Lewis v. State
| Decision Date | 27 September 1977 |
| Docket Number | No. 32499,32499 |
| Citation | 238 S.E.2d 892,239 Ga. 732 |
| Parties | Frank LEWIS v. The STATE. |
| Court | Georgia Supreme Court |
Peugh & Bradley, James E. Peugh, Milledgeville, for appellant.
Joseph H. Briley, Dist. Atty., Gray, Arthur K. Bolton, Atty. Gen., Harrison Kohler, Asst. Atty. Gen., Atlanta, for appellee.
1. Lewis was convicted of armed robbery and kidnapping with bodily injury, and a jury, considering as an aggravating circumstance that the kidnapping was committed while Lewis was engaged in an armed robbery, awarded a death sentence for kidnapping and a consecutive life sentence for armed robbery. Code Ann. § 27-2534 (Ga.L.1970, pp. 949, 950; 1971, p. 902). The sentences were awarded prior to the recent decisions of the United States Supreme Court in Coker v. Georgia, 433 U.S. ----, 97 S.Ct. 2861, 53 L.Ed.2d 982 (decided June 29, 1977), and Eberheart v. Georgia, --- U.S. ----, 97 S.Ct. 2994, 53 L.Ed.2d 1104 (decided June 29, 1977), the latter case holding a death sentence for armed robbery or kidnapping may not be imposed for these crimes under present Georgia statutes where the victims are not killed. Consequently, the death sentence for kidnapping must be set aside. See Collins v. State, 239 Ga. 400, 236 S.E.2d 759 (1977). Appellant's enumerations of error 7 and 8 are therefore meritorious.
2. The court did not abuse its discretion in denying Lewis' motion for psychiatric evaluation and treatment, where, as here, no special plea of insanity was made to the court. Chenault v. State, 234 Ga. 216, 218(1), 215 S.E.2d 223 (1975). Testimony at the hearing on the motion that Lewis was a "problem boy," went AWOL from the Army, and was "moody" does not raise an issue of insanity. See Ross v. State, 217 Ga. 569, 577, 124 S.E.2d 280 (1962). Enumeration No. 1 is without merit.
Further, there is no merit to Lewis' second enumeration arguing that a continuance should have been granted during which he could have obtained a psychiatric examination. State witnesses at the hearing on the motion testified appellant's behavior was not unusual during confinement and the allegations of counsel that he was not able to communicate easily with appellant were not a sufficient ". . . showing of diligence on the part of counsel or specific actions that remained to be taken. . . ." as to warrant a continuance. Chenault v. State, supra, 234 Ga. division 4 at p. 222, 215 S.E.2d at p. 227; Code Ann. § 27-2002 (Ga.L.1893, p. 56).
3. Appellant's counsel was appointed to represent him by written order of July 5, 1976, and he stated he was actively involved in preparing for the case until trial on July 19, 1976. There was no error in denying a motion for postponement in order to prepare for trial, nor was there denial of benefit of counsel when the State presented a list of witnesses to defendant's counsel the evening before trial where the record shows appellant waived arraignment and made no demand for a list of witnesses until the afternoon before trial. See Code Ann. § 27-1403 (Ga.L.1966, pp. 430, 431).
4. In Enumerations 4 through 6, Lewis argues that in the absence of a plea of insanity, a charge on Code Ann. § 26-702 setting forth the general statutory law governing the affirmative defense of insanity was (a) not adjusted to the evidence; (b) an expression of opinion by the trial judge that appellant committed the acts complained of; and (c) was not warranted by the evidence. These contentions are refuted by the testimony of Lewis in admitting he...
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...plea of insanity, the granting of a request for the appointment of an expert was a matter of trial court discretion. Lewis v. State, 239 Ga. 732, 238 S.E.2d 892 (1977); Patterson v. State, 239 Ga. 409, 238 S.E.2d 2 (1977); Holsey v. State, 235 Ga. 270, 219 S.E.2d 374 (1975). 12 Accordingly,......
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...that the state has carried its burden of proving all the elements of the offense, except for criminal intent. Cf. Lewis v. State, 239 Ga. 732, 733, 238 S.E.2d 892, 894 (1977). After examining the instructions, one must conclude either that the trial judge gratuitously interjected the issue ......
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