Kellar v. State, 25721
| Decision Date | 09 June 1970 |
| Docket Number | No. 25721,25721 |
| Citation | 226 Ga. 432,175 S.E.2d 654 |
| Parties | Richard Travis KELLAR v. The STATE. |
| Court | Georgia Supreme Court |
Richard T. Keller, pro se.
William VanDyke, Atlanta, for appellant.
Lewis R. Slaton, Dist. Atty., Tony H. Hight, Joel M. Feldman, 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.
Syllabus Opinion by the Court
1. Richard Travis Kellar was convicted of robbery by using an offensive weapon and sentenced to twenty years in prison. In the enumeration of errors filed with his appeal to this court he enumerates seven grounds of alleged error, the nature of which will sufficiently appear from the opinion. Grounds 1 and 2 complain of the refusal of the court to sustain the defendant's objection to the testimony of the defendant's wife offered by the State. Defendant argues in substance that while one spouse is, since the 1957 amendment to Code § 38-1604 (Ga.L.1957, p. 53), competent to testify against the other, the wife, without first expressly waiving her privilege to refuse to testify, cannot testify against her husband over his objection. The privilege of refusing to testify belongs to the witness and not to the accused, and, where the witness voluntarily took the stand and testified, it will be presumed that she did so pursuant to a waiver of her privilege. James v. State, 223 Ga. 677, 683, 157 S.E.2d 471. There is no merit in the first two grounds of the enumerated error.
2. Counsel for the defendant moved for a mistrial on the ground that his client was brought into the presence of the jury while manacled. In response to that motion, the trial judge said, This is made the basis of defendant's third ground of enumerated error. It does not appear from anything else shown by the record that the defendant was in fact brought before the jury while handcuffed. Under these circumstances, no harmful or reversible error is shown by the record, and the third ground of enumerated error is without merit.
3. At the close of the State's case against the defendant a colloquy ensued between the court and the defendant. In substance, the defendant asked the permission of court to 'fire' his attorney who had been appointed on the ground that the attorney was incompetent. The court refused to grant this request and, in turn, requested the attorney to continue to counsel with the defendant and directed the defendant, if he wished, to conduct his own defense. The court then asked the defendant if he wished to put up any evidence but the defendant declined to do so, stating that he objected to the trial, that he was an incompetent person and that he did not understand or know the nature of the charge against him. After the defendant had declined to put up any evidence or to make a statement, the court directed him to 'go to the jury,' that is, to make his opening argument to the jury. The defendant refused to make any opening or closing argument, but merely stated again that he objected to the trial but did not waive any of his rights. Counsel for the defendant, who was appointed to prosecute this appeal, contends that this 'argumentative discussion between the court and defendant in the presence of the jury prohibited defendant from obtaining a fair and impartial trial.' However, no motion for a mistrial or other ruling of the court was invoked, and since this...
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Putnal v. State
...S.E.2d 861 (discussing the trial court’s discretion in addressing a defendant’s request for expert assistance); Kellar v. State, 226 Ga. 432, 433 (4), 175 S.E.2d 654 (1970) (stating that the trial court has "wide discretion" in regulating and controlling the court’s business, which will not......
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Clyatt v. State
...47 Ga.App. 430, 431(2), 170 S.E. 536; Neidlinger v. Mobley, 76 Ga.App. 599(1), 46 S.E.2d 747. The majority opinion cites Kellar v. State, 226 Ga. 432(2), 175 S.E.2d 654, as a 'similar case' where the unsworn statement of defendant's counsel was insufficient to warrant a mistrial. Please con......
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Merneigh v. State
...might have changed her mind at anytime before taking the stand. See James v. State, 223 Ga. 677, 683, 157 S.E.2d 471 and Kellar v. State, 226 Ga. 432(1), 175 S.E.2d 654. We know of no binding authority which requires the reversal of a criminal case merely because an otherwise competent witn......
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Colson v. State
...the majority opinion relied on two Supreme Court decisions, to wit, James v. State, 223 Ga. 677(1), 157 S.E.2d 471; and Kellar v. State, 226 Ga. 432(1), 175 S.E.2d 654. Neither case has any applicability whatever to the question here, and this but illustrates the fallacy of the Merneigh cas......