Hurt v. State, 32330

• Citation: 238 S.E.2d 542,239 Ga. 665
• Decision Date: 08 September 1977
• Docket Number: No. 32330,32330
• Parties: Otis HURT, Jr. v. The STATE.
• Court: Supreme Court of Georgia

Page 542

238 S.E.2d 542

239 Ga. 665

Otis HURT, Jr. v. The STATE.

No. 32330.

Supreme Court of Georgia.

Sept. 8, 1977.

Rehearing Denied Sept. 27, 1977.

[239 Ga. 673] Donald W. Huskins, Eatonton, for appellant.

Joseph H. Briley, Dist. Atty., Grey, Arthur K. Bolton, Atty. Gen., Kirby G. Atkinson, Asst. Atty. Gen., Atlanta, for appellee.

BOWLES, Justice.

Appellant, Sidney Farley and Willie James Paul, were jointly indicted by the Grand Jury of Putnam County, Georgia for the separate offenses of rape and murder of one Charlotte Cutwright. Co-defendant Paul filed a motion for severance which was granted. Appellant and Farley were tried together and were found guilty by a jury of both offenses. Appellant received a life sentence for murder and a 20-year sentence for rape to run consecutively. From the judgment and sentence he appeals to this court.

RESUME OF THE FACTS

The victim, Charlotte Cutwright, estimated to be between 60 and 66 years of age, moved into a new house in Eatonton, Putnam County, Georgia on May 21, 1976. Several neighbors and friends were in and about the house during the day helping her to move. That evening, Mary Cutwright, a granddaughter, left her grandmother's house accompanied by two friends, George and William Reese. Remaining at the house at the time were the victim, William James Paul, Al Banks and Leon Hurt, appellant's brother. Later that evening George Reese and Mary Cutwright picked up appellant and co-defendant Sidney Farley, and dropped them off near the house. They both indicated they wanted to visit the deceased. Some time after midnight George Reese and Mary Cutwright returned to Charlotte Cutwright's house where they encountered Farley who said he could not awaken the deceased. Upon investigation they found the deceased lying diagonally on the bed with her clothes pulled up. They could find no pulse at the time. Several witnesses indicated that a cap seen lying on the bed belonged to the defendant Farley. The police were summoned.

Leon Hurt and Allen Banks testified that after Mary Cutwright left with George and William Reese, the co-defendant Willie James Paul sent them to get some liquor. When they returned a short time later they saw appellant standing in the yard and co-defendant Farley inside the screen door. When Leon Hurt attempted to enter the house with the liquor Farley tried to push him back. Additionally, appellant tried to keep the two witnesses from entering the house. Leon Hurt and Allen Banks entered the house anyway where they saw Willie James Paul in bed with Charlotte Cutwright. They testified to the facts which indicated that defendant Paul had just completed an act of intercourse with the deceased. There was testimony that the victim was moaning at that time. Defendant Paul was seen walking away laughing and co-defendant Farley was heard to say that he was second. The victim was later found to be dead. An autopsy was performed on Dr. James Dawson, who qualified as an expert, gave his opinion that the cause of death was shock, based on fluid in her lungs, the accumulation of blood in various organs and other physical facts determined in the autopsy. He explained that shock could be brought on by loss of body fluid, severe pain or an extreme emotional state or fear of pain. He pointed out that the victim defecated before death which comes as a result of extreme pain in many cases. Fecal material was found on a pair of pants which appellant was wearing when arrested. The victim had a blood alcohol content of .23 per cent at death.

her person revealing lacerations on the inside of her labia majora, tears in the [239 Ga. 667] skin of the perineum, tears in the back wall of the vaginal canal, contusions, bruising and ecchymotic hemorrhaging of the entire circumference of the vaginal organs. There was considerable blood on her clothing.

Appellant and Farley made separate statements to separate GBI agents, in separate rooms, at approximately the same time in the early morning of the following day. A Jackson v. Denno hearing was held to determine the voluntariness of those statements. Following that hearing, one of the investigating officers testified that the appellant freely and voluntarily made the following statement: "Earlier tonight Willie James Paul and I went to Charlotte Cutwright's house after dark. When we arrived she was lying on the bed asleep. She did not have any panties on. Willie James Paul got on her first and then I did. She was hollering for us to get off, she had awakened up. After I got off of her, Willie James Paul got on her again. Leon Hurt and Al Banks were watching while Willie James was on top of her. She went to sleep while Willie James was on her a second time."

Farley gave a similar statement to another officer which differed only in that Farley stated the victim was not moving while the three men had intercourse with her.

