Hall v. State

• Decision Date: 05 April 1978
• Docket Number: No. 33110,33110
• Citation: 244 S.E.2d 833,241 Ga. 252
• Parties: Jimmy Don HALL v. The STATE.
• Court: Georgia Supreme Court

Page 833

244 S.E.2d 833

241 Ga. 252

Jimmy Don HALL v. The STATE.

No. 33110.

Supreme Court of Georgia.

April 5, 1978.

Rehearing Denied April 25, 1978.

Swearingen, Childs & Philips, John C. Swearingen, Jr., Ben Philips, Columbus, for appellant.

William J. Smith, Dist. Atty., Columbus, Arthur K. Bolton, Atty. Gen., James L. Mackay, Asst. Atty. Gen., Atlanta, for appellee.

UNDERCOFLER, Presiding Justice.

Jimmy Don Hall was sentenced to death for the armed robbery and felony murder of Henry Williamson, the clerk of a liquor store in Muscogee County. His co-defendant James Floyd Smith received a life sentence. Hall appeals both his conviction and sentence. We affirm his conviction for felony murder, but, on sentence review, must vacate the death penalty.

1. In Enumerations of error 1, 2, 3, 4, 8, 9 and 10, Hall raises the general grounds, which he also urged in his motion for a new trial. He argues that the evidence is circumstantial and does not preclude all reasonable hypotheses except the guilt of the accused. Code Ann. § 38-109. We find that the evidence is not all circumstantial and that there is sufficient evidence to support the conviction.

Jerry Owens stopped at the Three Points Liquor Store to buy a bottle of vodka on his way home from work, about 9:00 p. m. on October 13, 1976. On approaching the counter, he asked the man behind the cash register, Hall, for a pack of cigarettes. At the same time, a masked, armed man, Smith, came around the counter from the grocery store side of the business and pushed him to the floor. An exchange of gunfire ensued between Smith and Williamson, resulting in the wounding of both the cashier and the defendant, Jimmy Don Hall. Williamson later died. A neighbor heard the shots and saw one man leave the store, then help another, holding his chest, into the car and depart. A third man, seen running in the opposite direction soon thereafter, was the customer, Owens, who left to call the police. A gun not kept at the liquor store was found lying on the counter.

Hall's defense was that he, Smith and a third companion, Johnny Watford, who had been seen with the two of them earlier in the evening, had stopped at the store to make a whiskey purchase. Hall was then surprised by a masked and armed Smith, who forced him, through fear of his life, to participate in the robbery. Hall claimed he was just about to take the money ¹ from the register, when Owens entered, and Smith and the cashier began the shootout. He asserts that Watford was in the grocery side of the store, and that he (Hall) was unaware of his companion's plan to commit the robbery. Watford testified for the State that he had been left at another address during the pendency of the armed robbery, although it was his car that had been used. Watford was not prosecuted for the offense. We hold that the jury was authorized to find Hall guilty of felony murder and armed robbery. However, Hall's contention in Enumeration of error 18 that the armed robbery conviction must be set aside because it is a lesser included offense of felony murder is meritorious. Burke v. State, 234 Ga. 512, 216 S.E.2d 812 (1975); State v. Estevez, 232 Ga. 316, 206 S.E.2d 475 (1974).

In Enumerations of error 7 and 13, Hall urges that the trial court erred in overruling his motion for new trial based on newly discovered evidence. However, he makes no argument on this point in his brief. It is clear, however, from the testimony of these witnesses at James Floyd Smith's trial that these affidavits contradicted their earlier testimony. Further, there was no showing that these witnesses were unknown at the time of defendant Hall's trial. We find no error.

2. In Enumerations 6, 12, and 17, Hall complains of the failure of the State to disclose certain evidence pursuant to his motion to produce exculpatory evidence (Brady v. Maryland, 373 U.S. 83, 83 S.Ct. 1194, 10 L.Ed.2d 215 (1963)), and his motion to produce documentary evidence, Brown v. State, 238 Ga. 98, 231 S.E.2d 65 (1977). Under the Brady, supra, and Brown, supra, motions, Hall claims the State failed to produce witness Johnny Watford's prior criminal record and failed to disclose that Watford was indicted the first day of Hall's trial for two drug offenses. In addition, he claims that a promise not to prosecute was made to Watford, but not revealed as required under Giglio v. United States, 405 U.S. 150, 92 S.Ct. 763, 31 L.Ed.2d 104 (1971).

We find no error in failing to produce Watford's criminal record. His convictions were revealed to the defense prior to trial and Watford admitted these offenses on the stand at the trial upon questioning by the State.

