Golden v. State, 63981

• Decision Date: 09 September 1982
• Docket Number: No. 63981,63981
• Citation: 295 S.E.2d 144,163 Ga.App. 629
• Parties: GOLDEN v. The STATE.
• Court: Georgia Court of Appeals

Page 144

295 S.E.2d 144

163 Ga.App. 629

GOLDEN v. The STATE.

No. 63981.

Court of Appeals of Georgia.

Sept. 9, 1982.

William C. Puckett, Jr., Asst. Public Defender, Decatur, for appellant.

Robert E. Wilson, Dist. Atty., Susan Brooks, Asst. Dist. Atty., Decatur, for appellee.

CARLEY, Judge.

Appellant and his half-brother, Marshall Mauldin, were jointly indicated and, initially, jointly tried for the offenses of aggravated assault, kidnapping, rape, armed robbery, and aggravated sodomy. During the course of the first trial, appellant was granted a mistrial. The trial, however, continued as to defendant Mauldin and resulted in his conviction of all five offenses, the charge of armed robbery being reduced to robbery by intimidation. At appellant's retrial, before a different judge and jury, he was convicted of kidnapping, rape, and robbery by intimidation. This appeal follows the denial of appellant's motion for new trial.

1. During the retrial, co-defendant Mauldin was called as a witness for the defense. On cross-examination, the state sought and obtained the trial court's permission to introduce, for the avowed purpose of impeachment, certified copies of Mauldin's record of convictions resulting from the earlier trial. Error is enumerated upon the introduction of this evidence.

The trial court did not err in failing, without request, to instruct the jury as to the limited purpose for which such evidence was admitted. "It is well recognized that when evidence is admitted for one purpose, as was in the instant case, it is not error for the court to fail to instruct the jury to limit its consideration to the one purpose for which it is admissible, in the absence of a request to so instruct the jury. [Cits.]" Harrell v. State, 241 Ga. 181, 186(2), 243 S.E.2d 890 (1978). Accord, Hendrickson v. State, 159 Ga.App. 628(2), 284 S.E.2d 645 (1981); Jarrett v. State, 161 Ga.App. 285(3), 287 S.E.2d 746 (1982). In the case before us there was no such request.

Nor do we find any error in the admission of certified copies of Mauldin's records of conviction even though he had previously acknowledged such convictions during cross-examination. It has long been the established rule in this state that "[a] witness cannot be discredited even by his own testimony that he has been convicted of an offense involving moral turpitude; it is necessary to introduce an authenticated copy of the record of the court in which he was convicted. [Cits.]" Rewis v. State, 109 Ga.App. 83, 85(3), 134 S.E.2d 875 (1964). Accord, Daniels v. State, 234 Ga. 523, 524(3), 216 S.E.2d 819 (1975); Rice v. State, 159 Ga.App. 641, 642(3), 284 S.E.2d 657 (1981). The decision of Gary v. State, 156 Ga.App. 856(3), 275 S.E.2d 830 (1980) relied upon by appellant is distinguishable on its facts inasmuch as it deals with the trial court's submission to the jury of an indictment reflecting a guilty plea of the defendant's co-indictee, not certified copies of the conviction. To the extent that the dicta in Division 3 of Gary could be construed to contradict the established method of impeachment by showing prior convictions as previously set forth, it will not be followed, especially in view of the fact that Gary is a two judge decision. See Jarriel v. Preferred Risk etc. Ins. Co., 155 Ga.App. 136, 140, 270 S.E.2d 238 (1980).

2. Error is enumerated upon the admission into evidence of an oral, pre-trial, incriminating statement which appellant gave to the police. Citing Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966) appellant contends that his statement was inadmissible inasmuch as it was the product of a custodial interrogation conducted without presence of counsel and subsequent to the invocation of his right to counsel.

At trial, a Jackson v. Denno hearing was held to determine the voluntariness and admissibility of appellant's statement. Appellant did not testify at this hearing. The uncontradicted evidence adduced at this hearing showed that, when he was initially advised of his Miranda rights, appellant invoked his right to counsel and refused to make any statement to the investigating officer. Once appellant expressed his reluctance to make any statement without benefit of counsel, all questioning ceased and appellant was taken to a detaining cell. Much later on the same day, appellant initiated certain dialogue or exchanges with the officer which indicated his desire to speak about the facts surrounding the charges against him. Appellant also indicated that he wished to speak with the officer at some place other than appellant's cell. Therefore, appellant was removed from his cell and taken to an interview room. Prior to any statement being made at this appellant-initiated conference, he was again specifically advised of his right to counsel and requested to sign a waiver of rights form. Appellant responded by stating: "I'm not signing anything. I know what I'm doing, and what I'm going to tell you is not going to hurt me. I just want to set you straight." At this point, appellant proceeded to make the statement in question which, in essence, admitted his participation in the alleged offenses but indicated that he acted out of fear of co-defendant Mauldin. Thereafter, the officer asked a few clarifying questions which appellant answered.

Under the totality of the circumstances established after a thorough review of the evidence submitted to the trial court on the Jackson v. Denno hearing, we find no error in the admission into evidence of appellant's statement. Although appellant initially expressed his desire to deal with the authorities only through counsel, the uncontroverted evidence shows that, thereafter, appellant himself initiated the dialogue with police which resulted in the conference and the ensuing statement. See Edwards v. Arizona, 451 U.S. 477, 101 S.Ct. 1880, 68 L.Ed.2d 378 (1981). Barksdale v. State, 161 Ga.App. 155(1), 291 S.E.2d 18 (1982). The...