Jessen v. State
| Decision Date | 01 July 1975 |
| Docket Number | No. 29974,29974 |
| Citation | 218 S.E.2d 52,234 Ga. 791 |
| Parties | Rusty JESSEN v. The STATE. |
| Court | Georgia Supreme Court |
John Timmins, Jr., Asst. Director, Legal Aid and Defender Society, Atlanta, Robert D. Peckham, Athens, Jack H. Affleck, law student, Atlanta, for appellant.
Harry N. Gordon, Dist. Atty., B. Thomas Cook, Jr., Stephen E. Curry, Athens, Arthur K. Bolton, Atty. Gen., Julius C. Daugherty, Jr., Staff Asst. Atty. Gen., Atlanta, for appellee.
Rusty Jessen appeals from a conviction and sentence of seven years for rape. He was indicted at the October Term, 1974, of Clarke Superior Court and tried before a jury on January 21, 22 and 23, 1975, which trial resulted in a mistrial. He was again brought to trial on February 27, 28, 1975, resulting in a verdict of guilty. Prior to the second trial the court overruled a plea of former jeopardy.
1. The appellant contends that the court erred in denying his plea of former jeopardy in that the trial court abused its discretion in declaring a mistrial without the appellant's consent.
The transcript of the record shows that the jury deliberated on the first trial for approximately one and a half days and on several occasions reported to the court that they were hopelessly deadlocked and unable to reach a decision. The court then declared a mistrial.
We have carefully examined the record in this case and conclude that the actions of the trial court clearly meet the test laid down by the United States Supreme Court in United States v. Perez, 22 U.S. (9 Wheat.) 579, 6 L.Ed. 165; Illinois v. Somerville, 410 U.S. 458, 93 S.Ct. 1066, 35 L.Ed.2d 425 (1973); and the more recent Georgia cases on this subject. See Jones v. State, 232 Ga. 324, 206 S.E.2d 481; Cameron v. Caldwell, 232 Ga. 611, 208 S.E.2d 441; and Wood v. State, 234 Ga. 759, 218 S.E.2d 47 (one Justice dissenting). The trial court did not abuse its discretion and this enumeration of error is without merit.
2. During the cross examination of the victim by appellant's counsel the victim testified that she had screamed and yelled at the appellant at the time of the incident. The following colloquy then took place:
'Q. You heard the testimony of the two witnesses yesterday who observed this who said that they . . . never heard anything other than moaning and low voices.
A. Well, the defendant also testified that I yelled at him.
The court: I didn't understand your answer.
A. I said the defendant testified that I yelled at him.'
The appellant contends that the jury was thus made aware that the appellant had testified previously concerning this case and was therefore placed in a position where he was forced to take the stand and testify in this proceeding. We do not agree with this contention.
In response to the appellant's motion for mistrial the court clearly instructed the jury that this statement was not responsive to the question, was volunteered by the witness, and instructed the jury that such statement was not admissible in evidence, was not to be considered by them, and that it should be removed from their minds as though it had not occurred and was to be disregarded altogether in the deliberations. We think these instructions removed any possibility of harm to the appellant's case as it is mere conjecture on the part of the appellant that such testimony 'compelled' him to testify against his wishes in this case. The appellant admitted intercourse with the victim and his sole defense was based upon his contention that it was with her consent and without force. The state's evidence on this issue, including statements by the victim and two eyewitnesses, could have only been successfully rebutted by the defendant's own testimony. This enumeration of error is without merit.
3. Two female witnesses on behalf of the state were allowed to testify over objection that several hours prior to the incident in question the appellant in another locality grabbed them and forced a kiss upon them. The appellant contends that this testimony was utterly immaterial and injected 'prejudicial matters tending to establish a 'rapist' state of mind on the part of the appellant.' The trial judge clearly limited the testimony of these witnesses to 'sexual overtones' by the appellant towards them. In our opinion this limited evidence was admissible under the line of cases allowing evidence of the...
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State v. Kendall, 77-146-CR
...v. Pruitt, 216 Kan. 103, 107, 531 P.2d 860, 863 (1975); White v. State, 23 Md.App. 151, 166, 326 A.2d 219, 228 (1974); Jessen v. State, 234 Ga. 791, 218 S.E.2d 52 (1975); Commonwealth v. Fredericks, 235 Pa.Super. 78, 340 A.2d 498 (1975); United States v. Beckerman, 516 F.2d 905 (2d Cir. 197......
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...(1974); Cameron v. Caldwell, 232 Ga. 611, 208 S.E.2d 441 (1974); Wood v. State,234 Ga. 758(1), 218 S.E.2d 47 (1975); Jessen v. State, 234 Ga. 791(1),218 S.E.2d 52 (1975); Code Ann. § As was stated by the court in United States v. Castellanos, 349 F.Supp. 720, 723 (E.D.N.Y.1972), rev'd 478 F......
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...jury in any felony case, the judge shall dismiss the jury . . . (and) impose the sentence . . .' This court held in Jessen v. State, 234 Ga. 791, 793, 218 S.E.2d 52 (1975) that the statute allows the trial judge to fix the sentence in a case in which the death penalty cannot be given. In Je......
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...armed robbery, and aggravated assault) were not overtly sexual, it is clear that the acts had "sexual overtones." Jessen v. State, 234 Ga. 791, 792(3), 218 S.E.2d 52. Moreover, the other crime was committed in the same vicinity and within a few hours of the criminal acts in question. Thus, ......