McKenzie v. State

• Decision Date: 23 September 1981
• Docket Number: No. 37778,37778
• Parties: McKENZIE v. The STATE.
• Court: Georgia Supreme Court

Page 95

282 S.E.2d 95

248 Ga. 294

McKENZIE v. The STATE.

No. 37778.

Supreme Court of Georgia.

Sept. 23, 1981.

T. Joseph Campbell, Calhoun, for Robert Lee McKenzie.

Darrell E. Wilson, Dist. Atty., Cherokee Judicial Circuit, Calhoun, Arthur K. Bolton, Atty. Gen., for the State.

MARSHALL, Justice.

Robert Lee McKenzie appeals from his convictions of felony murder and aggravated battery, for which he was sentenced to life and 20 years' imprisonment, consecutively.

1. The following evidence was adduced at the trial. The murder victim, Eugene Maness, and his son, Ronald, investigated after Ronald had seen the appellant on the front porch of the weekend home of their neighbor, Mrs. Webber (who was not there at the time), and co-indictee Burke's car parked in front of the house. There had been recent burglaries in the neighborhood. When Eugene and Ronald drove up, the appellant was stepping off the porch of the house, carrying a crow bar. In his statement to the police, the appellant admitted that he and Burke had both entered the house. When the appellant and Burke saw the Manesses arrive, they got into their car, whereupon the Manesses parked directly behind them. Although the testimony as to the details of the ensuing events is in conflict, it appears that Eugene, armed with a .357 magnum revolver, got into a gunfight with Burke, armed with the appellant's .44 magnum pistol, resulting in the wounding of Ronald and the fatal shooting of Eugene in the forehead at point-blank range. The appellant and Burke were then seen driving through the neighborhood at a high rate of speed, laughing and waving their arms.

Mrs. Webber testified that her house had been broken into and was in disarray. The appellant's statement indicated an awareness that a TV stand in the burglarized premises had no TV on it at that time. He admitted the details of the shooting, including that, when the victim was in the process of making a citizen's arrest, before any gunfire occurred, he had tried to grab the pistol held by the victim, giving Burke time to exit his car and commence firing with the appellant's pistol, which the appellant had purchased that morning; that Burke "got lucky" and hit the victim in the head; and that he and Burke had fled immediately thereafter without rendering aid to the two shooting victims.

The foregoing evidence supports the jury's verdict under the current legal standard. Jackson v. Virginia, 443 U.S. 307, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979); Hardy v. State, 245 Ga. 272, 280, 264 S.E.2d 209 (1980); Whitaker v. State, 246 Ga. 163, 168, 269 S.E.2d 436 (1980). Enumerated errors 1 and 26 are without merit.

2. The appellant concedes that the trial judge's denials of his motions for bail, additional peremptory strikes, sequestration of the jury, daily transcripts of his co-indictee's concurrent but separate trial, and supersedeas bond were within his discretion, but argues that the total effect of these adverse rulings was to deny him a fair trial. No abuse of the trial court's discretion appears, and we cannot say that the appellant was denied a fair trial. Enumerated errors 2, 6, 7, 11 and 32 are without merit.

3. The appellant contends that his indictment was defective in that it was based upon an overly broad statute. However, we decline to reverse Baker v. State, 236 Ga. 754, 755, 225 S.E.2d 269 (1976), which held the overbreadth of the felony-murder statute to be a policy, rather than a Constitutional, problem.

He further contends that, since his guilt was predicated upon his participation as a mere party to the crime, the state should be required to allege the crime with more specificity. This is not required. See Wells v. State, 72 Ga.App. 199(1), (3), 33 S.E.2d 563 (1945). Here, the jury was adequately charged on felony murder and on parties to a crime, which was sufficient. Enumerated error 3 is without merit.

4. The court did not err, as contended in the fourth enumerated error, in reserving a ruling on the appellant's motion for a change of venue, because of alleged inflammatory pre-trial publicity, until after the voir dire examination of jurors, since the attitudes of the prospective jurors had to be ascertained.

Nor was the denial of the motion an abuse of discretion, as urged in enumerated error 5. The pre-trial publicity, as shown in the record, is not inflammatory, so as to create an atmosphere in which a fair trial could not be held.

Neither was it error to refuse to exclude certain jurors who admitted having been exposed to the pre-trial publicity, as contended in enumerated error 15, where the court determined that the prospective jurors had not formed fixed opinions as to the defendant's guilt or innocence based upon reports in the news media. Baker v. State, 245 Ga. 657(2), 266 S.E.2d 477 (1980).

5. It was not error to admit a tape recording, obtained by electronic eavesdropping equipment, of a pre-custodial conversation between the co-indictees and an undercover agent engaged in a "sting operation" for stolen goods, after the burglary, murder and aggravated battery but before co-indictees had been implicated therein after a determination of voluntariness had been made and a proper foundation laid. See Sanders v. State, 246 Ga. 42(2), 268 S.E.2d 628 (1980). This comes under the "one-party consent" rule. O'Dillon v. State, 245 Ga. 342(2), 265 S.E.2d 18 (1980).

The contention that the taped statement improperly placed the appellant's character in issue, is without merit, as "(e)vidence, if otherwise admissible, does not become inadmissible because it incidentally put the appellant's character in issue." Spencer v. State, 236 Ga. 697(4b), 224 S.E.2d 910 (1976).

Enumerated errors 8, 9, 20 and 23 are without merit.

6. The trial court did not err in overruling the appellant's motion to suppress certain evidence seized from his co-indictee's car, since he had no proprietary interest in the car, hence lacked standing to complain of the search. Brown v. State, 240 Ga. 274(1), 240 S.E.2d 63 (1977). Moreover, no harmful error was shown where no evidence taken from the car was used against the appellant at his trial. Enumerated error 10 is without merit.

7. Denial of a continuance, because of the appellant's "agitated condition" and two alleged suicide attempts, was not an abuse of discretion where he was diagnosed as legally sane and not psychiatrically disturbed, although depressed. Although it is contended that the appellant was unable, because of his alleged condition, to assist trial counsel with the conduct of his defense, the record shows that he did, in fact, do so. Enumerated errors 12 and 13 are without merit.

8. The appellant's challenge to the array of the traverse panel not having been timely made when the panel was first put upon him, as required by law, enumerated error 14 presents no ground for reversal. Goodwin v. Hopper, 243 Ga. 193(5), 253 S.E.2d 156 (1979) and cits.

9. The trial judge did not err, as contended in enumerated error 16, in asking two prospective jurors during voir dire to state their age; in questioning witnesses during a Jackson-Denno hearing; or in commenting as to the demeanor of the appellant, in response to similar comments by defense counsel.

10. No reversible error is shown by the prosecution's reference to the undercover taped conversations prior to the court's ruling on their admissibility, in light of our holding of their admissibility in Division 5, supra. Enumerated error 17 is without merit.

11. It was not an...