Dunn v. State, 39851
| Decision Date | 05 December 1983 |
| Docket Number | No. 39851,39851 |
| Citation | 309 S.E.2d 370,251 Ga. 731 |
| Parties | Lonnie Carlton DUNN v. STATE. |
| Court | Georgia Supreme Court |
Bobby Lee Cook, Summerville, J. Dunham McAllister, Jonesboro, for Lonnie Carlton Dunn.
Robert E. Keller, Dist. Atty., William L. MicKinnon, Asst. Dist. Atty., Jonesboro, Michael J. Bowers, Atty. Gen., William B. Hill, Jr., Sr. Asst. Atty. Gen., for the State.
Lonnie Carlton Dunn was convicted of the murder of Robert Allen Covey and sentenced to life imprisonment. He now appeals the denial of his motion for a new trial.
The evidence presented at trial showed that during the early morning hours of December 24, 1981, appellant's wife, Toni Marie Dunn, arrived at their house in an hysterical state. Ms. Dunn told appellant that she had been abducted and molested by two white males in a small black car at Southlake Mall in Morrow, Georgia. After hearing his wife's account, appellant got his .12 gauge shotgun, jumped into his pickup truck and proceeded toward the Mall.
When appellant arrived at the Mall, he saw a black Pontiac Trans Am with two white males inside. Appellant cut his truck in front of the Trans Am, got out of his truck with shotgun in hand and ordered the two out of the automobile. While appellant held the shotgun on the driver, Covey, the firearm discharged striking Covey in the chest and shoulder area. Robert Allen Covey died as a result of his wounds.
After the shooting, appellant fled the scene and threw the shotgun away in some nearby woods. The next day he surrendered himself to Clayton County Police. Appellant gave an oral statement as to what happened and was placed under arrest. It was subsequently discovered that appellant's wife had lied about being abducted and molested. Appellant was indicted in two alternative counts, one for malice murder and one for felony murder.
1. Appellant enumerates as error a restriction placed on his right to pose a particular question to a prospective juror during voir dire. Defense counsel asked the juror the following question: "Do you belong to any fraternal organizations, have any hobbies?" The transcript as originally furnished to this court indicated there was an objection by the State before the prospective juror gave an answer. A colloquy followed ultimately resulting in the trial judge sustaining the State's objection. The right to inquire as to a prospective juror's connections with fraternal organizations is expressly given by statute, OCGA § 15-12-133 (Code Ann. § 59-705). It is error not to permit counsel to ask such a question. However, the transcript of the voir dire has now been supplemented and shows that the juror answered counsel's question in the negative before the objection was made. We find no harmful error.
2. In his second enumeration of error, appellant contends the trial court erred in admitting into evidence the death certificate.
Appellant argues the death certificate should have been excluded because the prosecution failed to furnish him a copy of the certificate prior to trial after a timely motion for scientific reports. OCGA § 17-7-211 (Code Ann. § 27-1303). Appellant filed a discovery motion requesting to have disclosed and produced "the results of reports of any scientific or other tests, analysis, experiments, or studies made in connection with the instant case, or copies of these reports."
"A pleading to constitute a request for discovery under § 27-1303 [§ 17-7-211] should give the State reasonable notice that the defense desires the disclosure of all available scientific reports no later than 10 days before trial; this notice would be adequate if the defense specifically refers to § 27-1303 [§ 17-7-211] or if it makes clear that scientific reports, whether inculpatory or exculpatory, should be furnished prior to the 10 day limit." State v. Meminger, 249 Ga. 561, 563, 292 S.E.2d 681 (1982). (Emphasis supplied).
Appellant's discovery motion failed to invoke the provisions of OCGA § 17-7-211 (Code Ann. § 27-1303). Therefore, this statute would not provide a basis for exclusion of the death certificate. 1
Appellant also contends the death certificate should have been excluded because the word "Homicide" is typed in the box marked, cause of death.
Homicide is the act of a human being in taking away the life of another human being. Black's Law Dictionary, 5th Edition, 1979; Sanders v. State, 113 Ga. 267, 270, 38 S.E. 841 (1901). It was undisputed in this case that a homicide had occurred. The issue was the intent of the defendant. King v. State, 151 Ga.App. 762, 763, 261 S.E.2d 485 (1979). The word "Homicide" was nothing more than an indication of the immediate agency of death. We find no merit in this enumeration of error.
3. In his next enumeration of error appellant contends the trial court erred in restricting his right to a thorough and sifting cross-examination of the investigating officer, Detective Jones.
In the first instance cited by appellant he was not allowed to ask Detective Jones if he knew what the trigger pull on the weapon was. The transcript indicates the witness had no first hand knowledge of the force required to pull the trigger of the weapon involved in this case. He conducted no test to measure the force. The witness was allowed to testify that in comparison with other weapons, the trigger pull of this weapon was average. We find no error in this instance.
The second example cited by appellant deals with an effort by defense counsel to have the witness give his conclusion as to what appellant intended when the victim was shot. The right to a thorough and sifting cross-examination is not abridged where the question propounded calls for a conclusion by the witness. Proctor v. State, 235 Ga. 720, 725, 221 S.E.2d 556 (1975). The trial court properly sustained the objection.
We find no merit in this enumeration of error.
4. In his next enumeration appellant contends the trial court erred in failing to grant a mistrial after a State's witness stated appellant had an arrest record. The investigating officer, in a long and unresponsive answer to a question put by the district attorney, stated that another police officer told him that the officer believed appellant had an arrest record in Clayton County. Appellant immediately objected and after having the jury excused, moved for a mistrial. The trial court denied the motion for a mistrial but instructed the jury to disregard the answer in its entirety. Also, the jury was specifically polled by the trial court to determine whether any juror could not...
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