The defense contended that appellant and Farley were mentally retarded and could have been easily led into making their statements to the officers. Defendants introduced at both the Jackson v. Denno hearing, and at the trial, the testimony of several witnesses in regard to their inability to read, understand, or waive rights.

ENUMERATION OF ERRORS

1. Appellant's enumerations numbered 1, 2 and 12 complain that the verdict is contrary to law, contrary to the evidence, and the trial court erred in overruling appellant's motion for a directed verdict of acquittal at the conclusion of the state's evidence.

While the evidence is not conclusive of the defendant's guilt, it is sufficient. The jury trying the case, from the evidence presented, could conclude that the victim died from shock caused by fear and extreme pain inflicted upon her person. They could conclude the victim was asleep when raped and woke up. They could conclude that she had been raped from the physical facts illustrated by the injuries to her person. They could also conclude that two or more of the parties involved were acting in concert, when they had intercourse with her in turns and when two attempted to keep witnesses out of the house on or about the time of the occurrence. This court does not pass on the weight of the evidence but on the sufficiency thereof to sustain the verdict. Ridley v. State, 236 Ga. 147, 223 S.E.2d 131 (1976); Strong v. State, 232 Ga. 294, 206 S.E.2d 461 (1974); Ingram v. State, 204 Ga. 164, 48 S.E.2d 891 (1948). If there is any evidence to support the findings of the jury, and no error of law appears the verdict and judgment should not be disturbed. Mitchell v. State, 236 Ga. 251, 257, 223 S.E.2d 650 (1976); Bethay v. State, 235 Ga. 371, 219 S.E.2d 743 (1975); Proveaux v. State, 233 Ga. 456, 211 S.E.2d 747 (1975). We must view the evidence in the light most favorable to the verdict rendered. Johnson v. State, 231 Ga. 138, 139, 200 S.E.2d 734 (1973). On the question of raping a sleeping female, see Brown v. State, 138 Ga. 814, 76 S.E. 379 (1912).

2. Appellant's enumeration no. 3 contends that the trial court erred in admitting into evidence, over timely objection, the purported confession of appellant obtained by one of the investigating officers, claiming that the confession was illegally obtained in derogation of appellant's constitutional rights.

The trial court held a separate Jackson v. Denno hearing regarding the admissibility of the purported confession. Appellant contends that the burden rests on the State to demonstrate clearly that the defendant knowingly and intelligently waived his privilege against self-incrimination and his right to counsel. With this we find no argument. At such a hearing, the state is required to show voluntariness only by a preponderance of the evidence. High v. State, 233 Ga. 153, 210 S.E.2d 673 (1974); Pierce v. State, 235 Ga. 237, 219 S.E.2d 158 (1975).

Once a trial court determines that a statement was freely and voluntarily given in compliance with the requirements of Jackson v. Denno, 378 U.S. 368, 84 S.Ct. 1774, 12 L.Ed.2d 908 the court may properly allow the statement into evidence. House v. State, 232 Ga. 140, 205 S.E.2d 217 (1974); Callahan v. State, 229 Ga. 737, 194 S.E.2d 431 (1972); Wilson v. State, 229 Ga. 395, 191 S.E.2d 783 (1972).

Fact findings and credibility findings in regard to admissibility of such a statement based on voluntariness, made by a trial judge must be accepted by this court unless such determinations are clearly erroneous. Johnson v. State, 235 Ga. 486(6), 220 S.E.2d 448 (1975). The record is devoid of any threats, promises, coercion or other improper conduct which would void the statement. On the contrary, there was testimony from the GBI agent involved, that all actions were strictly voluntary on the part of the defendant. The question left is whether or not the defendant was capable or incapable of making a knowing and intelligent waiver of his rights. The defendant was present in court during all the proceedings, and the trial judge could observe his actions and his demeanor. The GBI agent testified that appellant signed a waiver of counsel form after he had explained the terms of the form to him. The agent also discussed the meaning of a waiver of a lawyer with him and defendant raised the question as to whether or not signing this waiver, would prevent him from having a lawyer when the case was tried. At the time, defendant was 17 years of age, appeared to understand his rights and was not under the influence of any drugs. Defendant looked over the waiver form but said he couldn't read very well, so the agent read the form to him. At the time the agent did not know what had occurred at the victim's home that night, and appellant was asked to relate the events that had occurred, which he readily did. Agent Harris testified that appellant appeared to understand the questions asked. When Agent Harris informed defendant that he could have an attorney immediately, he responded "stated that he had talked to me without one." In...