Favors v. State
| Decision Date | 08 April 1975 |
| Docket Number | No. 29555,29555 |
| Citation | 234 Ga. 80,214 S.E.2d 645 |
| Parties | Joe FAVORS v. The STATE. |
| Court | Georgia Supreme Court |
Greene, Smith & Traver, John W. Hammond, Marietta, for appellant.
George W. Darden, Dist. Atty., Richard L. Moore, Asst. Dist. Atty., Marietta, Arthur K. Bolton, Atty. Gen., Julius C. Daugherty, Jr., Atlanta, for appellee.
Syllabus Opinion by the Court
The appellant, Joe Favors, appeals his conviction for the offense of murder and sentence to life imprisonment.
The record and transcript show that on the evening of November 16, 1973, the appellant shot Eddie Lee Gunn, that Gunn was taken to the hospital, that appellant was arrested early the following day for aggravated battery, that Gunn died on December 7, that a commitment hearing on the charge of murder was held on December 28, 1973, at which appellant's counsel cross examined detective Owens, that appellant was indicted for murder on January 22, 1974, that the indictment listed 13 witnesses, that appellant's counsel made demand for a list of the state's witnesses on February 4 prior to arraignment, that the state furnished such list containing 25 names (12 names in addition to those shown on the indictment) on February 20, that at the call of the case on Thursday, February 21, appellant's motion for continuance based upon the 'late supplying' of the witness list was granted, thereby continuing the case from Monday, February 25, to Wednesday, February 27, and that upon the call of the case on February 27 appellant's objection to trial commencing that day was overruled.
The testimony given at the trial consisted of 7 witnesses for the state and the accused on his own behalf. Six of the 7 state's witnesses were listed on the indictment. The other witness was detective Owens who had testified at the December 28 commitment hearing and whose name was on the February 20 witness list. Of the 7 state's witnesses, 3 were witnesses to the offense, 3 were police officers, and the other was a physician who treated the deceased on the night he was shot. Their testimony showed that the following occurred:
On November 16, 1973, at about 6:30 p.m., Michael Delk went to his common law wife's apartment in Marietta to see his child. Upon his arrival the only persons present were his wife (Melba Hines), her mother, and the child. About an hour later Melba's sister, Rosa Lee Hines, arrived at the apartment with her own baby. Subsequently, the appellant (Favors) and two companions arrived, stayed about 5 or 10 minutes, and left. The victim (Gunn) arrived at about 9:30 p.m. The victim and Delk went out on the back porch to discuss the sale of a .22 caliber pistol that the victim had. Delk took the gun from the victim and at some point placed it in his wife's dresser.
Appellant Favors returned to the apartment. The victim was standing in the kitchen door. Appellant was in the living room. Appellant drew a .38 caliber revolver, pointed it at the victim, said, 'You don't believe Ill shoot you, do you?', and fired the pistol. The bullet struck the victim directly above the left eye, traversed a portion of the brain and exited at the rear of the head. The unconscious victim fell back into the kitchen. Appellant said, 'I'm sorry,' and left.
The police were summoned at about 9:44 p.m. and an ambulance was called to take the victim to the hospital. Detective Owens conducted the investigation at the scence, including conversations with the eyewitnesses, Michael Delk, Rosa Lee Hines, and Melba Hines. He testified that after he had made his initial investigation, and after he had originally left the scene, Delk called him back and handed him a projectile which Delk had found about 2 or 3 feet from where the victim had been shot. During Detective Owens' investigation, he had photographs taken of the kitchen area where the victim was found.
During the trial, the state offered 7 photographs alleged to depict the scene following the incident, and the piece of metal described as a projectile which was found at the scene. The court admitted 3 of the photographs, over objection by the defense, and the piece of metal.
The appellant sought to have admitted into evidence a record of a burglary conviction of one of the eyewitnesses for purposes of impeachment. The state's objection on the ground that the witness had entered a plea under the First Offender's Act was sustained.
