Collier v. State
| Citation | 261 S.E.2d 364,244 Ga. 553 |
| Decision Date | 30 October 1979 |
| Docket Number | No. 35063,35063 |
| Parties | COLLIER v. The STATE. |
| Court | Supreme Court of Georgia |
J. Donald Bennett, James A. Secord, Rossville, Alston, Miller & Gaines, Jay D. Bennett, Atlanta, for appellant.
William M. Campbell, Dist. Atty., Arthur K. Bolton, Atty. Gen., Nicholas G. Dumich, Asst. Atty. Gen., for appellee.
Robert Lewis Collier appeals his conviction and sentence for the offense of murder, and appeals his convictions for aggravated assault and three counts of armed robbery.
From the evidence presented at trial, the jury was authorized to find the following facts:
On April 14, 1978, the appellant, an unemployed ironworker, left his home in South Pittsburgh, Tennessee and drove toward Georgia. He carried with him a brown paper grocery sack and a .32 caliber revolver. His express purpose for making the trip was to perpetrate an armed robbery, although he did not have a specific victim in mind.
When appellant arrived at Fort Oglethorpe, Georgia, he parked his car in a shopping center a short distance from the Plain and Fancy Florist and Bakery. He left his car, taking with him the grocery sack containing the revolver. Upon entering the florist shop, appellant approached Nancy Alonso, an employee, and asked her the price of one dozen roses. As she began to tell him the price, he pulled his revolver from the sack, pointed it at her, and said "Let's go." Appellant took her behind the counter where two other female employees were working and announced that he wanted their money. At that time appellant noticed that a fourth person, the owner of the shop, was in the store's kitchen. He had one of the other employees call her to the front of the store. Appellant made two employees, Pat Higdon and Gladys Amos, put the money they had in their purses in the sack that he was carrying. He then forced the owner to give him the money in the cash drawer. The women were forced to lie face down while appellant left the store. He then walked back to his automobile and left the shopping center, driving toward Chattanooga, Tennessee at a normal rate of speed.
Within minutes of the robbery, the Catoosa County Sheriff's Department in Ringgold, Georgia was notified. Sheriff's Investigator George Brown, who was in the sheriff's office at the time, responded to the call and began to drive to the scene. Deputy Sheriff Baxter Shavers, who was at a different location, also responded and likewise drove to the scene. While driving to Fort Oglethorpe, Investigator Brown received a description of the robber and the car he was driving from a radio broadcast. Still enroute but approximately five miles from the scene of the crime, Investigator Brown saw a car and driver matching the description. The car came from the direction of the shopping center where the crime occurred. The investigator turned his car around and gave chase. When the appellant saw the blue lights, he stopped his car. He stepped out of the car with his wallet in his hand and started to walk back toward the investigator. Investigator Brown drew his gun but held it at his side and instructed the appellant to put his hands on his car and "spread eagle." Appellant complied. About this time the investigator noticed that Deputy Baxter Shavers had arrived and was approaching them with his gun drawn. Investigator Brown put his gun away and began to "pat down" the appellant. Deputy Shavers approached the appellant and began looking into his car.
Investigator Brown was at the point of "patting down" one of the appellant's legs, when the appellant grabbed for Deputy Shavers' gun and took it away from him. The appellant, who weighed over 300 pounds, threw Investigator Brown off of him and fired two shots as the investigator was attempting to draw his gun. One shot hit the investigator in the hip and he fell face down on the pavement.
Deputy Shavers, who was then unarmed, ran back toward his car. Appellant shot once at the fleeing officer, killing him instantly. Thereafter, he continued to fire at the officer as he was lying on the road. Although Deputy Shavers did not receive more than one direct hit, he did sustain multiple wounds from fragments of bullets that broke apart upon impact with the roadway. The officer's pistol had all six rounds expended when it was recovered.
Thereafter, appellant returned to his car and began to leave. Investigator Brown rolled away from the appellant's car, fearing he would be run over. Brown recovered his weapon and fired six shots into appellant's automobile as he drove away.
Appellant drove back to his house in South Pittsburgh, Tennessee. On the way back he threw the officer's gun out of the car as well as the grocery bag and some of his clothing. These items were subsequently recovered.
