Jones v. State, 76600

CourtUnited States Court of Appeals (Georgia)
Writing for the CourtJohnnie L. Caldwell, Jr., Dist. Atty.; BEASLEY; BIRDSONG
Citation375 S.E.2d 648,189 Ga.App. 232
PartiesJONES v. The STATE.
Docket NumberNo. 76600,76600
Decision Date10 November 1988

Page 648

375 S.E.2d 648
189 Ga.App. 232

No. 76600.
Court of Appeals of Georgia.
Nov. 10, 1988.

Page 649

[189 Ga.App. 239] Cramer, Weaver & Edwards, Christopher C. Edwards, Griffin, for appellant.

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

[189 Ga.App. 232] 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 [189 Ga.App. 233] 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

Page 650

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 [189 Ga.App. 234] 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

Page 651

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 [189 Ga.App. 235] gave his opinion that Jones had a meritorious defense in his plea of insanity. The facts underlying...

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  • Rouse v. State
    • United States
    • Supreme Court of Georgia
    • 17 Noviembre 2014
    ...OCGA § 17–8–57 because it could be construed as a comment regarding a required element of the State's case. Id. See Jones v. State, 189 Ga.App. 232(1), 375 S.E.2d 648 (1988) (fact that court did not intend to express opinion about issue within province of jury did not excuse violation of OC......
  • Watson v. State, S04A1098.
    • United States
    • Supreme Court of Georgia
    • 8 Noviembre 2004
    ...efficacy of defense counsel's cross-examination. Compare Jordan v. State, 259 Ga.App. 551, 578 S.E.2d 217 (2003) with Jones v. State, 189 Ga.App. 232(1), 375 S.E.2d 648 6. Watson asserts he was denied a fair trial in view of the sum total of the trial court's comments on the evidence. This ......
  • In re Interest of K. S., A16A2213
    • United States
    • United States Court of Appeals (Georgia)
    • 23 Enero 2019 the original evaluation, which resulted in a finding of competency and the absence of any serious mental disorder"); Jones v. State , 189 Ga. App. 232, 237 (2), 375 S.E.2d 648 (1988) (defendant not entitled to "funds for alternate expert assessment and assistance," where defendant failed......
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    • United States
    • Supreme Court of Georgia
    • 24 Septiembre 2007
    ...charges), notwithstanding the trial court's lack of intent to express an opinion on the evidentiary issue of venue. See Jones v. State, 189 Ga.App. 232(1), 375 S.E.2d 648 (1988) (fact that trial court did not intend to express its opinion on issue within sole province of jury does not excus......
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