Lumpkin v. State
| Decision Date | 17 January 1986 |
| Docket Number | No. 42815,42815 |
| Parties | LUMPKIN v. The STATE. |
| Court | Georgia Supreme Court |
Marc E. Acree, Duncan, Thomasson & Acree, LaGrange, for Gregory Hughes Lumpkin.
Arthur E. Mallory III, Dist. Atty., LaGrange, Michael J. Bowers, Atty. Gen. Dennis R. Dunn, Staff Asst. Atty. Gen., for the state.
Gregory Lumpkin was indicted along with five others for the murder of Rebecca Heath, the wife of co-indictee Larry Heath. The victim's body was found in her car, where she had died of gunshot wounds to the head. Lumpkin and co-defendant Owens were found guilty of murder and sentenced to life imprisonment. 1
This appeal consists of five enumerations of error.
1. Lumpkin alleges that the trial court improperly excused certain veniremen prior to his trial. Approximately 38 persons were excused by the secretary of the chief judge when they presented excuses over the telephone. Lumpkin contends that this failed to conform to the requirements of OCGA § 15-12-1(a), which provides that a summoned juror may not be excused except The record shows that the judge's secretary was authorized to excuse only those prospective jurors who presented statutory excuses (OCGA § 15-12-1), which she did in accordance with long-standing practice within the circuit. 2 Assuming, without deciding, that the "order" specified in the statute means a formal written order signed by the chief judge and placed upon the minutes of the court, the excusal here of prospective jurors absent such a formal order affords no ground for relief.
First, the record establishes that the judge's secretary permitted excusals only upon statutory grounds. If a request did not come within the express terms of the statute, it was referred to the judge for decision. Hence, the "guidelines" of the circuit were nothing more than the statute itself, and the judge's secretary exercised no discretion[255 Ga. 364] --as, indeed, the judge might exercise no discretion--in acting on such requests.
Secondly, OCGA § 1-3-1(c) provides: "A substantial compliance with any statutory requirement, especially on the part of public officers, shall be deemed and held sufficient, and no proceeding shall be declared void for want of such compliance, unless expressly so provided by law." Here is a substantial compliance with the statute, lacking only in formalism. The veniremen having been excused only for statutory cause, there is no showing of harm to Lumpkin, and no error.
2. Lumpkin alleges that the trial court erred in denying a plea which he denominated autrefois acquit. He was not acquitted, of course, but bases his claim upon the want of a speedy trial. This court reversed Lumpkin's conviction on June 30, 1983, and ordered a new trial. Lumpkin v. State, 251 Ga. 313, 305 S.E.2d 102 (1983). We denied reconsideration on July 22, 1983, and sent down the remittitur on August 8, 1983. The trial court found that the remittitur was not filed in the clerk's office until August 22, 1983, at which time the trial court was not in session. The re-trial was not held during the succeeding November, 1983 term because the state's chief witness was unavailable, but was conducted within the following term, which commenced in February 1984.
Lumpkin made a demand for a speedy trial on August 11, 1983, and asserts that he is entitled to a discharge for denial of a speedy trial because of the six months' delay between August, 1983, and February, 1984. He points to no other fact in support of his claim. "A delay of six months only, where there was no showing of improper behavior by the state and no comprehensible claim of prejudice to [Lumpkin] from the delay, does not constitute a violation of [Lumpkin's] constitutional right to a speedy trial." Jenkins v. State, 237 Ga. 493, 228 S.E.2d 877, 878 (1976). See also Buxton v. State, 253 Ga. 137, 317 S.E.2d 538 (1984). There was no error.
3. Lumpkin alleges that the trial court erred in denying his motion for change of venue. He seeks to support his assertion of extensive pre-trial publicity by referring to copies of local newspaper articles, dated between 1981 and 1982, and by the fact that he had been tried and convicted for the same offense previously in the same court. He also shows that 46 out of 51 potential jurors had some knowledge of the case. This evidence, however, did not require a change of venue. See Berryhill v. State, 249 Ga. 442, Division 2, 291 S.E.2d 685 (1982). The pertinent inquiry is the percentage of potential jurors who were so influenced by pre-trial publicity that they were excused for prejudice--which here was less than 4%. The trial court's finding that a fair trial was possible in the county in which the crime was committed was not manifestly erroneous. Devier v. State, 253 Ga. 604, 609, 323 S.E.2d 150 (1984).
4. Lumpkin alleges that the trial court erred in permitting the district attorney to bolster the testimony of two state witnesses, Williams and Heath, both alleged co-conspirators. The district attorney asked the witness Williams, "Has what you told us here today changed any from what you've said in the past about this case?" In response, Williams stated that his testimony...
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...jurors and providing guidelines for such excusals in accordance with OCGA § 15-12-1(a). See Hendrick, supra; Lumpkin v. State, 255 Ga. 363(1), 338 S.E.2d 431 (1986), overruled on other grounds by Woodard v. State, 269 Ga. 317(2), 496 S.E.2d 896 (1998). In fact, the trial court at the pretri......
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...would induce irrelevant testimony, the court does not abuse its discretion in denying such questioning. Lumpkin v. State, 255 Ga. 363, 365(5), 338 S.E.2d 431 (1986). Here, we find that the trial court did not abuse its discretion by disallowing testimony regarding statements made about a vi......
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Lynn v. State, 73443
...about her testimony and about her out-of-court statement." Id. at 745, 334 S.E.2d 661. This decision was reaffirmed in Lumpkin v. State, 255 Ga. 363, 365, 338 S.E.2d 431. In the instant case, the defendant had the opportunity to confront the victim and cross-examine him under oath, about hi......
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Woodard v. State
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