After he arrived at his house, appellant took his wife and two children and fled to Alabama. After staying overnight, he attempted to return the next afternoon to his home in Tennessee. By this time a lookout had been placed on appellant's automobile. As he entered South Pittsburgh, local authorities received a report from Alabama authorities that a car matching the description of the one used in the robbery was entering their jurisdiction. Before he could reach his home, the Tennessee authorities spotted the appellant's car and gave chase. Appellant attempted to elude them by passing traffic on the shoulder of the road but was eventually forced to stop the car.
Appellant was arrested, placed in a patrol car and given his constitutional rights. He was thereafter transported to the local jail. Within approximately one hour after his arrest, appellant gave a statement to a Tennessee State Trooper, implicating himself in the crimes. Appellant then requested by name an attorney who had represented him before. The attorney came to the jail and conferred with appellant regarding the case. Appellant was placed in a lineup, while his attorney was present, and was identified as the man who perpetrated the robbery and murder. Thereafter, over his attorney's advice but with his attorney present, and after signing a waiver of rights, he gave a complete confession to the authorities. Appellant waived extradition and was returned to Georgia.
1. Darlene Hurt, a witness for the state, observed the appellant as he got out of his car in the parking lot of the shopping center prior to the robbery at the florist shop. She gave a physical description of the person and the car. These were given to the local law enforcement authorities immediately after the robbery.
The day after the robbery and murder, but prior to appellant's capture, Darlene Hurt was taken to Dalton, Georgia and was hypnotized by a psychiatrist, Dr. Biggers. Law enforcement authorities requested such a procedure in the hopes of enhancing the witness's memory and thereby enabling them to apprehend the suspect. Prior to the completion of the questioning under hypnosis, the appellant was apprehended. An attempt had been made to hypnotize Investigator Brown for the same purpose but due to the pain of his injury, it was unsuccessful.
On his own motion the trial judge issued an order which, under pain of contempt, directed that no evidence of hypnotism or the use of hypnotic trances was to be mentioned by counsel for the defendant, counsel for the state, or any person called upon to testify as a witness; that no evidence obtained by the from any witness under the influence of hypnosis was to be admissible; and that defense counsel could not cross examine any witness to test his credibility by making any inquiry as to hypnosis.
Appellant objected to the court's order, and in a pretrial hearing appellant made the following offer of proof: "For the record, but for the court's ruling prohibiting our cross-examination of the witness on hypnosis, and introducing any evidence about hypnosis, we would have called Dr. Biggers, in addition to cross-examining various of the State's witnesses.
"Dr. Biggers informed me over the phone that he made an attempt to hypnotize several of the State's witnesses, and several of them may very well have been hypnotized, even if the witnesses themselves thought that they were not hypnotized, that they themselves could know whether they were hypnotized or not, and he further stated that there was a tremendous potential for abuse while a person is in a hypnotic trance, particularly when the questioning is not done by a medical doctor, and even then, the person is in a state of susceptibility, or suggestion, so that after the effort to hypnotize a witness, a witness may seriously and honestly believe that they witnessed events which they did not witness at all, suggestions which were merely planted there by the suggestion of hypnosis and in this particular case, several of the prosecution witnesses, including, but not limited to Deputy Brown, attempts were made to hypnotize them, and they were questioned by other law enforcement officers, other than Dr. Biggers."
Appellant enumerates as error the trial court's issuance of the order. The reliability of hypnosis has not been established. Therefore, statements made by one under hypnosis are inadmissible, and by pretrial order the trial judge may prevent the introduction of such statements. Alderman v. State, 241 Ga. 496, 246 S.E.2d 642 (1978). In this case, however, the trial court went further and prevented the cross examination of witnesses regarding their being subjected to hypnosis. Such an order is overly broad. Emmett v. State, 232 Ga. 110, 205 S.E.2d 231 (1974); Creamer v. State, 232 Ga. 136, 205 S.E.2d 240 (1974). At the conclusion of the district attorney's examination of the state's first witness, Darlene Hurt, the trial court rescinded its order and allowed cross examination as to hypnosis for the purpose of testing the witness's credibility or the credibility of any...
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