High v. State

• Decision Date: 24 February 1981
• Docket Number: No. 36689,36689
• Parties: Jose M. HIGH v. The STATE
• Court: Georgia Supreme Court

Page 5

276 S.E.2d 5

247 Ga. 289

Jose M. HIGH v. The STATE

No. 36689.

Supreme Court of Georgia.

Feb. 24, 1981.

[247 Ga. 298] John H. Ruffin, Jr., Augusta, for Jose Martinez High.

Kenneth E. Goolsby, Dist. Atty., Thomson, Arthur K. Bolton, Atty. Gen., for the State.

CLARKE, Justice.

The appellant, Jose Martinez High, was tried by a jury in the Superior Court of Taliaferro County for the offenses of murder, two counts of kidnapping with bodily injury, armed robbery, possession of a firearm during the commission of a crime and aggravated assault. He was convicted of all charges and sentenced to death for armed robbery, murder and two counts of kidnapping. The appellant was also sentenced to five years imprisonment on the charge of possession of a firearm during the commission of a crime and ten years imprisonment on the aggravated assault charge. The case is here on direct appeal and for mandatory review of the death sentences imposed. The facts surrounding the crimes charged and the death of the young victim are amply set out in the companion case of Ruffin v. State, 243 Ga. 95, 252 S.E.2d 472 (1979), and will not be repeated here.

ENUMERATIONS OF ERROR

1. The defendant was not denied due process of law as claimed by the preemptory striking of some black potential traverse jurors. Swain v. Alabama, 380 U.S. 202, 85 S.Ct. 824, 13 L.Ed.2d 759 (1965); Taylor v. State, 243 Ga. 222, 253 S.E.2d 191 (1979), see also Willis v. State, 243 Ga. 185, 253 S.E.2d 10 (1979); Jones v. State, 243 Ga. 820, 256 S.E.2d 907 (1979). ¹

2. Appellant's attorney upon motion sought funds to hire investigators and obtain expert witnesses. The only evidence presented by the appellant in support of his motion was as to the size of the district attorney's staff, the resources available to the district attorney, and the amount of salaries paid to the district attorney and his 3. Thirty-two potential jurors of appellant's race were excluded for cause under Witherspoon during the voir dire process. Appellant moved for a continuance to secure additional members of his race for possible jury service. The trial court denied the motion and the appellant asserts error.

staff. The state presented evidence that the appellant was represented by a retained attorney who was assisted by two paid law student interns supplied by the Southern Poverty League. Expert testimony was not crucial to the state's case and no showing was made as to the need for expert testimony on behalf of the appellant. "The [247 Ga. 290] granting or denial of a motion for appointment of expert witnesses lies within the sound discretion of the trial court and unless there has been an abuse of discretion, the trial court's ruling would be upheld." Patterson v. State, 239 Ga. 409(3), 238 S.E.2d 2 (1977). The appellant has made no showing of prejudice and his second enumeration is therefore without merit. Whitaker v. State, 246 Ga. 163, 269 S.E.2d 436 (1980).

When it became apparent that it was necessary to impanel additional jurors because of the number of jurors who were challenged for cause, the trial court drew additional names from the jury box to fill the deficit. Appellant makes no contention that the persons selected were not competent veniremen properly drawn to sit on the panel. Nor does he contend that the jury list was improperly constituted. "A defendant is entitled to array of properly drawn impartial jurors to which he may direct his preemptory challenges. Franklin v. State, 245 Ga. 141, 263 S.E.2d 666 (1980). A party is entitled to this as a matter of right; but, conversely, he is entitled to no more." Dampier v. State, 245 Ga. 427, 265 S.E.2d 565 (1980). Appellant's third enumeration is without merit. Taylor v. Louisiana, 419 U.S. 522, 95 S.Ct. 692, 42 L.Ed.2d 690 (1975).

4. In his fourth enumeration of error, the appellant contends that the trial court erred in failing to grant his motion for new trial. We do not agree.

We find upon review of the evidence in light most favorable to the verdict, a rational trier of fact could have found the essential elements of the crimes beyond a reasonable doubt. Jackson v. Virginia, 443 U.S. 307, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979). Sentence review ante. At trial, the surviving victim, Henry Phillips positively identified the defendant as being one of the three persons who robbed the gasoline station and subsequently shot him and his stepson. The witness testified that the appellant was the person who pointed a pistol in his face immediately after the three robbers drove into the station and asked for gas. He further testified that the station was well lit.

