Emmett v. State
| Decision Date | 24 April 1979 |
| Docket Number | No. 34698,34698 |
| Citation | 243 Ga. 550,255 S.E.2d 23 |
| Parties | EMMETT v. The STATE. |
| Court | Georgia Supreme Court |
W. Allan Myers, Gainesville, for appellant.
Jeff C. Wayne, Dist. Atty., Arthur K. Bolton, Atty. Gen., Nicholas G. Dumich, Sp. Asst. Atty. Gen., for appellee.
Emmett appeals his July, 1978 conviction and life sentence for the 1973 murder of his wife.
Emmett worked the 4:00 p. m. to midnight shift at a mill, and lived with Wynelle, his wife of 12 years, and their young son Michael. The state's evidence tended to show that on the night of August 20-21, 1973, Mrs. Ayers, Wynelle's half-sister, received three telephone calls from Emmett, beginning at approximately 12:35 a. m. He stated in the first call that Wynelle was sick, he could not wake her and he found blood on her pillow. He asked Mrs. Ayers to summon an ambulance. In the second call he stated he had found a screen door cut and his gun missing, and it appeared someone had broken in. The third call reported that the ambulance had arrived and Wynelle was dead. When the sheriff arrived Emmett reported to him that someone had broken into the house and killed his wife.
The house was in good order except that the victim's underpants were lying at the foot of her bed, the missing .22 calibre rifle was under her bed, and some wet paper towels lay on the kitchen floor. The screen door appeared to have been cut from the Inside. A spent .22 calibre cartridge shell was found on the floor. The cause of death was a single gunshot wound to the back of the head. The victim was found lying on her back in bed, with her hair in curlers, her nightgown pulled up chest high, naked from the waist down, with legs spread apart. The medical evidence indicated fairly recent sexual intercourse though the time could not be fixed.
The medical evidence showed that death probably occurred between 11:00 p. m. and 12:00 midnight, August 20. Emmett testified that he left the mill at 12:04 a. m. (August 21) after his work shift and arrived home at 12:25 a. m. He drove a white Chevrolet pick-up truck, which was at the home when officers arrived. Patrolman Hulsey testified that earlier in the evening he had seen a white Chevrolet pick-up proceeding toward Emmett's house at 11:40 or 11:45 p. m. that evening, though upon sighting the officers the driver of the pick-up changed directions.
Emmett was arrested for the murder. Detective Carter testified that while Emmett was in custody, he told Carter that he had been feeling frustrated because of his wife's refusal of or interruption of sexual relations, and that "he did not know if he killed her or not, but did not think he did."
The grand jury failed to indict Emmett, and he resumed living with his son Michael, 5 years old. For a time they resided at the home of Mrs. Bruce. Mrs. Bruce testified that once as Emmett left the house, he told Mrs. Bruce and her former husband to question Michael as to who killed his mother. When Emmett returned he asked Michael if he had told them who killed his mother, and in the presence of Mrs. Bruce and Mr. Armour, Michael replied that he had not; that Emmett should tell them because he (Emmett) had killed her. Mrs. Bruce testified that Emmett made no response in her hearing, but that she felt upset and left the room soon after. Mr. Armour also testified to this conversation, and said that Emmett
Emmett testified that Michael had begun to show mental disturbances after Emmett was released from jail, and had been placed under psychiatric care. Mr. Armour testified that he disbelieved Michael "because he was little and his mind ain't right."
1. Emmett alleged error in the trial court's admitting testimony concerning the conversation with Michael. The evidence was admitted under Code Ann. § 38-409: "Acquiescence or silence, when the circumstances require an answer or denial or other conduct, may amount to an admission." Emmett argues that since the issue is whether a response by him was necessitated by the child's comment, there should have been some preliminary determination of Michael's competency. He argues that his confrontation rights were denied.
Emmett's arguments are not persuasive. The competence of the child as a witness is not involved, because the child was not a witness. What is admitted as evidence is not the child's accusation but the failure of Emmett to respond. Cf. Perry v. State, 78 Ga.App. 273, 275, 50 S.E.2d 709 (1948) () Further, it is for the jury to decide whether under the circumstances, including the child's youth and possible psychiatric difficulties, any answer or denial or other conduct was required, and whether silence in those circumstances amounted to an admission. Byrd v. State, 78 Ga.App. 824, 831, 52 S.E.2d 330 (1949); Perry, supra, 78 Ga.App. at 275-276, 50 S.E.2d 709.
