Davis v. State

• Decision Date: 24 January 1979
• Docket Number: No. 34193,34193
• Citation: 252 S.E.2d 443,242 Ga. 901
• Parties: DAVIS v. The STATE.
• Court: Georgia Supreme Court

Page 443

252 S.E.2d 443

242 Ga. 901

DAVIS v. The STATE.

No. 34193.

Supreme Court of Georgia.

Argued Nov. 21, 1978.

Decided Jan. 24, 1979.

[242 Ga. 909] Ted A. Schumacher, Columbus, for appellant.

William F. Lee, Jr., Dist. Atty., Arthur K. Bolton, Atty. Gen., John W. Dunsmore, Jr., Asst. Atty. Gen., for appellee.

BOWLES, Justice.

The appellant, Freddie Davis, was indicted by a Grand Jury in Meriwether County for the January 31, 1977, rape and murder of Frances Coe. He was tried by a jury and found guilty of both offenses. Appellant was sentenced to death for the murder and was given a life sentence for rape.

In Davis v. State, 240 Ga. 763, 243 S.E.2d 12 (1978), appellant's convictions and life sentence for rape were affirmed. Because the court's sentencing instructions failed to make clear to the jury that they could recommend a life sentence even if they found the existence of a statutory aggravating circumstance (Fleming v. State, 240 Ga. 142(7), 240 S.E.2d 37 (1977)); and failed to inform the jury that they were authorized to consider mitigating circumstances in contravention of requirements laid down in Code Ann. §§ 27-2534.1(b) and 27-2534.1(c) (Hawes v. State, 240 Ga. 327(9), 240 S.E.2d 833 (1977)), appellant's sentence of death for the offense of murder was reversed and a new trial ordered on the issue of punishment.

Upon resentencing, the jury found that the murder was committed while the appellant was engaged in the commission of another capital felony, to wit: the rape of Frances Coe, Code Ann. § 27-2534.1(b)(2) and, that the murder was outrageously and wantonly vile, horrible and inhumane in that it involved torture and depravity of mind on the part of the appellant, or an aggravated battery to the victim. Code Ann. § 27-2534.1(b)(7). Based upon these aggravating circumstances, a verdict was returned for the death penalty and appellant was sentenced to death.

This case is here on direct appeal and for mandatory review of the death sentence imposed. Code Ann. § 27-2537. The facts surrounding the murder and rape of Frances Coe are adequately set forth in Davis v. State, supra, and the companion case of co-indictee, Eddie Spraggins (Spraggins v. State, 240 Ga. 759, 243 S.E.2d 20 (1978)), and will be repeated here only as necessary in addressing appellant's enumerations of error.

1. In his first enumeration of error, the appellant contends that the court reporter's failure to transcribe all hearings on motions and all bench conferences held in the case renders the subsequently imposed death sentence unconstitutional.

Prior to trial, appellant filed a "Motion for Complete Recordation of all Proceedings" Recently, in Stephens v. Hopper, 241 Ga. 596(2), 247 S.E.2d 92 (1978), this court held that a court reporter's failure to transcribe the closing arguments of counsel does not automatically require the death penalty to be set aside unless the defendant demonstrates harm or prejudice resulting from the court reporter's failure to transcribe the closing arguments.

which was granted by the trial court. Although appellant argues he did not receive a complete recordation of all proceedings as moved, the transcript reveals that the jury voir dire, opening and closing statements of counsel, testimony of all witnesses in the case, and the court's charge to the jury were fully recorded and transcribed. Further, the record reveals that the only bench conference held was at the close of evidence prior to defendant's presentation of extenuating and mitigating circumstances.

In the present case, although appellant argues that the court reporter's failure to transcribe all hearings on motions and all bench conferences held constitutes reversible error, nowhere in his brief does he point to anything harmful or prejudicial which may have occurred at any of these unrecorded proceedings. Therefore, we find appellant's first enumeration of error to be without merit.

2. Appellant's second enumeration of error contends that the trial court erred in its denial of appellant's motion to remove the trial to a proper courtroom.

This same point was raised by appellant in his previous appeal to this court and found to be without merit. Davis, supra, at Division 2. There is no showing that the resentencing trial was conducted in a manner not befitting a judicial body and, therefore, for the reasons as set out in Davis, supra, we find no error.

3. In enumerations of error numbers three and four appellant contends that the trial court erred in permitting a witness for the prosecution to remain in the courtroom after a timely request for sequestration had been made, and, in refusing to direct that he be called as the state's first witness in the case.