The appellant contends that the trial court erred in permitting the witness to identify the defendant at trial in that an adequate basis for determining the reliability of such identification was lacking. He bases this contention upon the witness' wearing of glasses and excited state during the crime. However, these factors go to the witness' credibility and the weight of his testimony and not to the admissibility of his testimony. See Watkins v. Sowders, --- U.S. ----, 101 S.Ct. 654, 66 L.Ed.2d 549 (1981); Gresham v. State, 246 Ga. 574, 272 S.E.2d 308 (1980). The record in this case simply does not support a contention that the identification procedure was impermissibly suggestive. Thomas v. State, 245 Ga. 688, 267 S.E.2d 253, (1980); McClesky v. State, 245 Ga. 108, 263 S.E.2d 146 (1980); Burrell v. State, 239 Ga. 792, 239 S.E.2d 11 (1977).

5. At the call of the case and prior to a jury being impaneled but in the presence of the veniremen, the trial court ruled on the appellant's motion for in camera inspection. The trial court stated in its ruling that it found nothing exculpatory or favorable to the defendant in the files of the district attorney. Appellant then moved for a dismissal of the indictment or in the alternative to continue the case until such time as a new panel which had not heard the court's ruling could be obtained.

The court overruled the objection and instructed all members of the jury panel present in the courtroom that they were not to be concerned with the rulings of the court in that such rulings were not an expression of opinion by the court of the facts of the case.

The appellant argues that the ruling of the trial court amounted to an impermissible expression of opinion prohibited by Code Ann. § 81-1104. We do not agree. It is clear from the record that the trial judge was not expressing an opinion but ruling upon the motion which had been made by the appellant. Wright v. State, 223 Ga. 849, 159 S.E.2d 76 (1968). See Tucker v. State, 245 Ga. 68, 263 S.E.2d 109 (1980); Whisman v. State, 221 Ga. 460, 145 S.E.2d 499 (1965).

6. It is clear from the voir dire examination that the jurors excused for being conscientiously opposed to the death penalty were "irrevocably committed before the trial began to vote against the death penalty regardless of the facts and circumstances that might emerge in the course of the proceedings. Witherspoon v. Illinois, 391 U.S. 510, 88 S.Ct. 1770, 20 L.Ed.2d 776 (1968); Thomas v. State, 245 Ga. 688, 267 S.E.2d 253 (1980); Davis v. Georgia, 429 U.S. 122, 97 S.Ct. 399, 50 L.Ed.2d 399 (1977); Corn v. State, 240 Ga. 130, 240 S.E.2d 694 (1977).

While not raised as error, as in part of our independent review, we have noted that a juror was excused over objection by the trial court on the grounds that she was incompetent to serve. During voir dire, the prospective juror, in responding to the trial court's inquiry, stated that she could not understand the questions of a most elementary nature that were propounded by either the defense counsel or counsel for the state. It was evident that this juror could not understand the nature of the proceedings, and we find no error in the court upon its own motion excusing her. Code Ann. § 59-106. Welch v. State, 237 Ga. 665, 229 S.E.2d 390 (1976); Patterson v. State, supra. See Barrow v. State, 239 Ga. 162, 236 S.E.2d 257 (1977).

The appellant argues that the trial court erred in refusing to allow him to question each prospective juror on voir dire outside the presence of the other jurors. Such matters are necessarily within the sound discretion of the trial court. Finney v. State, 242 Ga. 582, 250 S.E.2d 388 (1978); Green v. State, 246 Ga. 598, 272 S.E.2d 475 (1980). We find upon review of voir dire that the trial court did not abuse its discretion in denying the appellant's motion especially in view of the trial court's instructions to the panel that the questions of counsel were merely aids in selecting an impartial jury and that members of the panel were to give no consideration whatsoever to what was said during voir dire, insofar as the trial of the case was concerned. Nor has the defendant shown "substantial prejudice" by the court's failure to allow sequestered voir dire. Duckworth v. State, 246 Ga. 636, 272 S.E.2d 332 (1980).

The appellant contends that the trial judge abused his discretion in limiting voir dire examination of prospective jurors. We do not agree. The trial judge upon proper objection refused to allow the examination of veniremen with regard to burden of proof, reasonable doubt and questions of evidence. These were technical legal questions and therefore prohibited. Stack v. State, 234 Ga. 19, 214 S.E.2d 514 (1975); Cobb v. State, 244 Ga. 344, 260 S.E.2d 60 (1979). Likewise, defense counsel was prohibited from asking questions which were attempts to obtain a prejudgment of his case, which is impermissible. Pinion v. State, 225 Ga. 36, 165 S.E.2d 708 (1969); Cobb v. State, supra.

The trial court did not err in allowing the state to qualify the prospective jurors as to kinship with the other two co-defendants. Contrary to appellant's argument, such qualification could not have prejudiced appellant as the participation of the co-defendants in the crime was a necessary part of the state's proof.

7. During opening argument, the district attorney...