McCulligh v. State

• Decision Date: 02 February 1984
• Docket Number: No. 67572,67572
• Citation: McCulligh v. State, 169 Ga.App. 717, 314 S.E.2d 724 (Ga. App. 1984)
• Parties: McCULLIGH v. The STATE.
• Court: Georgia Court of Appeals

Page 724

314 S.E.2d 724

169 Ga.App. 717

McCULLIGH v.The STATE.

No. 67572.

Court of Appeals of Georgia.

Feb. 2, 1984.

J. William Harvey, Jesup, for appellant.

W. Glenn Thomas, Jr., Dist. Atty., Jerry W. Caldwell, Asst. Dist. Atty., for appellee.

DEEN, Presiding Judge.

The appellant, George McCulligh, was tried and convicted for rape, aggravated battery, robbery, and burglary.The trial court sentenced him to life imprisonment on the rape conviction, 20 years imprisonment for the aggravated battery (to be served consecutively to the life term), 5 years imprisonment for the robbery (to be served concurrently with the sentence for the battery), and 5 years imprisonment for the burglary (to be served concurrently with the life term).

During the early morning hours of August 21, 1982, Mrs. Ola Mae Russell, who was 76 years old, awoke to find someone choking her by hand.Mrs. Russell attempted to scream, but her assailant placed a pillow over her face and pressed one hand on her throat.She was able to free one hand, with which she grabbed his hair, and her assailant struck her face with his fist, rendering her briefly unconscious.(This blow also resulted in Mrs. Russell's loss of use of her left eye.)When she regained awareness, the assailant had her bound down and was sexually molesting her; Mrs. Russell was unable to recount to what extent any actual penetration occurred because of her loss of awareness resulting from the blow to her head.

Following this sexual attack, the assailant demanded that Mrs. Russell tell him where she kept her money.She informed him, and the assailant removed a five dollar bill and a ten dollar bill from Mrs. Russell's purse which was in the adjoining hall and then demanded to know where the rest of her money was.Mrs. Russell pleaded that that was all she had, and the assailant departed.

Law enforcement officers subsequently called to the scene discovered Mrs. Russell's purse and a glass pane taken from the carport door in some bushes adjacent to the house.A hole had been punched in the screen door, apparently to enable the intruder to reach the door lock.

The appellant resided with his mother and other family members in a house, located one street over from Mrs. Russell's home, which was owned by Mrs. Russell and rented to the appellant's mother.At the request of the law enforcement officers, the appellant and his family went to the sheriff's department for questioning.Shortly after 3:00 p.m., the appellant signed a statement, admitting to having forcefully entered Mrs. Russell's house, having struck her in the face, having had sex with her, and having taken $15 from her purse.A subsequent search of the appellant's bedroom uncovered in a dresser drawer a five dollar bill and a ten dollar bill and the brown flannel shirt that he wore during the incident.

On appeal, McCulligh contends that the trial court erred in not directing verdicts of acquittal on all counts charged; that the trial court erred in denying his motion for new trial on the general grounds; that the trial court erred in admitting into evidence the appellant's signed confession and an in-court demonstrative experiment; and that on voir dire counsel for the appellant should have been permitted to inquire into the jurors' knowledge of and attitude toward various principles of law.Held:

1.In contending that his confession was not given freely and voluntarily, the appellant emphasizes certain circumstances under which the confession occurred: he was tired and sleepy, having been awake the better part of 24 hours; he was not very intelligent; he had been interrogated by several different police officials; and he had been informed that he had failed a polygraph examination.However, a full Jackson-Denno hearing was conducted prior to the trial, at which the interrogating officers testified that the appellant was alert and clearly understood what took place.Moreover, while the appellant had remained at the sheriff's department most of the day, he had not been in custody until shortly before giving the confession.

Based on the evidence adduced at the Jackson-Denno hearing and the totality of the circumstances of the interrogation, the trial court concluded that the statement was freely and voluntarily given after the appellant was advised of his constitutional rights.The trial court's findings as to factual determinations and credibility relating to the admissibility of a confession will be upheld on appeal unless clearly erroneous.Strickland v. State, 250 Ga. 624, 300 S.E.2d 156(1983);Cox v. State, 248 Ga. 713, 285 S.E.2d 687(1982).In this case, the trial court's ruling of admissibility certainly is not clearly erroneous.

2.In contending that the trial court erred in allowing the chief of police to conduct an in-court experiment of sticking his arm through a screen door to demonstrate why and how the appellant's arm was scratched, the appellant points out conditions under which the experiment was conducted differing from the real event: the witness's arm size; the lighting; the angle at which the arm was placed through the screen."The admission of testimony as to experiments rests largely in the discretion of the trial judge, and the exercise of this discretion will not be controlled unless manifestly abused.The weight of such testimony is for the jury, and varies according to the circumstances of similarity which they may find to exist between the experiments and the actual occurrence under investigation.Hicks v. State, 146 Ga. 221, 91 S.E. 57."West v. State, 200 Ga. 566, 571, 37 S.E.2d 799(1946).Accord, Wynes v. State, 182 Ga. 434, 185 S.E. 711(1936).We find no manifest abuse in allowing the witness to place his arm through a screen door in order to demonstrate how the appellant unlocked the door and scratched his arm.Any dissimilarity between the conditions of this particular experiment and the actual occurrence goes to the weight and not the admissibility of that evidence.

3.The appellant's contention that a directed verdict of acquittal should have been granted on the rape count, because there was no evidence of the essential element of actual penetration, is without merit.Even slight penetration will sustain a conviction for rape, Lee v. State, 197 Ga. 123, 28 S.E.2d 465(1943), and penetration may be proved by indirect or circumstantial evidence.Payne v. State, 231 Ga. 755, 204 S.E.2d 128(1974);Holmes v. State, 194 Ga. 849, 22 S.E.2d 808(1942).In this case, the appellant confessed to having had sex with the victim, and there was medical evidence that immediately following the incident the victim's vagina was red and irritated, an unusual condition for a person of the victim's age and one that could be caused by intercourse.This evidence was sufficient to authorize a finding of penetration.

4.The appellant's motions for directed verdict of acquittal on the aggravated battery and the robbery counts were based upon the contention that convictions for those 2 crimes would constitute prohibited multiple convictions growing out of the same transaction, because the act that supported the charge of aggravated battery was used to prove the element of force essential to both the rape charge and robbery charge.There is no dispute that an aggravated battery occurred, the victim having lost the use of her left eye as a result of the appellant's blow to her head.

An accused may be...