Green v. State

Decision Date07 September 1978
Docket NumberNo. 33696,33696
Citation242 Ga. 261,249 S.E.2d 1
PartiesGREEN v. The STATE.
CourtGeorgia Supreme Court

Richard G. Milam, Jackson, for appellant.

E. Byron Smith, Dist. Atty., Kenneth R. Waldrep, Asst. Dist. Atty., Arthur K. Bolton, Atty. Gen., Daryl A. Robinson, Asst. Atty. Gen., for appellee.

UNDERCOFLER, Presiding Justice.

Roosevelt Green, Jr., was convicted of the murder of Teresa Carol Allen and sentenced to death. The appellant is before this court on direct appeal of his conviction and for mandatory review of the death sentence.

Prior to this trial Carzell Moore was convicted of the murder and rape of Teresa Carol Allen and sentenced to death for both offenses. The convictions and death sentences of Moore were affirmed in Moore v. State, 240 Ga. 807, 243 S.E.2d 1 (1978). The evidence in Moore's trial adequately portrays the factual situation and will be repeated only where necessary for resolution of some issue.

I. Enumerations of Error

1. The first three enumerations all relate to the general ground of appeal in that they allege (1) the verdict and sentence are not supported by the evidence; (2) the verdict and sentence are contrary to the law and the evidence; and (3) the trial court erred in overruling defendant's motion for a directed verdict of acquittal.

The only issue presented to this court by these enumerations is whether there is any evidence to support the verdict. Campbell v. State,240 Ga. 352, 240 S.E.2d 828 (1977); Drake v. State, 241 Ga. 583, 247 S.E.2d 57 (1978); Bethay v. State, 235 Ga. 371, 219 S.E.2d 743 (1975); Ridley v. State, 236 Ga. 147, 223 S.E.2d 131 (1976). In making this determination we view the evidence in the light most favorable to the verdict rendered and resolve all conflict in the evidence in favor of the verdict. Eubanks v. State, 240 Ga. 544, 242 S.E.2d 41 (1978); Harris v. State, 236 Ga. 766, 225 S.E.2d 263 (1976); Myers v. State, 236 Ga. 677, 225 S.E.2d 53 (1976); Harris v. State, 234 Ga. 871, 218 S.E.2d 583 (1975).

From the evidence presented at the trial the jury was authorized to find the following:

a. The appellant was in the area where Miss Allen was robbed and kidnapped shortly before the crime without any means of transportation or funds.

b. He was not seen in the area after the kidnapping and robbery occurred.

c. The appellant appeared in South Carolina driving Teresa Allen's automobile (which he asked a friend to burn for him) approximately nine hours after the robbery and kidnapping.

d. The convenience store in Cochran that Miss Allen operated was robbed of bills and change. When he appeared in South Carolina, the appellant had in his possession a large quantity of money, both bills and change.

e. The appellant had the murder weapon in his possession when he arrived in South Carolina.

f. A glove found at the scene of the murder had hairs on it similar to those of both appellant and the victim.

g. Caucasian head hair identical to the hair of the victim was located on a sweater located in the appellant's suitcase.

h. Approximately twelve days after Teresa Allen had been shot to death in Monroe County, Georgia, the appellant told his girl friend that he had shot or killed a girl in Georgia.

The jury had before it ample evidence to support the verdict and the trial court did not err in overruling the appellant's motion for a directed verdict of acquittal.

Enumerations 1, 2, and 3 are without merit.

2. In Enumeration 4, the appellant alleges, "The trial court erred in denying defendant's motion for a change of venue."

The appellant's motion was based on prejudicial pre-trial publicity.

When the appellant's motion for a change of venue was heard on January 6, 1978, the trial court withheld ruling until the voir dire examination of the jurors had been conducted.

In denying the motion for change of venue the trial court reflected that "it is the finding of the court that the jurors that were put upon the defendant in this case were impartial; that they were not influenced, or would not or will not be influenced by what they may have read or heard about the case." The testimony of the prospective jurors supports this finding.

The trial judge did not abuse his discretion in denying the appellant's motion for change of venue. Campbell v. State, 240 Ga. 352, 240 S.E.2d 828, supra; Young v. State, 239 Ga. 53, 236 S.E.2d 1 (1977); Wilkes v. State, 238 Ga. 57, 230 S.E.2d 867 (1976); Coleman v. State, 237 Ga. 84, 226 S.E.2d 911 (1976); Krist v. Caldwell, 230 Ga. 536, 198 S.E.2d 161 (1973).

3. In Enumeration 5, the appellant alleges, "The trial court erred in denying defendant's motion to suppress evidence illegally seized."

The evidence sought to be suppressed by the appellant was a suitcase identified as belonging to the appellant that was located in a building where the appellant had no authority to be or to store his property. The appellant was neither landlord nor tenant. Both the sometime tenant and the owner testified that the appellant had no authority to live there. The owner of the building opened the suitcase and examined the contents and then turned the suitcase with its contents over to the police.

"Probable cause and a warrant are not required for a search and seizure which is conducted pursuant to consent." Schneckloth v. Bustamonte, 412 U.S. 218, 93 S.Ct. 2041, 36 L.Ed.2d 854; McKendree v. State, 133 Ga.App. 295, 296, 211 S.E.2d 154 (1974); Hall v. State, 239 Ga. 832, 238 S.E.2d 912 (1977). " 'When the prosecution seeks to justify a warrantless search by proof of voluntary consent, it is not limited to proof that consent was given by the defendant but may show that permission to search was obtained from a third party who possessed common authority over or other sufficient relationship to the premises or effects sought to be inspected.' United States v. Matlock, 415 U.S. 164, 171, 94 S.Ct. 988, 39 L.Ed.2d 242 (1974)." Peek v. State, 239 Ga 422, 426, 238 S.E.2d 12, 17 (1977); Hall v. State, 239 Ga. 832, 238 S.E.2d 912, supra. In addition to the valid permission given to seize the suitcase and its contents, the status of the appellant in relation to the building is such that he has no standing to challenge the search. Brown v. United States, 411 U.S. 223, 229-230, 93 S.Ct. 1565, 36 L.Ed.2d 208 (1973).