The defense called the appellant as a witness. He testified that he had had the pistol for 3 or 4 days, had previously shot it up in the air but had not loaded it himself, this having been done by another person in his presence. He testified further that he did not know the gun was loaded on the night in question, and that the shooting was an accident. At the conclusion of his testimony, the court pointed out that the pistol had not been described as being either a revolver or automatic or what. During the colloquy which followed, the court suggested that the witness could describe it, saying:
The trial court charged the jury as to crimes committed by accident, the presumption of innocence, reasonable doubt, murder (including malice), involuntary manslaughter, negligence, and other matters including unanimity of the verdict.
After about 3 1/2 hours, the jury returned for instructions on the definition of malice. The court recharged the definition of murder, including malice.
After further deliberation of about 2 hours the jury was recalled by the trial court for determination as to how they were numerically divided. The jury foreman indicated that the previous recharge changed the numerical division from 9 to 3 for one verdict to 9 to 3 for another verdict. The court asked if the jury wished clarification of any points of law. The foreman asked for a recharge on the difference between malice with intent and legal malice. The court charged the jury on the definition of murder, including malice. The jury foreman then asked for a charge on involuntary manslaughter and the court so recharged and the jury retired.
The court recalled the jury 45 minutes later, at 11:00 p.m., and instructed the jury as to the desirability of agreement, if possible.
Shortly after midnight, the trial was recessed. The following day, the foreman advised the court that one juror felt it necessary to hear the charge once again. When the court asked 'On what part?', the foreman indicated that the individual juror might speak for himself. The juror asked for the law pertaining to murder and involuntary manslaughter and to malice and intent. The court so recharged and the jury retired.
After about 3 hours, the jury returned to the courtroom. Before receiving the verdict the court inquired of the foreman if the verdict was unanimous, and he replied in the affirmative. The court asked the jury as a whole if they had presented to the foreman the individual verdict of each juror. All twelve jurors indicated affirmatively. The verdict, guilty of murder, was received and read by the clerk. The court stated that under the verdict two penalties were possible, death or life imprisonment, and that since the state was not seeking the death penalty, the sentence was life imprisonment. Defense counsel asked that the jury be polled. The court stated that that had been done when the jury came in. The sentence was reduced to writing that same day.
Article I, Sec. I, Par. V (Code Ann. § 2-105) of our Constitution provides in pertinent part that 'Every person charged with an offense against the laws of this State shall have the privilege and benefit of counsel; shall be furnished, on demand, with a copy of the accusation, and a list of the witnesses on whose testimony the charge against him is founded . . .'
Prior to 1966, Code § 27-1403 provided that 'Every person charged with an offense against the laws shall be furnished, on demand, previously to his arraignment, with a copy of the accusation, and a list of the witnesses on whose testimony the charge against him is founded.' It is noted that this section of the Code added the words 'previously to his arraignment' to the constitutional counterpart.
In 1966, Code § 27-1403 was amended to add the following (Ga.L.1966, pp. 430, 431): 'Without the consent of the defendant, no witness shall be permitted to testify for the State whose name does not appear upon the list of witnesses as furnished to the defendant unless the solicitor or prosecuting attorney shall state in his place that the evidence sought to be presented is newly-discovered evidence which the State was not aware of at the time of its furnishing the defendant with a list of the witnesses.' By this amendment, the General Assembly provided a sanction, to wit: prevention of use of the testimony of an unlisted previously known witness. Cf. Hicks v. State, 232 Ga. 393, 207 S.E.2d 30.
In this case however, defense counsel did not invoke and had little or no opportunity to invoke the sanction. No unlisted witness was called to the stand by the state. Six of the state's witnesses who testified were listed on the indictment. The seventh state's witness, Detective Owens, had been known to defense counsel during the 2 months between commitment hearing and trial.
Rather than relying on the statutory sanction, the defense sought a continuance of the trial. The grant or denial of continuances in criminal cases is governed by different considerations see Code Ann. § 27-2002, subject to the 'benefit of counsel' provision of the Constitution, quoted above, Code Ann. § 2-105. Blackman v. State,...
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