Massey v. State
| Decision Date | 06 May 1965 |
| Docket Number | No. 22904,22904 |
| Citation | 220 Ga. 883,142 S.E.2d 832 |
| Parties | De Wayne MASSEY v. The STATE. |
| Court | Georgia Supreme Court |
Syllabus by the Court
1. Under the Act of 1956 (Ga.L.1956, p. 737) where a defendant pleads guilty to a capital offense, the trial judge is authorized in the exercise of his discretion, but is not required, to impose life imprisonment or a lesser punishment.
2. We adhere to the ruling in Sims v. Balkcom, 220 Ga. 7, 136 S.E.2d 766, that the statute requiring a death sentence for rape where the jury does not recommend mercy does not violate the constitutional prohibition against cruel and unusual punishments.
3. The general grounds of the motion for new trial are without merit.
4. Where the defendant invokes the rule of sequestration of the State's witnesses under the provisions of Code § 38-1703, the trial judge is not authorized to allow the victim to remain in the courtroom, hear the other witnesses testify, and then also testify, unless the victim comes within one of the three exceptions to the sequestration rule. Here the record does not show any valid reason why the victim should have been allowed to remain in the courtroom.
5. The sheriff and deputy sheriffs properly remained in the courtroom after the invocation of the sequestration rule since they were needed so as to not diminish the efficiency of the court.
De Wayne Massey was convicted of the crime of rape in Turner Superior Court and excepted. The evidence adduced upon the trial of the case was as follows.
Dr. James W. Reynolds testified that he saw the victim, Mrs. Rhoda Alberson, as a patient at about 10:30 to 11 o'clock on the morning of October 14, 1964; that she arrived in the company of Deputy Sheriff Jimmy Brown; that she was in early shock, quite emotionally upset, and obviously injured; that her general condition was all right as far as her vital signs were concerned; that an examination revealed a large area of swelling above her forehead, lacerations about the face and a broken nose which was bleeding; that on account of her history of alleged rape, a special examination was made to find sperm, but none were found.
Ida Maddie testified that she lived within 'hollarin' distance' of Mrs. Rhoda Alberson; that on the morning of October 14, 1964, she and her two daughters were in their home; that the front door wasn't closed but the screen was; that she saw the defendant standing in her house that morning; that he said he wanted to use the telephone and she replied that she didn't have a telephone and he then looked around and went running off toward Mrs. Alberson's house; that he fell when he got to Mrs. Alberson's front door; that he got up and went on in and she heard Mrs. Alberson hollering and screaming; that she then rode off with her daughter approximately two miles to Mrs. Myers' house and reported the incident to her, and then drove approximately one-half mile further to Mr. Hoss Myers' house and told him to go over and see about Mrs. Alberson; on cross examination she stated that on her return she saw a brown and white automobile stuck in the ditch on the north side of the Alberson house; that defendant's appearance that morning 'looked funny' to her; that she had never seen him before.
Mrs. A. L. Myers testified that she lived about five miles of Sycamore; that at about 11 o'clock on the morning of October 14th Ida Maddie drove to her house in a truck and had a conversation with her, and that as a result of that conversation she called the Turner County Sheriff's telephone number and recounted to the person who answered the report that she had just received from Ida Maddie.
Deputy Sheriff Jimmy Brown testified that at sometime between 11 and 12 o'clock on October 14, 1964, he received a telephone call and received a report that a white man had broken into a negro house; that he and Deputy Sheriff Deral Dukes, at the direction of the Turner County Sheriff went to the Alberson house where he found several cars assembled; found the front door ajar, went in and found the defendant, Mrs. Rhoda Alberson and her baby all in bed, with the defendant on top of Mrs. Alberson, that defendant had his penis inserted in her vagina and was pumping up and down; that he recognized the defendant immediately and hollered at him whereupon he jumped up and fell back to the top of the bed; that the defendant's face, Mrs. Alberson's face and the baby's face were all bloody; that the defendant was clothed only in his shorts and socks, that he made no reply and offered no resistance, and Deputy Sheriff Deral Dukes put the handcuffs on him; that Mrs. Alberson rolled off the bed and said she was sick, and began to throw up some; that she was clothed only in a housecoat; that he then carried her to the emergency room of the Doctors' Clinic in Ashburn, Georgia, leaving the baby in the care of Mr. Hoss Myers and the defendant in the custody of Deputy Sheriff Deral Dukes; that he later returned and picked up the defendant and the deputy sheriff.
