Ford v. State, 28771
| Decision Date | 10 July 1974 |
| Docket Number | No. 28771,28771 |
| Citation | 207 S.E.2d 494,232 Ga. 511 |
| Parties | Joseph Anderson FORD v. The STATE. |
| Court | Georgia Supreme Court |
Syllabus by the Court
1. It was not error to disqualify jurors who would not under any circumstances impose the death penalty.
2. The appellant was not harmed by being brought before the commitment court in the absence of his counsel, for the purpose of continuing the commitment hearing.
3. There was no error in refusing to direct a verdict of acquittal on the contention that the state had not proved the chain of possession of the weapon and missile alleged to have been used in the homicide.
4. It was not an abuse of discretion to allow the state to reopen its case after the close of its evidence.
5. The denial of the appellant's motion to suppress identification evidence was not harmful to him, since it was not introduced on the trial.
6. The testimony of a witness, unresponsive to the question asked him, was not harmful to the appellant, and will not require the grant of a new trial.
7. A witness who participated in the crime only by assisting the appellant to sell the homicide weapon, after the commission of the homicide, is not an accomplice within the meaning of Code § 38-121.
8. It is not error to direct a sentence of life imprisonment, since the evidence did not show any aggravating circumstance authorizing the death penalty.
9. It was not error to refuse the request of appellant's counsel to be allowed to make and discuss his objection to the qualification of the jurors as to the death penalty in the absence of the jurors.
10. There was no abuse of discretion in allowing the district attorney to ask one of the state's witnesses a leading question.
11. There is no merit in the contention as to allowing witnesses to testify whose names were not on the list furnished the appellant, since the record does not show that any such witness was permitted to testify over this objection.
12. It is not cause for reversal of the appellant's conviction that the trial judge charged Code Ann. § 26-902 on justifiable homicide in its entirety.
13. It was not error to refuse to give a requested charge on reasonable doubt, since the trial judge's charge fully and fairly covered this subject.
14. The inadvertent, fragmentary charge on the punishment for involuntary manslaughter, given prior to the jury's deliberation on the question of guilt or innocence, was not harmful to the appellant.
15. A complaint as to the allowance of certain photographs in evidence can not be considered since they are not in the record.
16. The jury was authorized to find from the evidence that the homicide was murder.
Thomas L. Murphy, Atlanta, for appellant.
Lewis R. Slaton, Dist. Atty., Joel M. Feldman, Isaac Jenrette, William M. Weller, Joseph J. Drolet, Atlanta, for appellee.
Joseph Anderson Ford was convicted in the Superior Court of Fulton County for the murder of Charlie Crockett, and sentenced to life imprisonment. He appeals from his conviction and sentence. Enumerated as error are the overruling of his motion for new trial on all of its grounds, including the ground that the state failed to prove his guilt beyond a reasonable doubt.
1. The first error enumerated is that the trial court erred in allowing the state, over objection, to qualify prospective jurors as to the death penalty without first making some showing or giving notice to the appellant of the state's contentions as to any aggravating circumstances as set out in Code Ann. § 27-2534.1 (Ga.L.1973, pp. 159, 163) authorizing the death penalty.
The appellant argues that, unless the state gives notice prior to trial as to one or more of the statutory aggravating circumstances authorizing the death penalty listed in Code Ann. § 27-2534.1 (Ga.L.1973, pp. 159, 163), the state would not be able to introduce or argue evidence of aggravating circumstances; that this would have the effect of making the case one in which the death penalty could not be imposed, and therefore one in which jurors could not be disqualified because of opposition to capital punishment.
The premise on which this argument is based has already been adjudicated by this court contrary to the contentions of the appellant.
In Eberheart v. State, 232 Ga. 247(6), 206 S.E.2d 12, we considered a contention that the sentence of death was invalid because the district attorney did not submit any aggravating circumstances in evidence during the sentence stage of the trial. This court held:
The prosecuting attorney can not know with certainty what the witnesses may disclose on the trial. The fact that he waives any consideration of the death penalty at the conclusion of the trial is not proof that he acted in bad faith in disqualifying prospective jurors who were opposed to capital punishment.
