of them recognized his black, male passenger.
A GBI special agent observed at the scene of the crime a motel registration card; a room key; a pair of men's glasses with the left lens missing, lying on the registration desk; bloodstains and lens particles on the floor and desk; and the open cash drawer, empty of bills. An autopsy of the decedent revealed that he had been in good health for his age (72 years), and that death was caused by a bullet in his brain which had entered between his left eye and his nose. After being advised of his rights, the appellant executed, on December 2, a handwriting sample, which the state crime lab identified as the same as the handwriting on the motel registration card.
The appellant, meanwhile, left Georgia. On December 10, deputy sheriffs in Volusia County, Florida, acting on a radio lookout for two black males wearing brown leather jackets driving a greenish 1970 or 1971 Buick, stopped a car matching this description. The car contained a .22 caliber revolver, two brown leather jackets, a knit cap with $400 cash in it, and, among others, the appellant and co-defendant Sneed, who were arrested.
The appellant was read his rights five times, after which he made a full confession of the robbery and homicide. State crime lab tests showed that the bullet which killed Downing was fired from the pistol seized from the appellant. No evidence was introduced in the appellant's behalf at the trial.
1. The trial court did not err in overruling the appellant's motion to dismiss for an alleged violation of the Interstate Agreement on Detainers, Code Ann. Ch. 77-5B (Ga.L.1972, p. 938 et seq.), in that his trial did not begin until a year after the State of Georgia first took custody of him. The court was authorized to find that the 120-day time limit of Code Ann. § 77-505b(c) was tolled by the delay occasioned by the appellant's numerous pretrial motions, including challenges of three separate indictments, in the face of the state's good-faith efforts to expedite the trial. See Reaves v. State, 242 Ga. 542, 552(7a), 250 S.E.2d 376 (1978) and cit. Enumerated error 1 is without merit.
2. Enumerated errors 2 and 3 are the overruling of the appellant's challenges to the arrays of the grand and traverse juries. We affirm as to both.
( a) The appellant contends that persons 65 years of age or older are no longer exempt from jury duty, hence were improperly not included in the jury lists unless they had specifically requested to be included.
Code Ann. § 59-112(a)(6) (Ga.L.1967, p. 725) provided as follows: Ga.L.1978, pp. 221, 222, repealed paragraph 6 of subsection (a) and added subsection (e): "Any person who is 65 years of age or older who does desire to serve upon juries shall notify the jury commissioners of the county in which such person resides in writing to that effect, and thereupon the jury commissioners shall place the name of such person in the jury box for said county." Whatever the reasons for such amendment may have been, it is apparent that the result is the same as previously, viz., that the exemption is still in effect and that it is not permissible to place persons who are 65 years of age or older in jury boxes unless they shall make request therefor in writing to the jury commissioners of the county of their residence. See Op.Atty.Gen. U77-37 (1977). The record shows that the Turner County jury commissioners followed this procedure.
Moreover, the appellant cannot complain of any alleged underrepresentation of older citizens on Turner County juries, as age is not a recognized class for the purposes of grand and traverse jury representation. Fouts v. State, 240 Ga. 39, 41(1B), 239 S.E.2d 366 (1977) and cits.
(b) The juries were drawn pursuant to the provisions of Code § 59-205 (grand jury) and Code § 59-702 (traverse jury), which do not have the requirements for the drawing to be "at the close of each term, in open court," contained in the alternative method of drawing jurors provided in Code § 59-203.
( c) The drawing of the grand jurors on December 13, at which time no superior court judge was present in Turner County, rather than on December 19, when the calendar had indicated they would be drawn, did not invalidate the drawing. The alternative method provided by Code § 59-205 may be used "(w)henever From any cause the judge shall fail to draw a grand jury . . ." (Emphasis supplied.) Once this method was instigated, the drawing had to be done "at least 20 days previous to the next ensuing term of the court," which in this instance was January 8.
( d) The absence of the "ordinary" (now probate judge) at the drawing of the grand jury and his failure to sign the minutes after the clerk had made the proper entry thereon, were mere irregularities, which will not vitiate the drawing, or render the jury drawn illegal. Smith v. State, 90 Ga. 133(1) ( 15 S.E. 682) (1892). "Where the law is substantially complied with, and upright and intelligent men form the grand jury, . . . the courts should not set aside proceedings by such an inquest on mere technicalities." Roby v. State, 74 Ga. 812(2a) (1885). These conditions were met in the present case.
3. In the fourth enumeration of error, the indigent appellant alleges that the trial court erred in refusing to appoint or provide an independent psychiatrist or other qualified person to evaluate his mental capacity. The purpose of the requested evaluation was to provide a mitigating circumstance for sentencing purposes, based on the theory that he was a drug user and " thought" he was under the influence of THC when he committed the murder. The appellant's credibility and ability to remember details was rendered suspect, however, by his claim that he didn't remember the location or details of his previous trials. Moreover, he admitted understanding the pretrial proceedings in his case, which were somewhat complicated. In the absence of any special plea of insanity by the appellant, the request for a psychiatric examination lay within the discretion of the trial court, and no abuse of discretion warranting a reversal of the denial of the motion appears from the record. Westbrook v. State, 242 Ga. 151, 153(1), 249 S.E.2d 524 (1978) and cits. This enumeration of error is without merit.
4. The fifth enumeration of error is the overruling of the appellant's motion to suppress the evidence seized at the time of his arrest in Florida. It is contended that there was no probable cause for arrest, as the only real correspondence was that the radio report described blacks in a Buick, and the persons stopped were blacks in a Buick.
In Chambers v. Maroney, 399 U.S. 42, 90 S.Ct. 1975, 26 L.Ed.2d 419 (1970), the arresting officers had a description of an alleged robber's clothing and car. The officers stopped a car matching the description, containing similar occupants, and arrested them after more corroborating evidence was found in the car. The Supreme Court upheld the ensuing convictions in the face of a Fourth-Amendment challenge. In the present case, the officers had probable cause to stop the vehicle. The traffic at that time of the night was light. Although the car stopped was a goldish colored 1969 Buick, rather than a 1970 or 1971 green Buick, there was evidence that the car appeared green under the lights of the interstate highway, and that the body styles of the 1970 and 1971 Buicks were very similar to that of the 1969 model. Although the car contained three black males, rather than the two described in the radio report, the assumption could have been made that the third was the driver of the getaway car. Two matching leather jackets in plain view on the car's back seat corresponded with and corroborated the report that the robbers had been wearing such jackets during the robbery. This enumeration of error is without merit.
5. The trial judge did not abuse his discretion, as contended in enumerated errors 6, 7 and 8, in disallowing a voir...
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