Deputy Sheriff Deral Dukes testified on direct examination that he went with Deputy Sheriff Jimmy Brown to the Alberson home on the morning of October 14, 1964; that when they were within ten or twelve feet of the door steps, they heard a woman moaning and hollering; that they broke and ran on into the house, the front door screen being ajar; that Deputy Sheriff Brown hollered at the defendant who then rolled back and fell back against the headboard of the bed; that he put handcuffs on the defendant and kept him in custody until Deputy Brown returned for them some 30 or 40 minutes later; that the defendant was dressed only in his shorts and socks; that his other clothing was scattered around in the back bedroom; that a butcher knife was found in one of his shoes; that he brought the clothing and the knife on in with the defendant; he identified the butcher knife which was put in evidence.
On cross examination he testified that the defendant's face was scratched and bloody, his hair was disarranged; that he had the appearance of a half drunk man; that he didn't look just right; that the defendant was examined by a doctor that day.
Osborn James Myers testified on direct examination that he talked to Ida Maddie and that after talking with her he got his cop and gun and drove over to Mrs. Alberson's house but was unable to hear or see anything after blowing the horn three times and listening; that he got back in his car and started to back out when he saw a two-tone tan and white 1956 Ford in the ditch down the hill from the Alberson house; that he went down and recorded the tag number, and that while he was there several other people arrived in cars and finally, approximately ten minutes from the time of his first arrival, Deputy Sheriff Jimmy Brown came to the house.
Dr. Larry B. Howard, Assistant Director of the Crime Laboratory of the State, testified that he arrived at the Alberson residence after dark on October 14, 1964; that he collected blood samples from various parts of the house and various objects in the house, that of the samples he was able to positively identify they all appeared to be human blood of type 'Q'; he further identified various photographs and a t-shirt recovered from the middle bedroom.
On cross examination he stated that he did not try to lift any fingerprints from the knife; that he was not a fingerprint man, that he doesn't recall having seen the knife, but may have. On redirect examination Dr. Howard identified the quilt taken from the bed in the front bedroom and testified that the blood stains were of human blood, type 'Q.'
Dr. Woodrow Goss testified that he was a medical doctor; that he was called to the jail on October 14, 1964, at about noon time, to examine the defendant who was complaining of a headache; that he did not conduct a thorough physical and mental examination, he just checked him for his headache; that he did not note any odor of alcohol or stimulants about the defendant. On cross examination, he testified that no one had alerted him to look for any signs of dope; that he did not examine the defendant to any extent to determine whether or not he was under the influence of dope; that he was fully rational at the time he saw him; that he was not under dope or whiskey to any extent that he didn't know what he was doing or what the doctor was doing.
Sheriff C. S. Hunt testified that on October 14, 1964, while Turner Superior Court was in session he received a report, and that in response to said report he sent Deputies Jimmy Brown and Deral Dukes to investigate; that he learned from his wife that Deputy Jimmy Brown had taken Mrs. Alberson to the Doctors' Clinic and that he then went down to the Doctors' Clinic to check with Mrs. Alberson and Dr. Reynolds; that when he arrived Mrs. Alberson was in such shock that she could not talk; that she had a gash above her left eye and down into the nose, and her face was swollen, that the caps to her teeth were knocked off; that he returned to the jail and saw that Dukes had brought in the defendant; that he had on only his shorts and a pair of socks; that his face was scratched up some; that there was some blood on his nose; that he (the sheriff) went out and took some pictures with one Charles Perry and later with Dr. Howard.
The victim, Mrs. Rhoda Alberson, testified that on the morning of October 14, entered her home, asked if he could 'borrow' her home, asked if he could 'borrow' her telephone and then, without warning, brutally attacked and raped her, despite all her resistance; that she was finally rescued by the two deputies, Brown and Dukes, and carried to the clinic; that she was so weak she could not get up by herself and vomited blood several times on the way to the doctor; that the doctor took five stitches in three places on her face.
The defendant, De Wayne Massey, in an unsworn statement related to the court and jury that back on June 12, 1962, he was sentenced to twelve months...
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