Jones v. State, 76600

• Decision Date: 10 November 1988
• Docket Number: No. 76600,76600
• Citation: 375 S.E.2d 648,189 Ga.App. 232
• Parties: JONES v. The STATE.
• Court: Georgia Court of Appeals

Page 648

375 S.E.2d 648

189 Ga.App. 232

JONES v. The STATE.

No. 76600.

Court of Appeals of Georgia.

Nov. 10, 1988.

Cramer, Weaver & Edwards, Christopher C. Edwards, Griffin, for appellant.

Johnnie L. Caldwell, Jr., Dist. Atty., J. David Fowler, Asst. Dist. Atty., for appellee.

BEASLEY, Judge.

Jones appeals his convictions and sentences for four counts of cruelty to children, OCGA § 16-5-70. He alleges errors in both his competency trial and in the trial of the offenses.

1. Jones contends in two enumerations that the court erred in the competency trial in refusing a requested mistrial after it twice allegedly commented improperly and prejudicially on the evidence. This was in regard to psychologist Grigsby, who was called as the State's expert.

The first instance occurred after the State's foundation evidence and offer of Grigsby as an expert in clinical and forensic psychology. Defendant's counsel cross-examined the witness and objected to his acceptance by the court as a forensic psychologist. In the course of that cross-examination, Grigsby volunteered: "For 11 years, courts throughout Georgia have accredited me as an expert witness." Counsel replied: "I'm not asking you that. Whether some other court's done it or not, ..."

Counsel at the same time objected to Grigsby's acceptance as an expert because he was a State employee and thus biased.

In overruling the objection, the court explained: "I have qualified Dr. Grigsby as an expert in the field of both clinical and forensic psychology in the past. I will do so at this time. I have heard Dr. Grigsby testify more than once, and I've heard him testify on both sides of the issue. I don't believe this witness is biased, and I will overrule that objection, and we'll let the record reflect that he can testify as an expert in the fields of clinical and forensic psychology."

Later, during cross-examination, defendant's counsel sought to discredit Grigsby's opinion of competency by eliciting admissions that he worked for the State and was paid by the State. The court stopped his pursuit of this line of questioning, saying: "Just a moment ... Let me remind you, I draw a paycheck from up there, too. Now, I'm not going to allow you to pursue this."

Defendant had a right to thoroughly and siftingly cross-examine the witness called against him. OCGA § 24-9-64. An issue during this competency phase was the credibility of the expert. Should the jury believe Dr. Grigsby and accept his opinion, or not? Defendant's witnesses, including his former attorney, had testified that defendant was not competent. Credibility was of course a jury matter, OCGA § 24-9-80, as the court subsequently instructed it. The court also properly instructed that the weight to be given expert testimony is to be determined by the jury. OCGA § 24-9-67; Moses v. State, 245 Ga. 180, 181, 263 S.E.2d 916 (1980). The expert's credentials are relevant to the weight and credit to be given by the jury to his testimony. McCoy v. State, 237 Ga. 118, 119, 227 S.E.2d 18 (1976).

Here the court added the influence of its personal opinion on the expert status of Dr. Grigsby and on the credibility of his testimony. In addition, it cast a cloak of impartiality on that witness, by identifying him in common with the court as a State-paid employee, implying that since the court was unbiased even though paid by the State, so must Dr. Grigsby be.

The court is precluded by law from expressing or intimating opinion as to matters proved or not proved and as to guilt. OCGA § 17-8-57. Whether the witness was biased by employment was an issue, as was the value of his opinion as an expert. The purpose of forbidding comment is to keep the jury from being influenced by the judge, Morton v. State, 132 Ga.App. 329, 330(1), 208 S.E.2d 134 (1974), so as to preserve inviolate the right of trial by jury, Crawford v. State, 139 Ga.App. 347, 228 S.E.2d 371 (1976). "The credibility and standing of the witness is an issuable fact in every case--a most material fact. Therefore, anything which tends to uphold, to support, to disparage, or to lower the character and the resulting credibility of the witness is vitally connected with the facts of the case...." Cole v. State, 6 Ga.App. 798, 799, 65 S.E. 839 (1909).

