Gaines v. State, 28918
| Decision Date | 04 September 1974 |
| Docket Number | No. 28918,28918 |
| Parties | Robert Allen GAINES v. The STATE. |
| Court | Georgia Supreme Court |
Syllabus by the Court
1. The evidence amply supported the verdict.
2. The charge to the jury that the appellant could receive only life imprisonment if convicted and the failure to provide for a pre-sentence hearing were not harmful here.
3. The court did not err in failing to charge on circumstantial evidence.
4. The in-court identifications were not tainted by an invalid pre-trial lineup.
5. The testimony objected to as hearsay was admissible as a part of the res gestae.
6. The appellant was not denied the effective assistance of counsel.
Roberts & Roberts, Guy V. Roberts, Jr., Lawrence W. Roberts, Cordele, for appellant.
Claude N. Morris, Dist. Atty., Americus, Arthur K. Bolton, Atty. Gen., Thomas P. Burke, Duputy Asst. Atty. Gen., Atlanta, for appellee.
Robert Allen Gaines, alias William James Wallace, appeals from his conviction of murder and sentence of life imprisonment in the Superior Court of Sumter County, and from the denial of his motion for new trial.
1. The enumeration contending that the trial court erred in denying appellant's motion for new trial because the verdict was contrary to the evidence and strongly against the weight of the evidence is not sustained by the record.
The testimony of two eyewitnesses, Herschel Neely (or McNeely) and James Battle, showed that at approximately 2:50 a.m. on August 10, 1973, the appellant and the victim Samuel Merritt had a brief conversation on a street corner outside a cafe in Americus, Georgia; that the appellant left and Merritt was joined by Neely and Battle; that shortly thereafter the appellant walked back down the street and joined this group; that after a brief exchange with Merritt, the appellant pulled a gun from his belt and shot him in the chest; and that there had been no words or fighting between the two men prior to the shooting.
Eddie McGrady, a security officer, testified that he was sitting in his office close to where the shooting occurred and heard the shot; that he immediately opened his door and saw Merritt run by and fall to the ground approximately 15 feet away; that he saw the appellant and ordered him to halt, but he ran up the street; that he fired a warning shot in the air but the appellant kept on running and turned into the yard of Clarence Smith; that after going back and ascertaining that the police and an ambulance had been called for the victim he went to Clarence Smith's home; and that the appellant surrendered himself to him there and he then turned him over to Officer Hayes of the Americus Police Department.
Officer Hayes stated that after receiving a call to go to a shooting at North Lee Street he and several other officers found the victim Merritt; that after the body was removed he remained in the area looking for the person who had done the shooting; that his investigation led him to Clarence Smith's house and when he arrived Eddie McGrady had the appellant in custody; that he thereupon arrested the appellant and took him to police headquarters where he was advised of his rights; that he immediately returned to Clarence Smith's house and received permission to search the premises; and that he found a pistol, subsequently identified and introduced in evidence, under a couch in the carport which was loaded with three live rounds and a spent shell.
In our view, the evidence amply supports a finding that the appellant shot Merritt in an unprovoked attack. Nor do the claims in regard to the angle of the bullet and the affidavit of a witness who did not testify at the trial show that there was an abuse of discretion in the denial of the motion for new trial. The testimony of the two eyewitnesses alone was sufficient to authorize the conviction.
2. Enumerations of error 1 and 2 complain that it was error to charge the jury that the only possible sentence the appellant could receive, if convicted, was life imprisonment and also error to fail to provide him a pre-sentence hearing.
We do not agree.
Code Ann. § 26-1101(c) (Ga.L.1968, pp. 1249, 1276) provides that 'A person convicted of murder shall be punished by death or by imprisonment for life.' The appellant was convicted of murder and the state properly did not seek the death penalty under the facts here. Therefore, since there was no other possible sentence to be imposed, a pre-sentence hearing as provided for in Code Ann. § 27-2534 () was unnecessary.
Moreover, the instruction complained of when viewed in its totality merely directed the jury's attention to the sole issue, i.e., whether or not the appellant was guilty or innocent of the charge against him. The cases relied upon by the appellant are not in point here and he has in no way shown that he was harmed by the charge as given.
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