Regarding any promises made to Watford not to prosecute in exchange for his testimony, we find no evidence. The State admitted during the hearing on the pre-trial motions that Watford had been arrested initially because his car had been identified as the getaway vehicle. He refused to answer any questions during two interrogations until October 30, when he was informed that Smith and Hall had been implicated. At that time Watford was told that the other witnesses to the crime had exonerated him and that he would not be prosecuted unless the State discovered some evidence against him. Watford then made a statement, testified at trial, and admitted these circumstances to the jury on cross examination. We do not find from these facts that in fact a promise had been made. Thus Giglio, supra, is distinguishable and no due process violation ensued. Compare Potts v. State, 241 Ga. 67, 243 S.E.2d 510 (1978).

The failure to disclose that Watford had, the day of the trial, been indicted on two drug violations is Hall's next contention. That this fact was known by the prosecution was admitted during the motion for new trial. We do not find, however, under the rules of evidence of this State that any error was committed. A witness' character may be impeached only by introduction of his criminal convictions involving moral turpitude (Woodward v. State, 197 Ga. 60, 28 S.E.2d 480 (1943)), not by showing he was indicted (Metropolitan Life Ins. Co. v. Saul, 189 Ga. 1, 5 S.E.2d 214 (1939)). Therefore, the trial court did not err in refusing to grant a new trial on this basis.

Further, we find no error in Hall's contention that he was not allowed to make copies of the police reports. Hall's attorney was permitted to inspect these reports and was shown all the physical evidence including photographs which would be used at trial. In addition, the trial court promised to inspect the police officers' files after each testified to see that the State had complied with the requirements of Hall's Brady motion. It is clear that the defense was given copies of the police witnesses' statements at trial because Hall's attorney cross examined these witnesses and impeached them using their prior statements. Thus there is no merit to Hall's contention that the State did not properly respond to his motion to produce under Brown v. State, supra.

We find no failure in the State to comply with the discovery motions of the defendant. Enumerations 6, 12 and 17 show no cause for reversal.

3. Enumeration of error 16 complains of the failure of the trial court to suppress the testimony of Dr. Edward Howard. Hall contends that these statements, which resulted from an unlawful search and seizure, violated his Fourth Amendment rights.

Hall was examined by Dr. Howard shortly after his arrest. There was no search warrant obtained and no release or consent was signed by Hall. Howard inspected the healing wounds in Hall's arm and chest and photographs were taken which were introduced at trial over the objection of the defendant. The trial court refused to suppress this evidence at a pre-trial hearing and also refused to sustain Hall's renewed objection to it at the trial. We, however, pretermit the question whether a warrant is necessary to take demonstrative evidence similar to fingerprints and voice samples. Compare Schmerber v. California, 384 U.S. 757, 86 S.Ct. 1826, 16 L.Ed.2d 908 (1966); United States v. Wade, 388 U.S. 218, 87 S.Ct. 1926, 18 L.Ed.2d 1149 (1967); Creamer v. State, 229 Ga. 511, 192 S.E.2d 350 (1972). The error, if any, to fail to obtain a warrant is harmless in this case. Fahy v. Connecticut, 375 U.S. 85, 84 S.Ct. 229, 11 L.Ed.2d 171 (1963); Lawson v. State, 236 Ga. 770, 225 S.E.2d 258 (1976); Nealey v. State, 233 Ga. 326, 211 S.E.2d 286 (1974).

The standard for harmless constitutional error is the balancing test set out in Schneble v. Florida, 405 U.S. 427, 92 S.Ct. 1056, 31 L.Ed.2d 340 (1972). The rational possibility that the tainted evidence (the presence, age and location of the wounds of the defendant) contributed to the verdict is weighed against the other untainted evidence of guilt to see if the tainted evidence could have had a prejudicial effect on the verdict of an average jury. Applying this test, it is clear that the error, if any, was harmless.

The defendant admitted at trial having been shot; he even described operating on himself to remove the bullet lodged just below the skin on his chest. His defense, that he was coerced into participating in the armed robbery, was not in any way prejudiced by the evidence concerning his wounds. We find that if any error occurred in searching his person without a warrant absent some emergency, it was harmless beyond a reasonable doubt.

4. It was not error, as asserted in Hall's twentieth enumeration of error, for the trial court to fail to allow the jurors to ask Hall questions after he testified, and to refuse to exercise his discretion to inform the jurors of any right to do so. Hall was thus not denied due process of law. We have found no Georgia authority and conclude that jurors are not permitted during trial to interrogate witnesses. Contra, Green, Georgia Law of Evidence § 131.

5. Hall raises a violation of his right to remain silent in his Enumeration of error 21. The district...