Edwards v. State

• Decision Date: 26 June 1991
• Citation: 408 S.E.2d 802,200 Ga.App. 580
• Parties: EDWARDS v. The STATE. A91A0196.
• Court: Georgia Court of Appeals

Page 802

408 S.E.2d 802

200 Ga.App. 580

EDWARDS v. The STATE.

A91A0196.

Court of Appeals of Georgia.

June 26, 1991.

Reconsideration Denied July 23, 1991.

Waycaster, Corn, Murray & Morris, Cynthia N. Johnson, for appellant.

Jack O. Partain III, Dist. Atty., Todd L. Ray, Asst. Dist. Atty., for appellee.

McMURRAY, Presiding Judge.

Defendant was charged in a 76 count indictment with 48 counts of burglary, 24 counts of entering a motor vehicle without authority and with intent to commit a theft therein, two counts of theft by taking, one count of theft by conversion and one count of giving a false name. Defendant pleaded not guilty and moved to sever the offenses for separate trials. An order on the motion to sever was not entered, but a 25 count indictment was entered and it reflects several charges of the original indictment, i.e., entering 24 motor vehicles without authority and with intent to commit a theft therein (Counts 1 through 24) and theft by taking (Count 25). The charges of the 25 count indictment were tried before a jury and defendant was found guilty of entering a van belonging to Clifford Parker (Count 12), entering eight motor vehicles belonging to Edd Kirby Chevrolet Incorporated (Counts 13-19) and theft by taking property belonging to Edd Kirby Chevrolet Incorporated (Count 25). Defendant was found not guilty on the remaining counts of the 25 count indictment. This appeal followed the denial of defendant's motion for new trial. Held:

1. Defendant contends the trial court erred in denying his motion for mistrial after it was discovered that five jurors read a newspaper article which placed defendant's character in issue.

At the beginning of the second day of trial, the following transpired: "[DEFENSE COUNSEL]: Your honor, I have a motion to make.... [W]hen I got home last night I received my copy of the Daily Citizen News, ... and I looked on the left part of the front page, and I noticed 'In the News--Superior Court Begins' And I'd like to read this into the record. 'Among the trials expected this week in Whitfield County Superior Court are cases of two suspected armed robbers plus one man accused of multiple thefts. Assistant District Attorney Kermit McManus said ... [t]he trial of Randy Sherrill [defendant], also known as Randy Edwards, twenty-three, of Dalton is expected to begin today. Edwards is to be tried on multiple theft charges including Theft by Taking and Theft by Receiving. Though charged with more than sixty counts of theft, McManus said Sherrill will only be tried on about half the charges today, with the others to be tried at a later date....'

"Your Honor, I suspect, although I'm not able to prove, that this story was planted on purpose. Apparently the District Attorney's office will sell their soul for a conviction in this case. And I think they're becoming perilously close. This is not the first time I've seen such as this in the paper on the day that court begins or just before. But what we have here is just like an infection. We try to cut it out now for the jury, we may well spread it.... [The article is] not only not factual, to my knowledge [defendant] is not charged with more than sixty counts of theft. He is not charged with even one count of Theft by Receiving here that I know of. And to publish this that he would only be tried on about half the charges today, with the others to be tried at a later date, flies right in the face of all of the efforts that this Court has had, including instructing the District Attorney's office on the prophylactic means to be used on the indictment. Your Honor, I move for a mistrial."

The State's Attorney responded, "Your Honor, I was not aware of the article. I didn't read the paper last night. I didn't see it myself until [defense counsel] mentioned it this morning. We just move that it is not grounds for a mistrial in this case. If there were any curative instructions that the Court would care to give in regard to newspaper articles that may be printed in relation to this case or any other case involving criminal matters, would be fine to cure the record and cure any instance in this case that might be prejudicial to the defendant."

The trial court admonished the office of the District Attorney of the Conasauga Judicial Circuit for commenting on pending criminal cases and summoned the jury, giving instructions and making inquiry as follows: "THE COURT: Good morning, ladies and gentlemen.... I want to ask the jury whether or not any of you read an article or several paragraphs that appeared in yesterday's newspaper. I don't want you to tell me what it was. I just want to have a--and it referred to this case. I want to know if any of you read it? (Whereupon, four jurors indicate by raising their hands.) THE COURT: The Court sees four hands. MALE JUROR: Is that the one that was on the front page that--THE COURT: Yeah. Five. The article was inaccurate in almost every respect. I instruct the jury and particularly those of you who read the article that this defendant is on trial for these charges that have been stated to the jury. He is not on trial for anything else. That article should be given no weight by this jury whatsoever. This case depends upon the evidence that is presented from the witnesses who take the stand and testify and any exhibits that are admitted. You are to consider nothing else in determining whether or not the State carries its burden of proving this defendant guilty beyond a reasonable doubt. Now, I want to know whether you five jurors who have read the article will be able to follow that instruction, ignore that inaccurate article and give it no weight whatsoever in consideration. If you believe you will not be able to do that, I would like to see your hand raised so that I can pursue that further. (No indication from the jurors.) THE COURT: I see no hand raised, and the Court concludes by that that you all will be able to put that out of your minds. I instruct you that you are not to discuss the contents of that article with any other jurors who fortunately did not read it. It should never have been in the paper. The District Attorney's office should have known better than to make any comments, and certainly should not have made any inaccurate comments to the paper. Now, in the future I instruct you that if there are other articles in the paper concerning this case, or if there is anything on the radio or the television, although I can't imagine that there will be, you are not to listen to, read or watch any of those matters. You can save them and when you get through you can read them later if you want to. But don't read them now, because it's not fair to the parties in the case that you be exposed to information that comes to you other than from this witness stand where both sides are present and both sides have an opportunity to cross-examine and examine the witnesses who are giving testimony. Now, after today, if there are future articles, it may be necessary for the Court to again ask you similar questions. And I'm sure that you will all at that time be in a position to say that you have not disobeyed the Court's instructions which I have just given you and that you have not read any such articles. And then we would not need to go further and inquire to make sure that you can put those out of your mind. All right, counsel approach the bench."

The State's alleged misconduct is not an issue, the controlling issue is whether a mistrial was essential to the preservation of defendant's right to a fair trial. Whiteley v. State, 188 Ga.App. 129(1), 131, 372 S.E.2d 296.

" 'The trial court has a broad discretion in passing on motions for mistrial, and its ruling will not be disturbed by the appellate courts unless it appears that there has been a manifest abuse of discretion and that a mistrial is essential to the preservation of the right to a fair trial. Gasaway v. State, 137 Ga.App. 653, 657 (224 SE2d 772); Jones v. State, 128 Ga.App. 885, 886 (198 SE2d 336). Where a motion for mistrial is made on the ground of inadmissible matters being placed before the jury, the corrective measure to be taken by the trial court also is largely a matter of discretion, and where proper corrective measures are taken and there is no abuse of that discretion, the refusal to grant...