Marshall v. State, 32080
| Decision Date | 25 May 1977 |
| Docket Number | No. 32080,32080 |
| Citation | 236 S.E.2d 58,239 Ga. 101 |
| Parties | Marvin MARSHALL et al. v. The STATE. |
| Court | Georgia Supreme Court |
King, Phipps & Associates, P. C., C. B. King, Albany, for appellants.
Claude N. Morris, Dist. Atty., Americus, Arthur K. Bolton, Atty. Gen., Susan V. Boleyn, Staff Asst. Atty. Gen., Atlanta, for appellee.
The appellants Marvin Marshall and Robert Mathis, Jr., were indicted for the offense of armed robbery. Following a joint trial, both appellants were found guilty as charged. Appellant Marshall received a fifteen-year sentence and appellant Mathis received an eleven-year sentence. Their motion for new trial was overruled, and this appeal, alleging four procedural errors, was brought.
1. The appellants first contend that the trial court erred in failing to grant their request for additional time to review a transcript from the previous trial of a co-defendant. A pre-trial motion for discovery and to compel disclosure, submitted by appellants' counsel, was granted and the court ordered that a copy of the transcript from the former trial of appellants' co-defendant be made available. The appellants then presented a motion to recess until the next morning to give counsel time to review the evidence received. This motion was overruled, the trial court being of the opinion that the time from the overnight recess until the convening of court the next morning gave counsel sufficient time to prepare, because the transcript was from a trial of a co-defendant and was only ninety-two pages in length.
"All applications for continuances are addressed to the sound legal discretion of the court, and, if not expressly provided for, shall be granted or refused as the ends of justice may require." Code Ann. § 81-1419. A refusal to grant a continuance will not be disturbed by appellate courts unless it clearly appears that the judge abused his discretion in this regard. Campbell v. State, 231 Ga. 69, 200 S.E.2d 690 (1973); Jackson v. Hopper, 232 Ga. 419, 207 S.E.2d 58 (1974).
The case at bar is distinguishable from Terrell v. State, 136 Ga.App. 848, 222 S.E.2d 642 (1976), which is relied upon by appellant. In that case, counsel for defendant had requested the transcript from the court reporter, and it had not been prepared for delivery to him until shortly before 12 o'clock noon and he was scheduled for trial at 1:30 o'clock p. m. the same day. In the instant case, these defendants had been indicted for several months and the cases had been scheduled for trial at a special setting in the month of June 1975, at which time they were not tried but were postponed because of conflicts experienced by defendant's counsel. The transcript in question in this case had been prepared for more than 30 days prior to the date of trial, and defendant's counsel did not present or file his motion for discovery until the date the trial was to begin. Even then the trial judge gave him overnight to consider the record, and also did not order the court to convene until 10 o'clock a. m. the next day. Additionally, defendants have not demonstrated how they were affected by the court's refusal of a continuance beyond the additional time allowed. If the record had been denied altogether, see Wisdom v. State, 234 Ga. 650, 652, 217 S.E.2d 244 (1975).
There appears to be no abuse of discretion by the trial court in this case. The appellants' first enumeration of error is without merit.
2. The appellants next contend that the trial court erred in failing to allow the voir dire of their trial to be recorded. At the beginning of the trial, before examination of the jurors had begun, the State announced it was not seeking the death penalty. At the beginning of the trial it was made clear to counsel that voir dire and arguments of counsel would not be a part of the record; therefore, the defendants' attorney ordered this to be taken down and transcribed at the expense of defendants. (Emphasis supplied.) The trial court, which allowed the appellants to proceed in forma pauperis for purposes of the record, then overruled the appellants' motion that the voir dire be transcribed at the State's expense.
In arguing that error was committed, the appellants rely heavily on Owens v. State 233 Ga. 869, 214 S.E.2d 173 (1975), which held, "failure to record the Witherspoon (Witherspoon v. Illinois, 391 U.S. 510, 88 S.Ct. 1770, 20 L.Ed.2d 776) voir dire in a case in which the sentence of death is imposed is reversible error." The case now under review was not a case in which the death penalty was contemplated. Therefore, Owens, supra, is not controlling.
Although the complete voir dire questioning was not transcribed for the record, objections made by appellants' counsel during the voir dire and the court's ruling on those objections were preserved for the record. This was sufficient to protect any challenge the appellants...
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