Hall v. State

• Court: Georgia Supreme Court
• Writing for the Court: MARSHALL; All the Justices concur, except JORDAN, J., who concurs in the judgment only, and HALL; HALL
• Citation: Hall v. State, 253 S.E.2d 160, 243 Ga. 207 (Ga. 1979)
• Decision Date: 27 February 1979
• Docket Number: No. 34305,34305
• Parties: HALL v. The STATE.

Page 160

253 S.E.2d 160

243 Ga. 207

HALL v. The STATE.

No. 34305.

Supreme Court of Georgia.

Argued Jan. 10, 1979.

Decided Feb. 6, 1979.

Rehearing Denied Feb. 27, 1979.

Edwards, Edwards & Edwards, John Kent Edwards, Richard M. Cowart, Valdosta, for appellant.

H. Lamar Cole, Dist. Atty., Arthur K. Bolton, Atty. Gen., W. Davis Hewitt, Staff Asst. Atty. Gen., for appellee.

MARSHALL, Justice.

The appellant was indicted in the Lowndes Superior Court, and following the grant of her motion for change of venue, she was convicted in the Colquitt Superior Court of the murder of her newly born baby. She appeals. We affirm.

1. In enumeration of error 1, the appellant contends that the trial court erred in admitting in evidence certain oral and written statements which were given by the appellant to police prior to the time she was given her Miranda warnings.

We find that even if these statements were improperly admitted, the error was harmless in view of the fact that the appellant testified at trial to the same facts she gave in these statements.

In addition, after being given her Miranda warnings, the appellant gave other oral and written statements to police covering the same matters contained in her earlier statements. These latter statements were properly admitted in evidence after the trial court determined at the Jackson-Denno hearing that they were freely and voluntarily given. This provides another reason for holding that admission of the statements made by appellant prior to the time she received her Miranda warnings, if error, was harmless. We find this enumeration of error to be without merit.

2. In enumeration of error 2, the appellant argues that the trial court erred under Code Ann. § 59-705 in refusing to allow defense counsel to propound certain questions to prospective jurors on voir dire examination.

It was held in Hill v. State, 221 Ga. 65(8), 142 S.E.2d 909 (1965) that even though the language of Code Ann. § 59-705 is broad, the trial judge still retains the discretion to limit the voir dire examination of prospective jurors to questions dealing directly with the specific case and to prohibit general questions. "The single purpose for voir dire is the ascertainment of the impartiality of jurors, their ability to treat the cause on the merits with objectivity and freedom from bias and prior inclination. The control of the pursuit of such determination is within the sound legal discretion of the trial court, and only in the event of manifest abuse will it be upset upon review." Whitlock v. State, 230 Ga. 700, 706, 198 S.E.2d 865, 868 (1973).

We hold that in refusing to allow defense counsel to propound the requested questions to the jury panel, the trial judge was properly exercising his discretion under Hill to limit voir dire examination to questions dealing with the specific case and prohibit general questions. We find no abuse of discretion. We therefore find this enumeration of error to be without merit.

3. Enumerations of error 3 and 9 raise the question of whether there is any evidence to support the verdict.

The evidence authorized the jury in finding that the appellant gave birth to the deceased child in a toilet. She then placed the child in a trash can without determining whether the child was alive or dead, and she subsequently buried the child in her backyard. There was testimony that two of the appellant's children had heard the baby crying after the appellant placed it in the trash can. This authorized the jury in finding that the baby was alive when it was born. The baby's corpse was later exhumed by the police.

"In order to convict for the murder of a newly born baby, it is incumbent upon the State to prove that the child was born alive and had an independent and separate existence from its mother, and that it was slain by the accused." Logue v. State, 198 Ga. 672, 32 S.E.2d 397 (1944). Accord, White v. State, 238 Ga. 224, 232 S.E.2d 57 (1977).

The evidence presented in the instant case authorized the jury in making the foregoing findings. We therefore find the evidence sufficient to support the verdict. This enumeration of error is without merit.

4. In enumeration of error 4, the appellant argues that the trial court erred in transferring the case to Colquitt County without asking the appellant to agree with the prosecuting attorney for transfer of the case to another possible county, as permitted by Code Ann. § 27-1201, and without sending to the Colquitt Superior Court the papers connected with the case, as required by Code Ann. § 27-1203.

The appellant's motion for change of venue merely requested that the Lowndes Superior Court change venue "to another county." The motion for change of venue was granted, and the case was transferred to Colquitt County. When the case came on for trial in the Colquitt Superior Court, defense counsel announced "ready" and proceeded to try the case. Had the appellant wished the case to be transferred to some county other than Colquitt County, she should have made such a request at trial. Having failed to do this, she has waived the point and can not now complain on appeal.

The appellant does not point to any particular papers connected with the case which the Lowndes Superior Court failed to transfer to the Colquitt Superior Court. In fact, it appears from the record that the Lowndes Superior Court did transfer to the Colquitt Superior Court such essential papers as the indictment and order granting change of venue. The appellant has not shown how she was harmed by the Lowndes Superior Court's failure to transfer any other papers.

We therefore find this enumeration of error to be without merit.

5. In enumeration of error 5, the appellant argues that the trial court erred in admitting in evidence photographs of the deceased child. This is clearly a matter within the discretion of the trial court, and we find no abuse thereof. We find this enumeration of error to be without merit.

6. In enumeration of error 6, the appellant argues that the trial court erred in allowing a detective from the Lowndes County Sheriff's Department, who was the prosecuting witness, to remain in the courtroom at trial without requiring him to testify first. The appellant argues that this deprived her of her right to sequestration of witnesses under Code Ann. § 38-1703.

The district attorney stated to the trial court that it was necessary to keep the prosecuting witness in the courtroom to assist in the presentation of the case. The defense requested that the prosecuting witness be required to testify first, and the district attorney objected on the ground...