The witness involved was the chief investigating officer. He was familiar with the case and the prosecutor stated in his place that he needed the witness' assistance during the trial. In response to appellant's motion to require the investigating officer to testify as the first witness in the case, the prosecutor stated that the testimony would be out of order if this witness was required to testify first.

Although Code Ann. § 38-1703 provides for the sequestration of witnesses upon motion by a party, a trial court is vested with the discretion to make exceptions to this rule, and unless that discretion has been abused, a trial court's decision will not be reversed by this court on appeal. Disby v. State, 238 Ga. 178(1), 231 S.E.2d 763 (1977); Jarrell v. State, 234 Ga. 410(6), 216 S.E.2d 258 (1975); Fountain v. State, 228 Ga. 306(3), 185 S.E.2d 62 (1971). In McNeal v. State, 228 Ga. 633(4),187 S.E.2d 271 (1975), we found no abuse of discretion in the trial judge allowing an investigating officer to remain in the courtroom and testify after other witnesses in the case.

In the case sub judice, a proper foundation for an exception to the sequestration rule was made and, therefore, we find no abuse of discretion by the trial judge in allowing the investigating officer to remain in the courtroom and in refusing to direct that he be called as the state's first witness.

Appellant's enumerations of error numbers three and four are without merit.

4. In his fifth enumeration of error appellant contends that the trial judge erred in overruling his objection to the admission in evidence of photographs taken at the scene of the crime depicting the victim's wounds.

These same photographs were held to be admissible in appellant's earlier appeal. Davis v. State, supra, 240 Ga. at 766-767, 243 S.E.2d 12. The photographs complained of were relevant and material to show the manner in which the victim had been killed 5. Appellant's sixth enumeration of error contends that the trial court erred in overruling his objection to the admission of statements made by appellant regarding his participation in the murder and rape of the victim.

and raped. Such photographs are admissible. McCorquodale v. State, 233 Ga. 369(5), 211 S.E.2d 577 (1974); Floyd v. State, 233 Ga. 280, 283, 210 S.E.2d 810 (1974); Moore v. State, 240 Ga. 807, 243 S.E.2d 1 (1978).

The appellant made three statements to law enforcement officers. Appellant was not in custody when the first two statements were made. The third statement was made after appellant was arrested and placed in custody.

The first two statements made by the appellant were clearly admissible in evidence as statements made prior to any in-custodial interrogation. Shy v. State, 234 Ga. 816, 218 S.E.2d 599 (1975); Davis v. State, 135 Ga.App. 584(5), 218 S.E.2d 297 (1975). In regard to the third statement, the trial court held a Jackson-Denno hearing to determine its admissibility. At that hearing, G.B.I. agent Davis testified that prior to making his third statement, appellant was advised of his Miranda rights. G.B.I. agent Davis further stated that no threats, promises, coercion or other improper conduct which would void the statement were made. Following his testimony, the trial court ruled that the statement was freely and voluntarily made, and, therefore, admissible.

Unless factual and credibility findings of a trial court in determining the voluntariness of a defendant's statement or confession are shown to be clearly erroneous, those findings must be accepted by this court. Natson v. State, 242 Ga. 618, 250 S.E.2d 420 (1978); Hurt v. State, 239 Ga. 665(2), 238 S.E.2d 542 (1977); Johnson v. State, 233 Ga. 58, 209 S.E.2d 629 (1974).

We have carefully reviewed the evidence submitted to the trial judge in this case and find that his determination was not clearly erroneous. We will not disturb his ruling.

Notwithstanding, appellant argues that his third statement was inadmissible because appellant was not told why he was placed under arrest at the time of his making that statement. The same contention was raised by appellant in his first appeal to this court and found to be without merit because appellant's second statement indicated that he "knew he was under investigation . . . at the time of his arrest and third statement." Davis, 240 Ga. 763, supra, at 766, 243 S.E.2d 12 at 15. For this reason, we find appellant's argument again without merit.

Further, the appellant contends that all of the statements made by him were immaterial and irrelevant as they had no bearing on the sentencing phase of trial. This contention is without merit because in the sentencing phase of trial the jury, in reaching a determination of the sentence to be imposed, is authorized to consider All the facts and circumstances of the case including all statements or confessions made by the appellant.

Appellant's sixth enumeration of error is, therefore, without merit.

6. In his seventh enumeration of error appellant contends that the trial court erred in overruling his motion for mistrial after G.B.I. agent Davis testified that he had arrested the appellant as a result of a conversation with co-indictee Eddie Spraggins.

At trial, the prosecutor asked G.B.I....