Greeson v. State
| Decision Date | 28 April 1976 |
| Docket Number | No. 2,No. 52080,52080,2 |
| Parties | J. M. GREESON et al. v. The STATE |
| Court | Georgia Court of Appeals |
Garland, Nuckolls & Kadish, John A. Nuckolls, Atlanta, for appellants.
David N. Vaughan, Jr., Dist. Atty., Cartersville, for appellee.
Defendants were indicted and convicted of a violation of the Georgia Controlled Substance Act in the possession and sale of marijuana. Both were sentenced to serve 5 years. A motion for new trial was filed and denied. Defendants appeal. Held:
1. When this case was called in the presence of the jury panel, the district attorney announced that there are a number of pending cases against these defendants, but he only wanted to call the marijuana case. Whereupon defense counsel moved that all the panel be stricken inasmuch as the district attorney had informed the jury of certain criminal allegations against these defendants, thereby putting their character in issue. The motion was overruled. A jury was then selected from what defense counsel contends was a 'tainted' panel. This court does not condone this practice and the district attorney was out of order and should never have referred to the fact that he had a number of pending cases against the defendants, but only wanted to call the marijuana case. The trial court itself should have rebuked the district attorney and by all needful and proper instruction to the jury endeavored to remove the improper impression from the minds. It is possible that all the members of the jury may not have heard the statement or have understood the statement so as to create such harmful error that a fair and impartial trial court not be attained. Under Code § 81-1009 it is the trial judge's duty to see that improper remarks are not allowed and that the harmful impression created by such remarks be removed from the jurors' minds. Still, as we are granting a new trial on other grounds we will not grant one here, but leave this matter with our lack of approval of the way this part of the preliminary proceedings was conducted, and with the expectation that they will not be repeated at the next trial.
2. Counsel for the defendant urges in his second enumeration of error that the court erred in failing to charge the law relating to impeachment of witnesses, since several of the state's witnesses were contradicted in important specifics, but there was no written request for such a charge. It was not error to fail to charge the law with respect to contradictory evidence or with respect to impeachment of witnesses where no timely written request therefor was made. See Bonaparte v. State, 223 Ga. 648(1), 157 S.E.2d 272; Bennett v. State, 130 Ga.App. 510, 513(3), 203 S.E.2d 755.
3. The third enumeration of error complains of the trial court's charge of the so-called 'Allen' charge after the jury had deliberated for a little over two hours without reaching a verdict. See Allen v. U.S., 164 U.S. 492, 17 S.Ct. 154, 4 L.Ed. 526, which is referred to as 'the outermost limits' of permissible instruction when a jury is unable to reach a verdict. Defense lawyers call this the 'dynamite charge to dislodge a log jam' where the jury is less than unanimous in its deliberations. Here the trial court erred in failing to include the proper cautionary words in giving such a charge, that is, that no juror is required to surrender his or her opinion because of the honest different opinion with another juror or other jurors, for the purpose of reaching a unanimous verdict. Gaddy v. Harmon, 191 Ga. 563, 564, 13 S.E.2d 357; also see Ponder v. State, 229 Ga. 720(2), 194 S.E.2d 78. Here the court also failed to properly instruct the jury emphatically or specifically that they should not surrender their conscientious convictions.
Counsel for the state contends that in the re-charge, the court referred to 'agreement if possible,' thus emphasizing that no jury should give up an honestly-held opinion. But this language does not measure up to that required by the Allen charge. Counsel for the state contends that part of the charge was approved in Stone v. State, 132 Ga.App. 703, 707(c), 209 S.E.2d 121. Also...
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Wilson v. State
...juror or other jurors or for the purpose of reaching an unanimous verdict.' " (Emphasis supplied.) Thereafter, in Greeson v. State, 138 Ga.App. 572, 574(3), 226 S.E.2d 769, 770, this court reviewed an Allen charge in which the cautionary language was not included and held: ". . . the trial ......
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Anglin v. State
...reaching a unanimous verdict," arguing that such language was required by the Court of Appeals' decision in Greeson v. State, 138 Ga. App. 572, 573-574 (3), 226 S.E.2d 769 (1976). But we subsequently reversed that holding as inconsistent with Spaulding v. State, 232 Ga. 411, 413-414 (4), 20......
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Stevens v. State
...which was in the actual possession of Walls. See Russell v. State, 132 Ga.App. 35, 36(1), 207 S.E.2d 619 (1974); Greeson v. State, 138 Ga.App. 572, 574(4), 226 S.E.2d 769 (1976), aff'd, 237 Ga. 193(2), 227 S.E.2d 324 (1976). Nor does evidence that appellant had ingested some cocaine within ......
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Callaham v. State
...and not a mere acquiescence of the jurors in order to reach an agreement if they can conscientiously do so.” Greeson v. State, 138 Ga.App. 572, 573–574(3), 226 S.E.2d 769 (1976). But the Supreme Court summarily reversed on the ground that the decision was “in conflict with Spaulding v. Stat......