Gunn v. State, 35567
| Citation | 264 S.E.2d 862,245 Ga. 359 |
| Decision Date | 04 March 1980 |
| Docket Number | No. 35567,35567 |
| Parties | GUNN v. The STATE. |
| Court | Supreme Court of Georgia |
E. Jay McCollum, Demorest, for appellant.
V. D. Stockton, Dist. Atty., Michael H. Crawford, Asst. Dist. Atty., Arthur K. Bolton, Atty. Gen., Michael R. Johnson, Staff Asst. Atty. Gen., for appellee.
Calvin Gunn was convicted of the malice murder of Eddie Williams and sentenced to life imprisonment. According to the testimony of Rusty Ivester and Mike Shirley, they and Eddie Williams, the victim, were at the Frontier Lounge in Rabun County on March 23, 1979, when the defendant, Calvin Gunn, arrived. The defendant and the victim got into an argument and the defendant threatened to kill the victim. The two went outside but the bartender prevented the fight. Shirley and the victim then left together in the victim's car to pick up Shirley's sister.
When Shirley mentioned that the defendant was following them closely in his car, the victim pulled into a parking lot and got out and leaned against his car. Shirley walked some 25 yards away to relieve himself. The defendant walked up to the victim. They talked briefly before beginning to walk toward Shirley. The defendant then reached behind his back, pulled out the butt end of a pool stick, and struck the victim in the head with it at least twice before the victim was able to protect his head. The defendant then struck the victim several more times before the defendant dropped the stick during the fight. Shirley picked the stick up and struck the defendant in the back several times in order to break up the fight. Once the two were disengaged, the defendant asked for his stick back. Shirley told him he would throw it "over there" if the defendant would leave. The victim got in his car and was ready to leave and Shirley threw the stick away as he got in the car. Shirley and the victim then returned to the Frontier Lounge. The victim stayed in the car. The defendant arrived at the lounge shortly after they did, said he had gotten the victim and threatened to kill Shirley before bystanders ran him off. The victim went home, saying he would be all right.
The victim's wife testified that he was taken to the hospital emergency room the next morning. He died that day. The attending doctor performed an autopsy; he testified that the victim's death was caused by a blow "to the left side of the head with a fracture of the skull and an injury resulting in intra cranial bleeding with subsequent development of cerebral edema or swelling of the brain to the point it can't function." The doctor also testified that the blow was made by a smooth object that delivered its force to a relatively large area, and that the object "very definitely" could have been the sawed-off pool cue introduced as state's exhibit one.
1. Defendant enumerates as error the trial court's overruling of his motion to quash the indictment. He was arrested pursuant to a warrant on March 25, 1979. His attorney was appointed on April 19, 1979, and a committal hearing was held on May 23, 1979. The grand jury returned the indictment on May 28, 1979. Defendant filed his motion to quash the indictment on June 5, 1979.
Defendant argues that one of the grand jurors was incompetent because he was on a panel for defendant's prior trial for foeticide in which defendant had entered a special plea of insanity, and that this same juror was incompetent under Code Ann. § 59-201 because he had been convicted of a felony. Assuming without deciding that the fact that this grand juror had been on a prior panel would render him incompetent, any objection was waived by not being timely made prior to indictment. Mydell v. State, 238 Ga. 450, 233 S.E.2d 199 (1977), cert. den. 431 U.S. 970, 97 S.Ct. 2933, 53 L.Ed.2d 1068 (1977); Parris v. State, 125 Ga. 777, 54 S.E. 751 (1906).
As for the second challenge, the record shows that the juror pled guilty in federal court to violation of 26 U.S.C.A. §§ 5601, 5205(a)(2), and was sentenced on May 25, 1971. 1 At that time, conviction of a federal crime did not render a grand juror incompetent in Georgia. Brady v. State, 199 Ga. 566, 567(2), 34 S.E.2d 849 (1945). Code Ann. § 59-201 was amended in 1976 so as to provide that a felony conviction would render a grand juror incompetent. Ga.L.1976, pp. 438, 444-45. It is not necessary to decide whether the 1976 act applies to federal felony convictions since it shows no legislative intent that it be applied retroactively, and we decline to so apply it. Anthony v. Penn, 212 Ga. 292, 92 S.E.2d 14 (1956). Thus we hold that the grand juror was not rendered incompetent by his federal conviction rendered prior to 1976.
2. Defendant also argues that the trial court erred in not granting his motion to change venue when he had just denied a motion for bond in part because he found custody was necessary in order to protect the defendant. 2 Defendant also points out that, on the advice of a deputy that he was in danger, he had voluntarily placed himself in protective custody prior to a warrant being issued. Defendant argues that because of the evidence of danger, a change of venue was mandatory under Code Ann. § 27-1201; Pierce v. State, 125 Ga.App. 490, 188 S.E.2d 181 (1972); and Pinkston v. State, 80 Ga.App. 268(2), 55 S.E.2d 877 (1949). We cannot agree.
The only evidence of danger to the defendant is the deputy's testimony that he advised him to turn himself in for his own protection. This deputy also testified that the danger was not community-wide but was instead limited to the possibility that one or two relatives of the victim might work the defendant over. On these facts, we cannot find that a change of venue was mandated, nor do we find that the trial court abused his discretion in not granting the motion. Pierce v. State, supra; Attaway v. State, 149 Ga.App. 693, 694, 256 S.E.2d 94 (1979).
Defendant also argues that his change of venue motion should have been granted because due to pretrial publicity he was unable to obtain a fair and impartial jury in Rabun County. The evidence does not support this assertion and we find no abuse of discretion in the denial of the motion. Street v. State, 237 Ga. 307(1), 227 S.E.2d 750 (1976), death penalty vacated on other grounds, 429 U.S. 995, 97 S.Ct. 520, 50 L.Ed.2d 606 (1976).
3. Defendant also enumerates error on the denial of his motion for continuance. The victim died on March 24, 1979; defendant's attorney was appointed on April 19, 1979. The motion was filed on June 5, 1979, and denied, after a hearing, on June 6, 1979. The trial commenced on June 18, 1979. Defendant's motion alleged that his counsel had not had sufficient time to prepare a proper defense, that he had been unable to locate an alleged witness to the fight resulting in the victim's death, and that widespread publicity mandated a continuance. The witness referred to was a motorcyclist who according to defendant's counsel had ridden by the scene; this was the extent of defendant's information about this alleged witness. There was no evidence to suggest that a continuance would enable the defendant to identify or locate this individual. We hold that the trial court did not abuse its discretion in denying the motion. Alderman v. State, 241 Ga. 496(2), 246 S.E.2d 642 (1978), cert. den., 439 U.S....
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