Enumeration 5 is without merit.

4. In Enumeration 6, the appellant alleges, "The trial court erred in limiting defendant's right to cross examine the witness Charlie Livingston on the issue of his alleged identification of the rifle, State's Exhibit No. 6."

The right to cross examination, thorough and sifting, shall belong to every party as to the witnesses called against him. Code Ann. § 38-1705. This right is, however, subject to limitations to prevent abuse. In a case such as this one where the question asked had already been answered and the counsel had begun to be argumentative with the witness we cannot say the trial court abused its discretion. Control of the cross examination of a witness is to a great degree within the discretion of the trial court and will not be controlled unless abused. Eades v. State, 232 Ga. 735, 208 S.E.2d 791 (1974); McNabb v. State, 70 Ga.App. 798, 29 S.E.2d 643 (1944); Sweat v. State, 63 Ga.App. 299, 11 S.E.2d 40 (1940).

Enumeration 6 is without merit.

5. In Enumeration 7, the appellant alleges, "The trial court erred in sending the jury out of the courtroom, allowing the district attorney to prompt his witness, and then allowing the district attorney to cross examine and impeach his own witness, Charlie Livingston."

This enumeration is founded on the testimony of Charlie Livingston who could not remember at this trial the color of both of the money bags he had seen in the victim's car which was in the possession of the appellant when he arrived in South Carolina or the lettering that had been on the bags. When his memory was refreshed concerning his testimony at Carzell Moore's trial, he was able to testify concerning the color of the bags and his memory of the bags was restored. Later, all of these developments were brought to the jury's attention by appellant's counsel so that they were fully apprised of what had transpired. The witness later said he had misunderstood when the word "container" was used in asking about any money bags.

A witness may use any source to refresh his memory, so long as he testified from his memory thus refreshed. Agnor's Ga. Evidence, § 4-10.

As long as the witness is willing to swear from his memory as refreshed, his memory may be refreshed by any kind of stimulus, "a song, or a face, or a newspaper item." Jewett v. United States, 15 F.2d 955 (9th Cir., 1926). It was error to refuse to permit a medical witness to refresh his memory from x-ray photographs which he had not personally taken. Smith v. Morning News, Inc., 99 Ga.App. 547, 109 S.E.2d 639 (1959). A witness should be able to use almost any writing to refresh his memory. Hall v. State, 130 Ga.App. 233, 202 S.E.2d 674 (1973). See also Agnor's Ga. Evidence, § 4-10.

No issue of impeachment of the state's own witness appears to be presented here. Code Ann. § 38-1801.

Enumeration 7 is without merit.

6. In Enumeration 8, "The trial court erred in denying defendant's motion for a mistrial upon the basis that defendant had been exhibited to the jury in chains."

The appellant had previously escaped from confinement twice and precautions taken for his security were to employ a travel belt which consisted of a belt around the waist and one handcuff on each side so designed that one hand cannot reach the other. He was thus secured when returning from lunch on the day in question. The appellant makes only a bare allegation. The evidence shows that a group of people was coming across the street as the appellant was entering the building where the trial was held. There is no testimony that they were jurors or that they were not jurors. There is no evidence that any of ...

To continue reading

Request your trial
39 cases
  • Tucker v. Francis
    • United States
    • U.S. Court of Appeals — Eleventh Circuit
    • January 16, 1984
    ...adjudicated guilt question, Georgia law permits this type of evidence during the sentencing phase of a capital trial. Green v. State, 242 Ga. 261, 249 S.E.2d 1 (1978) rev'd on other grounds, 442 U.S. 95, 99 S.Ct. 2150, 60 L.Ed.2d 738 (1979). Had the appellant limited his presentence testimo......
  • Godfrey v. Georgia
    • United States
    • U.S. Supreme Court
    • May 19, 1980
    ...(1979); Legare v. State, 243 Ga. 744, 257 S.E.2d 247, cert. denied, 444 U.S. 984, 100 S.Ct. 491, 62 L.Ed.2d 413 (1979); Green v. State, 242 Ga. 261, 249 S.E.2d 1 (1978), rev'd on other grounds, 442 U.S. 95, 99 S.Ct. 2150, 60 L.Ed.2d 738 (1979); Young v. State, 239 Ga. 53, 236 S.E.2d 1, cert......
  • State v. Turner
    • United States
    • Missouri Supreme Court
    • October 13, 1981
    ...exonerated Chambers, and at Green's trial the evidence would not have exonerated him of the underlying felonies. Green v. State, 242 Ga. 261, 271, 249 S.E.2d 1, 9 (1978). Obviously, the United States Supreme Court rejected such distinctions citing Chambers v. Mississippi, supra, and held th......
  • State v. Guzek
    • United States
    • Oregon Supreme Court
    • March 4, 2004
    ...excluded the evidence on hearsay grounds, and the Georgia Supreme Court affirmed. 442 U.S. 95-96,99 S.Ct. 2150; Green v. State, 242 Ga. 261, 272-73, 249 S.E.2d 1, 9-10 (1978).28 In a brief per curiam, eight-to-one decision, the Supreme Court reversed. The Court "Regardless of whether the pr......
  • Request a trial to view additional results

VLEX uses login cookies to provide you with a better browsing experience. If you click on 'Accept' or continue browsing this site we consider that you accept our cookie policy. ACCEPT