There is no merit in this contention.
2. The second error enumerated is the denial of the appellant's motion to quash the indictment, based upon the fact that the appellant was brought before the commitment court for the purpose of getting a continuance of the commitment hearing without the assistance of his counsel, even though counsel's presence was requested.
The record shows that the appellant's counsel was present when the commitment hearing was later held.
There is nothing in the record to indicate that anything transpired at the time the continuance was granted, for the further investigation of the case, which was detrimental to the appellant's case, or that any injury resulted to him by reason of the absence of his counsel at that time.
The error in taking the appellant before the commitment court for the purpose of continuing the commitment hearing, without his counsel, was harmless.
3. In the third enumerated error the appellant asserts that the trial court erred in refusing to grant his motion for directed verdict because the state did not prove the chain of possession of the weapon and missile alleged to have been used in the homicide.
This complaint is not valid.
The state's case was not dependent on the introduction in evidence of the weapon and missile.
Regardless of whether or not there was proper proof of the chain of possession to admit these items in evidence, there was no error in refusing to direct a verdict of acquittal on this ground.
4. Enumerated error 4 contends that the trial court abused its discretion in allowing the state to reopen its case after the close of its evidence, over the objection of the appellant.
After the motion referred to in Division 3 of this opinion, in which the appellant contended that the chain of possession of the weapon and missile had not been proved, the trial judge allowed the state to reopen its case to prove this possession.
The trial judge has a wide discretion in matters of this nature, and may allow the state to reopen a case after it has rested. Miller v. State, 226 Ga. 730(3), 177 S.E.2d 253.
There was no abuse of discretion here.
5. It is contended in enumerated error 5 that the trial judge erred in denying the appellant's motion to suppress identification evidence based upon a prejudicially suggestive photographic line-up conducted in the absence of counsel.
It is contended that the testimony of Charles Barbera, given at the hearing on the motion to suppress, showed that he placed his name on the back of the photograph of the appellant even though he could not identify him.
Charles Barbera did not testify at the trial, and no evidence was admitted in regard to his identification of the appellant from the photographs. Therefore, no injury resulted to the appellant from the denial of his motion to suppress identification evidence.
5. Enumerated error 6 alleges that the court erred in allowing in evidence prejudicial remarks by the state's expert witness, over the objection that it was unresponsive to the question.
This witness was employed by the Georgia State Crime Laboratory as a microanalyst. The assistant district attorney questioned him about his examination of the weapon alleged to have been used in the homicide. He was asked the question: 'The gun standard size or how is the action of that gun, how does it work?' He replied, 'Well, these are characteristically known as Saturday night specials, they are copies of more expensive and better made guns such as Smith & Wesson and a Colt but it does its job, it will kill a person, it will fire a bullet-'
The reply of the witness, although unresponsive to the question, was not harmful to the appellant.
The appellant did not dispute the fact that the deceased was killed by the appellant's gun, or that it was a deadly weapon.
7. Enumerated error 7 contends that the court erred in allowing into evidence uncorroborated testimony of an accomplice as to statements made by the appellant, without the benefit of a charge on the principle of law that such evidence must be corroborated.
The evidence referred to is the testimony of the witness Ellena Cheeley, who was in the automobile with the appellant when he bought drugs from the deceased, and also in the automobile with him when he went back to find the deceased and get his money back, after they discovered that the drugs were not good.
This witness testified that the appellant told her, 'I am going to kill this nigger . . .'
There is no evidence that this witness was a 'party' to the crime, as that term is defined in Code Ann. § 26-801 (Ga.L.1968, pp. 1249, 1271). The only guilty participation shown was in 'hindering apprehension . . . of a criminal,' as defined by Code Ann. § 26-2503 (Ga.L.1968, pp. 1249, 1312), by aiding the appellant in...
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