Johnson v. State

• Decision Date: 09 June 1970
• Docket Number: No. 25811,25811
• Citation: 226 Ga. 511,175 S.E.2d 840
• Parties: Edward JOHNSON v. The STATE.
• Court: Georgia Supreme Court

Page 840

175 S.E.2d 840

226 Ga. 511

Edward JOHNSON v. The STATE.

No. 25811.

Supreme Court of Georgia.

June 9, 1970.

Rehearing Denied June 25, 1970.

Syllabus by the Court

1. The court properly excused jurors who stated on voir dire that they would not inflict the death penalty without regard to any evidence that might be developed in the case.

2. It was not error to admit in evidence photographs of the naked body of the deceased, although the defendant had stipulated everything the photographs would show.

3. It was not improper for the trial court, on the motion of the district attorney, to reopen the case and allow the introduction of evidence of the confession of the defendant, after both sides had closed, where the witness for the defendant had testified as to statements made to him by the defendant, which were contradictory of statements made by the defendant in his confession.

4. There was no evidence that the confession of the defendant was not voluntary; thus it was properly admitted in evidence.

5. In the absence of any objection to argument of the district attorney, the trial court did not err in not reprimanding him, nor in failing to declare a mistrial.

6. It was not error for the trial court to fail to charge on delusional insanity, where there was no evidence that the defendant was suffering from delusional insanity at the time of the commission of the crime.

7. It was not error for the court to submit to one jury the issues of guilt or innocence and punishment.

8. The general grounds and several special grounds of the motion for new trial were not argued and are considered abandoned.

Glenn Zell, Atlanta, for appellant.

Lewis R. Slaton, Dist. Atty., Carter Goode, J. Melvin England, Tony H. Hight, Arthur K. Bolton, Atty. Gen., Harold N. Hill, Jr., Executive Asst. Atty. Gen., Marion O. Gordon, William R. Childers, Jr., Asst. Attys. Gen., Atlanta, for appellee.

MOBLEY, Presiding Justice.

The defendant (appellant here) was indicted for murder, was tried and convicted without recommendation, and sentenced to death. The appeal is from the denial of his motion for new trial, as amended, which is enumerated as error. Nine other assignments of error are made.

1. The trial court excused 16 jurors for cause on the ground that they would not inflict the death penalty regardless of the evidence. The defendant contends that the answers of five of them on voir dire did not justify their being excused.

Their answers make it unmistakably clear that they would automatically vote against the imposition of capital punishment without regard to any evidence that might be developed in the case. Under Witherspoon v. Illinois, 391 U.S. 510, 88 S.Ct. 1770, 20 L.Ed.2d 776; and Whisman v. State, 224 Ga. 793, 164 S.E.2d 719, the jurors were disqualified to sit as jurors in the trial of the case.

There is no merit in enumerations of error 1, 2, and 3, all of which involve the question of disqualification because each juror could not impose the death sentence under any circumstances.

2. Enumeration of error 4 alleges that the court erred in admitting in evidence, over objection, pictures of the deceased, who was naked and wearing a death mask, on the grounds that it would inflame the minds of the jury, and that it was unnecessary because he stipulated everything the pictures would show.

Applicable here is the ruling of this court in Bryan v. State, 206 Ga. 73, 74, 55 S.E.2d 574, that photographs showing an accurate representation of an object which is material to the issue are admissible, that the location of wounds is material to the issue in a homicide case, and that photographs should not be excluded because there is other testimony as to the location of the wounds, since to do so would preclude the State from establishing a fact by more than one source of evidence. The Bryan case was cited in Hill v. State, 211 Ga. 683(3), 88 S.E.2d 145.

The photographs were admissible to show the condition of the body of the deceased and the nature and extent of his wounds, and were used to illustrate medical testimony as to the cause of death of the deceased. They were not inadmissible because they might inflame the jury, as they were relevant and material to the issue. See Manor v. State, 223 Ga. 594(5), 157 S.E.2d 431.

This ground is without merit.

3. Enumeration of error 5 makes the contention that the State, after resting its case, may not on rebuttal introduce an oral confession of the defendant made to an officer, when the defense raised only the question of insanity of the defendant.

A psychiatrist, a witness for the defendant, testified as to the mental condition of the defendant. In doing so, he recounted statements of the defendant which were in conflict with his confession. The State offered the confession to rebut statements made by the defendant to the doctor.

The trial judge has a wide discretion in the handling of the trial, and it was not error to permit the State to reopen its case. Mobley v. State, 221 Ga. 716(4), 146 S.E.2d 735. This court in Bigelow v. Young, 30 Ga. 121(3), held: 'It is within the discretionary power of the court to allow a witness to be sworn, after the evidence on both sides has been announced closed, and the argument has been commenced; and a liberal practice in this respect is most favorable to the ends of justice.' In Burden v. State, 182 Ga. 533, 534(3), 186 S.E. 555, it was held that it was not error for the court to reopen the case and allow the State to introduce additional evidence even though the evidence was not in rebuttal. See Britten v. State, 221 Ga. 97, 100(4), 143 S.E.2d 176, and citations.

It was not error to admit the testimony of the officer in rebuttal after the State had closed its case.

4. Enumeration of error 6 contends that the confession was not voluntary and it was error to admit it in evidence.

The trial court held a hearing outside the presence of the jury to determine its voluntariness before introduction of the confession as required by Jackson v. Denno, 378 U.S. 368, 84 S.Ct. 1774, 12 L.Ed.2d 908, 1 A.L.R.3d 1205. The defendant's counsel admits that the detective conformed to the procedure required in Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694, 10 A.L.R.3d 974. Moody v. State, 224 Ga. 301, 161 S.E.2d 856; Griffith v. State, 116 Ga.App. 429, 157 S.E.2d 894.

There is no evidence supporting the defendant's contention that the confession was not voluntary. This ground is without merit.

5. Enumeration of error 7 complains that the court erred in not declaring a mistrial because of prejudicial remarks made by the district attorney in his closing argument to the jury to the effect that the defendant, if given a life sentence, may jeopardize someone else's life, that the defendant may kill again, and that the defendant will kill anybody and may kill you or a member of your family.

The defendant made no objection to the argument or motion for mistrial. 'It has been held by this court many times that, when improper argument is made to the jury by an attorney for one of the parties, it is necessary, in order to make the same a basis for review, that opposing counsel make proper objection to it at the time made or invoke some ruling or instruction from the court respecting it, either by way of reprimanding counsel, or of instructing the jury to disregard it, or of declaring a mistrial. A party cannot during the trial ignore what he thinks to be an injustice, take his chance on a favorable verdict, and complain later. Code, § 81-1009; Croom v. State, 90 Ga. 430, 17 S.E. 1003; Farmer v. State, 91 Ga. 720, 18 S.E. 987; Kearney v. State, 101 Ga. 803, 29 S.E. 127, 65 Am.St.Rep. 344; O'Dell v. State, 120 Ga. 152, 155, 47 S.E. 577; Benton v. State, 185 Ga. 254, 194 S.E. 166; Mims v. State, 188 Ga. 702, 4 S.E.2d 831; Brooks v. State, 183 Ga. 466, 188 S.E. 711, 108 A.L.R. 752.' Joyner v. State, 208 Ga. 435, 438, 67 S.E.2d 221, 224; Moore v. State, 222 Ga. 748, 755, 152 S.E.2d 570.

In the absence of any objection to the argument complained of, the trial court did not err in not reprimanding the district attorney or declaring a mistrial. Cochran v. State, 213 Ga. 706(2), 100 S.E.2d 919; Moseley v. Moseley, 214 Ga. 137(...