Harper v. State, 73827

• Decision Date: 14 April 1987
• Docket Number: No. 73827,73827
• Citation: 182 Ga.App. 760,357 S.E.2d 117
• Parties: HARPER v. The STATE.
• Court: Georgia Court of Appeals

Page 117

357 S.E.2d 117

182 Ga.App. 760

HARPER v. The STATE.

No. 73827.

Court of Appeals of Georgia.

April 14, 1987.

Rehearing Denied May 1, 1987.

Certiorari Denied June 25, 1987.

Milton F. Gardner, Milledgeville, for appellant.

Joseph H. Briley, Dist. Atty., Fredric D. Bright, Asst. Dist. Atty., for appellee.

CARLEY, Judge.

Appellant was tried on an indictment charging her with murder. The jury returned a verdict of guilty of voluntary manslaughter. Appellant's motion for new trial was denied, and she appeals from the judgment of conviction and sentence entered on the jury verdict.

1. The general grounds are enumerated. The evidence showed that the victim was estranged from his wife and had become involved in a love affair with appellant. Appellant became angry when the victim informed her that he intended to end their relationship and return to his wife. Appellant had threatened to kill the victim with a knife and, on the date in question, a witness saw appellant physically confront the victim, standing only a foot away from him. Immediately thereafter, the victim collapsed, having sustained a fatal stab wound in the chest. A bloody knife was recovered nearby. The only identifiable fingerprints on the knife were those of appellant.

When reviewed in the light most favorable to the verdict, the evidence was sufficient to authorize any rational trior of fact to find proof of appellant's guilt of voluntary manslaughter beyond a reasonable doubt. Jackson v. Virginia, 443 U.S. 307, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979).

2. Several of appellant's enumerations of error relate to the fact that the jury was allowed to view the scene of the crime.

Appellant urges that the trial court erred by granting the jury's request, made after its deliberations had begun, to visit and view the scene of the crime. Whether to allow a jury to view the scene of a crime is discretionary and there was no error here. See generally McDaniel v. State 248 Ga. 494(2), 283 S.E.2d 862 (1981); Forney v. State, 255 Ga. 316, 320(7), 338 S.E.2d 252 (1986).

Appellant further contends that the trial court erred in failing to charge the jury that its view of the scene of the crime was not "evidence" in the case and should not be considered as such. A "scene view" is not "evidence" in a case. See Jordan v. State, 247 Ga. 328, 345, 276 S.E.2d 224 (1981); McDaniel v. State, supra 248 Ga. at 495(2), 283 S.E.2d 862. However, the record shows that appellant never requested that a charge to that effect be given. We know of no authority for the proposition that, having determined to grant the jury's request for a visit to the scene of a crime, the trial court must, on its own motion, instruct the jury that the view is not to be considered as "evidence." Moreover, appellant can demonstrate no harm as the result of the trial court's failure to give such a charge in this case. It is clear that the procedure under consideration was scrupulously conducted by the trial court under strict conditions as a "scene view." Appellant and counsel were all afforded the opportunity to be present, and there was no "danger of ' "the intentional gathering of extra judicial evidence, highly prejudicial to the accused, by members of the jury and the communication of that information to the other jurors in the closed jury room." ' [Cits.]" Forney v. State, supra 255 Ga. at 320(7), 338 S.E.2d 252. Compare Watkins v. State, 237 Ga. 678, 229 S.E.2d 465 (1976). The jury had already heard the testimony and seen the photographs and the view was carefully conducted so as merely "to aid the jury to better understand [that] evidence. This necessarily implies that the jurors [could] apply to the testimony the knowledge obtained by them in seeing the property or premises involved." Shahan v. American Tel., Co., etc., 72 Ga.App. 749, 756-757(3), 35 S.E.2d 5 (1945). Accordingly, error, if any, in the trial court's failure to give the instruction on its own motion was harmless in this case.

It is urged that, after the scene view had been conducted, defense counsel was not afforded an opportunity to make additional argument before the jury. Nothing in the record shows that counsel ever requested such an opportunity. Assuming without deciding that the conduction of the scene view was occasion for reargument, in the absence of a request to reargue there would be no error. Cf. Daniels v. State, 137 Ga.App. 371, 373(4), 224 S.E.2d 60 (1976); Blackmon v. State, 158 Ga.App. 665, 667(2), 281 S.E.2d 634 (1981), overruled on other grounds, Luck v. State, 163 Ga.App. 657, 295 S.E.2d 584 (1982).

3. In support of her motion for new trial, appellant offered the affidavit of one of the jurors. The trial court's refusal to consider the affidavit is enumerated as error. Although OCGA § 17-9-41 prohibits the impeachment of a verdict by the affidavit of a juror, appellant urges that this statutory proscription would not apply here. According to appellant, the juror's affidavit that she submitted concerned "the intentional gathering of extra judicial evidence." Watkins v. State, supra 237 Ga. at 685, 229 S.E.2d 465.

Appellant's reliance upon Watkins v. State, supra, is misplaced. The affidavit states only that, after the scene view, some of the jurors had concluded, based upon their observations at the crime scene, that appellant's testimony had been false in some respects. That some jurors undertook to use the judicially sanctioned scene view for the very purposes intended would not demonstrate the proscribed intentional gathering of extra judicial evidence condemned in Watkins v. State, supra. See Forney v. State, supra 255 Ga. at 320(7), 338 S.E.2d 252. The jurors were clearly authorized to construe appellant's testimony in light of their judicially authorized and supervised observation of the crime scene. Any juror was free to share his own observations of the crime scene and his conclusions reached as the result of those observations with the other jurors. Each juror, having himself visited the crime scene, was free to accept or reject the observations and conclusions expressed by any other. The affidavit shows only that the jurors acted as jurors after a judicially sanctioned scene view and does not show that any juror acted as an "unsworn witness against appellant" as to any finding resulting from an unauthorized visit to the scene of the crime. Watkins v. State, supra 237 Ga. at 684, 229 S.E.2d 465. See also Forney v. State, supra 255 Ga. at 320(7), 338 S.E.2d 252. If one juror now has doubts about her own observations or conclusions or about those that were expressed by any other juror, the verdict cannot be impeached on that basis. The trial court did not err in refusing to consider the affidavit.

4. Over appellant's hearsay objection, the trial court admitted certain testimony by a police officer, ruling that the testimony came within the hearsay exception for explaining conduct. The trial court's ruling is enumerated as error.

If the officer's conduct was itself relevant, the testimony was admissible to explain it. See Momon v. State, 249 Ga. 865, 294 S.E.2d 482 (1982). The officer's conduct was the submission of the fingerprints of an individual other than appellant for comparison with those found on the knife. This conduct was relevant to the issues on trial in this case. The...