We 1 think it important to reconcile this decision with our recent cases considering Doyle v. Ohio, 426 U.S. 610, 96 S.Ct. 2240, 49 L.Ed.2d 91 (1976).
It has long been Georgia law that an accused who is taken into custody cannot be presumed to acknowledge guilt just because he does not deny the charges. Howard v. State, 237 Ga. 471, 228 S.E.2d 860 (1976); Rosborough v. State, 209 Ga. 362, 72 S.E.2d 717 (1952); Graham v. State, 118 Ga. 807, 45 S.E. 616 (1903); Johnson v. State, 151 Ga. 21, 25, 105 S.E. 603 (1921). This was also the thrust of Doyle. As we implicitly recognized in our recent decision in Howard v. State, supra, the rationale of Doyle is that "every post-arrest silence is insolubly ambiguous . . . ." 426 U.S. at 617, 96 S.Ct. at 2244. See also Id., n. 8. Accordingly, we were careful in Howard to phrase the ruling this way: " . . . in view of Miranda, police interrogation is not such a circumstance as requires an answer or denial so as to authorize charging Code § 38-409 in a criminal case." 237 Ga. at 475, 228 S.E.2d at 863. Howard overruled Division 2 of Bennett v. State, 231 Ga. 458, 202 S.E.2d 99 (1973), which was in fact a police interrogation case.
But we do not have here a case of post-arrest silence or police interrogation, with which Doyle and Howard dealt exclusively. Instead, this is "silence by a person not in custody accused of a crime by a citizen," Howard, supra, 237 Ga. at 474, n. 2, 228 S.E.2d at 862 n. 2, which we have recognized as presenting a totally different situation. Id. The rationale of Doyle and Howard are totally inapplicable here.
Though we have not directly confronted this question after Doyle, other courts have. We rule that the trial court did not err in admitting this testimony. Bloodworth v. State, 216 Ga. 572, 573, 118 S.E.2d 374 (1961). Accord, State v. Calhoun, 115 Ariz. 115, 563 P.2d 914, 917 (1977); State v. Osborne, 50 Ohio St.2d 211, 364 N.E.2d 216 (1977), Death sentence vacated and remanded under Lockett v. Ohio, 438 U.S. 586, 98 S.Ct. 2954, 57 L.Ed.2d 973, 438 U.S. 911, 98 S.Ct. 3137, 57 L.Ed.2d 1157 (1978). Cf., Lofton v. State, 83 Wis.2d 472, 266 N.W.2d 576, 582 (1978).
2. The trial court did not err in admitting into evidence over objection State's Exhibits 2 and 3, which were photographs of the victim's body exactly as she was found after death. Godfrey v. State, 243 Ga. 302, 253 S.E.2d 710 (1979); Edwards v. State, 233 Ga. 625, 212 S.E.2d 802 (1975). The photographs were relevant to the issues in the case, including motive.
3. At some time between the 1973 murder and the 1978 trial, most items of physical evidence, including the alleged murder weapon and the victim's nightgown, were lost and accordingly could not be produced by the state in response to Emmett's motion to produce. Emmett makes no contention that the prosecutor failed to make a good faith effort to produce the items. Emmett was given access to the reports of the State Crime Lab concerning the items and talked to the witnesses who had conducted tests upon them.
At the hearing on his motion, he argued in effect that the state could not try him for this crime without producing the actual items of physical evidence, because under Patterson v. State, 238 Ga. 204, 232 S.E.2d 233 (1977) he was entitled to have persons of his own choosing examine the evidence in order properly to prepare his defense. He makes, however, no claim that any of these items could exculpate him.
In Patterson, A drug case, we wrote that 238 Ga. at 206, 232 S.E.2d at 234. We have subsequently ruled that Patterson does not apply to criminal evidence generally. Moore v. State, 240 Ga. 807, 814, 243 S.E.2d 1 (1978). Thus, the case cited by Emmett does not support him and no error has been shown in the trial court's ruling that trial could proceed without these items of physical evidence. See Partain v. State, 238 Ga. 207, 232 S.E.2d 46 (1976).
Review of the transcript shows that Emmett subsequently waived his initial request...
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