Even though unintentional, the court stepped over the line between explaining its ruling and intimating its opinion on issues which were the sole province of the jury. See Taylor v. State, 2 Ga.App. 723, 729(3), 59 S.E. 12 (1907) regarding the latter. Compare the instant case with Collins v. State, 143 Ga.App. 583, 586(3), 239 S.E.2d 232 (1977) overruled in part on other grounds Plemons v. State, 155 Ga.App. 447, 452(9), 270 S.E.2d 836 (1980), reconsidered in Barnes v. State, 157 Ga.App. 582, 585(2), 277 S.E.2d 916 (1981), and Patrick v. State, 245 Ga. 417, 421(4), 265 S.E.2d 553 (1980), vacated and remanded for reconsideration in light of Godfrey v. Ga., 446 U.S. 420, 100 S.Ct. 1759, 64 L.Ed.2d 398 (1980); Patrick v. Georgia, 449 U.S. 988, 101 S.Ct. 522, 66 L.Ed.2d 285 (1980), vacated death penalty 247 Ga. 168, 274 S.E.2d 570 (1981), 249 Ga. 708, 293 S.E.2d 329 (1982).

Defendant is entitled to a new trial on competency. If he is found competent, the convictions will stand for the reasons stated hereafter in our analysis of the enumerated errors related to trial of the offenses, and a new judgment shall be entered thereon. However, he will be entitled to appeal anew from the new judgment as it relates to the verdict of competency.

2. Appellant contends the trial court erred in not granting mistrials because it failed to give him adequate funds before the trials to allow an independent psychologist to complete psychological testing and to be present at every phase of both the competency and guilt trials as required under Ake v. Oklahoma, 470 U.S. 68, 105 S.Ct. 1087, 84 L.Ed.2d 53 (1985). He further contends that even if the granted funds were adequate, the court violated Ake by not allowing him sufficient time to complete the desired testing.

Prior to arraignment, Jones' appointed counsel filed a petition for psychiatric evaluation by a psychiatrist to determine whether Jones was competent to stand trial and to determine Jones' mental state at the times of the charged offenses. Counsel also filed a notice of intent to raise the defense of insanity or mental incompetence.

An unexpected professional conflict arose, resulting in the appointment of new counsel. The latter filed numerous motions including one under Ake. He sought adequate funds to have psychiatric and psychological experts of his choosing consult with and examine defendant and investigate as necessary, to determine whether he was able to form the legal intent for criminal responsibility, to determine whether he was insane or suffering delusional compulsion, and to show mitigating circumstances should he be convicted.

Counsel also filed another notice of intent to raise the defense of insanity or mental incompetence, a plea of insanity, and a special plea of incompetency to stand trial and a motion for transfer of the defendant to the Department of Human Resources under OCGA § 17-7-130.

The trial court ordered that the Department conduct an evaluation of Jones at public expense with respect to defendant's competency to stand trial and his degree of criminal responsibility or mental competence at the time of the act. Dr. Grigsby conducted the ordered evaluation.

Defense counsel moved ex parte to provide funds for expert assistance under Ake. Supporting the motion was counsel's affidavit which gave his opinion that Jones had a meritorious defense in his plea of insanity. The facts underlying the opinion included: Jones had related that he was severely physically abused by his father. Jones had related that his will was sometimes uncontrollably subject to commands of God and the devil and that the acts alleged in the indictments were caused by such commands overpowering his will. Jones' mother believed that Jones was mentally retarded from an early age, made worse by chronic alcohol and drug abuse from late adolescence. The chief jailer had advised counsel that Jones definitely required psychiatric evaluation because he was suicidal. Counsel's review of the psychiatric records from West Central Georgia Hospital showed that Jones was, at least episodically, psychotic and heard commands from the devil. Jones' wife advised that Jones sought treatment for mental illness and chemical dependencies from the local "Personal Growth Center" after the crimes were committed but before arrest. Treatment was prevented by his arrest. Counsel's personal observation of Jones in jail interviews caused counsel to believe that Jones was of sub-normal intelligence, extremely unkempt, unclean, had low self-esteem, unpredictable mood swings, did not comprehend advice and statements made to him, and did not fully understand the nature of the proceedings against him as he believed the only outcome would be that he would be returned to the mental hospital. Jones appeared to be in a daze and despite counsel's attempts seemed unable to assist counsel in preparing his defense.

Defendant made no showing that an examination by Grigsby was or would be inadequate but contended that because Grigsby was a State-paid psychologist, it was probable that his testimony would be biased in favor of the State. After hearing, the court granted $500 for a psychologist of defendant's choice. Thereafter, defense counsel requested an additional $2000 to pay for further services of a chosen psychologist, Brooks, to consult with him and be present in court during trial. A supporting affidavit by Brooks stated that additional testing might be required depending upon the opinion of counsel. The $2000 request was denied. Defense counsel advised the court that Brooks charged $100 for consultation. The court granted defendant an additional $100, and permitted defense counsel, if he so chose, to...