Cross v. State

• Decision Date: 16 October 1975
• Docket Number: Nos. 50772,50773,No. 2,s. 50772,2
• Citation: 136 Ga.App. 400,221 S.E.2d 615
• Parties: W. H. CROSS v. The STATE (two cases)
• Court: Georgia Court of Appeals

Page 615

221 S.E.2d 615

136 Ga.App. 400

W. H. CROSS v. The STATE (two cases).

Nos. 50772, 50773.

Court of Appeals of Georgia, Division No. 2.

Oct. 16, 1975.

Rehearing Denied Nov. 4, 1975.

Hendon, Egerton, Harrison & Glean, E. T. Hendon, Jr., Decatur, for appellant.

Richard Bell, Dist. Atty., Alton G. Hartley, Asst. Dist. Atty., Decatur, for appellee.

PANNELL, Presiding Judge.

Appellant was indicted and charged with the offense of bribery of a police Detective, Robert W. Young. He admitted the acts charged and pleaded entrapment as a defense. He was convicted and sentenced to five years. His appeal from the conviction is before this court for a review of numerous enumerations of error, as well as an appeal from the overruling of his extraordinary motion for new trial.

A short time prior to the occurrence under investigation the appellant gave four $50 bills to his codefendant, Harold Johnson, and told Johnson to give them to Sgt. Wendell McGlamory of the DeKalb County Police Department as a belated Christmas present. McGlamory told Johnson to tell the appellant to take the money back and 'cram it.' On January 26, 1972, a telephone conversation was had between Johnson and Detective Young and a meeting was set up at a designated location. This conversation between Young and Johnson was intercepted and taped. Detective Young, equipped with a microphone and radio, went to the meeting place where he was introduced to the appellant, and after some discussion the following took place according to Detective Young, quoting appellant: "How about let's making a deal, I'll give you $200 now, $200 on the 25th of each month, and if you give me information concerning a known figure I'll get you a bonus, or a piece of pie from him, and I'll handle that.' He then took $200 . . . two $100 bills out of his right pants pocket and gave them to me.' This conversation was also taped by two police officers a short distance from the scene. These are the tapes involved in the motion to suppress, which was overruled. There was nothing in the taped conversations that indicated any entrapment. The claim of entrapment was based upon testimony which tended to show the police officers McGlamery and Young were, through others importuning and inviting Cross to pay the money for protection and information as to raids, etc. Held:

1. All questions relating to the suppression of certain tapes and testimony and evidence relating thereto were decided adversely to the appellant on his prior appeal. Cross v. State, 128 Ga.App. 837, 198 S.E.2d 338. See also Cross v. State, 233 Ga. 960, 214 S.E.2d 374 transferring the present appeal to this court from the Supreme Court. The constitutional attack upon Code § 26-3006 was disposed of adversely to the appellant in the same case. (Enumeration of errors Nos. 1, 6, 28 and 29).

2. There was no error in overruling the appellant's motion for acquittal based on his denial of a speedy trial. No demand for trial was filed under the provisions of Code § 27-1901. Most of the delay, if it be properly called such, was occasioned by the acts of the defendant in requesting continuances and a prior appeal to this court on the overruling of a motion to suppress evidence. This enumeration of error is controlled adversely to the appellant by the decisions of the Supreme Court of this State in Hughes v. State, 228 Ga. 593, 187 S.E.2d 135. See also Johnson v. Smith, 227 Ga. 611, 182 S.E.2d 101. (Enumeration of errors No. 3).

3. There was no error in overruling the defendant's motion for a judgment of acquittal based upon the failure of the State's two main witnesses to comply with the consent order of the court directing and ordering them to undergo polygraph and truth serum (sodium pentothal) examinations. Nor was there error on the part of the court in vacating such order after the State's two main witnesses had refused to take the test. In our opinion, neither of these tests would have been admissible in evidence, and if admitted in evidence it would have had no probative value. See Famber v. State, 134 Ga.App. 112, 213 S.E.2d 525. If error, no harmful error is shown. The only harm asserted by the defendant is that he submitted certain questions to be asked in the test which disclosed the nature of the defendant's defense. If this was harmful to the defendant he could not complain as he initiated the proposed test taking and voluntarily submitted the questions. The refusal of the officers to take the test was based upon the requirement that they sign a release from liability in the event they sustained any injuries as a result of the truth serum tests. (Enumeration of errors Nos. 4 and 5).

4. Appellant complains of the failure to grant three motions for mistrial and of the charge of the court to the jury after overruling one of the motions. On the first occasion the State's witness, W. C. McGlamory was testifying on cross-examination by appellant's counsel and was asked the following question: 'Q. Now, you knew Bill Cross (appellant) well enough to point him out in that restaurant, didn't you? You had seen him before that time? A. Well as well as I would know any other criminal element by photograph, yes sir.' Upon objection made, the court instructed the jury to disregard the statement made and any implication made by the statement, and ascertained from the jury that there was no question as to his instructions. There was no error in his instructions to the jury.

Ordinarily, when illegal testimony is placed in evidence, it is not an abuse of discretion to refuse to grant a mistrial if sufficient corrective instructions are given in ruling the testimony out. Worthy v. State, 184 Ga. 402(3), 191 S.E. 457; Stanford v. State, 201 Ga. 173, 186, 38 S.E.2d 823; Fitzgerald v. State, 82 Ga.App. 521, 525, 61 S.E.2d 666. This is true even if the illegal testimony has the effect of placing the defendant's character in issue (Carrigan v. State, 206 Ga. 707(3), 58 S.E.2d 407; Eden v. State, 43 Ga.App. 414, 159 S.E. 134; Osteen v. State, 83 Ga.App. 378, 381, 63 S.E.2d 692), especially when the testimony is volunteered by the witness and not directly elicited by the solicitor. Britten v. State, 221 Ga. 97, 102, 143 S.E.2d 176; Waldrop v. State, 221 Ga. 319, 322, 144 S.E.2d 372; Bedgood v. State, 100 Ga.App. 736, 741, 112 S.E.2d 430.

The second instance occurred when a defense witness, a former prosecuting attorney, was being questioned on direct examination by appellant's counsel. He needed a file to refresh his recollection and had testified that he made certain notes personally, which were placed in the file. The following occurred: 'Q. What did you do at that time after having refreshed your memory? A. I advised Bill Crecelius' secretary at 3:15 PM on Friday, February 4, of the existence of a tape recording in the case. I indicated I would make it available to him on Monday, the 7th of February if he desired. I have also indicated on my bond set in this case, that there was a revocation.' A motion for mistrial was made at this point. The court overruled the motion and no instructions to the jury were given and none requested. There was no intimation from the evidence as to what the word 'revocation' referred to. There is nothing indicating it was in reference to the revocation of a probation sentence of the defendant-appellant any more than it could have been in reference to the revocation of his bond in the present case.

In the third situation, the police chief was being questioned by the prosecuting attorney and he was asked the following question and gave the following portion of an answer, at which point objection was made and a motion for mistrial was made: 'Q. Did Mr. McClamory report to you prior attempts of Mr. Cross (appellant) to bribe him? A. Mr. Bell, as best I recall . . .' The trial judge overruled the motion on the basis that there had been prior testimony relating to such an attempt to bribe (which was true) and instructed the jury to disregard the question by the district attorney. No answer was ever given to the question. The motion was renewed after the instructions to the jury. We find no error in the overruling of any of the motions. (Enumeration of errors 12, 13, 39 and 45).

5. Complaint is made as to the refusal of the trial judge to permit State witnesses McGlamory and Young to be cross-examined in reference to whether the witnesses gave one Glalock (claimed by the defendant to be one who participated in his claimed entrapment some contraband pills seized in a raid, and in not permitting McGlamory to answer as to whether he had knowledge a mattress was in a back room where McClamory had worked after the witness had testified he knew nothing about girls being entertained there. Appellant contends this evidence was admissible on his plea of entrapment and that he was entitled to inquire into the state of feelings of the witnesses and as to their relationship to Blalock. Under Code § 38-1712, which provides: 'The state of the witness' feelings to the parties, and his relationship, may always be proved for the consideration of the jury.' This Code Section is clearly inapplicable. Blalock is not a party to the case. Neither does the proffered evidence tend in any way to show entrapment of the defendant to commit the offense with which he is charged. Further, the trial judge allowed extensive cross-examination of these two witnesses' relationship to Blalock. See in this connection Western & Atlantic R.R. v. Burnett, admx., 79 Ga.App. 530, 532, 54 S.E.2d 357. (Enumeration of errors Nos. 7, 8, 27).

6. Error is enumerated on a number of instances where the trial court sustained objections to questions asked the two chief witnesses for the State, McGlamory and Young, seeking to prove they had committed crimes involving moral turpitude, or lesser crimes, or had associated with known criminals or prostitutes; as well as the sustaining of objections to an offer of proof by defense witnesses that...