Merrill v. State, 48419

• Decision Date: 07 January 1974
• Docket Number: No. 48419,No. 2,48419,2
• Parties: Ronald S. MERRILL v. The STATE
• Court: Georgia Court of Appeals

Page 632

204 S.E.2d 632

130 Ga.App. 745

Ronald S. MERRILL v. The STATE.

No. 48419.

Court of Appeals of Georgia, Division No. 2.

Jan. 7, 1974.

Rehearing Denied Feb. 4, 1974.

Albert M. Horn, Atlanta, for appellant.

Eldrige W. Fleming, Dist. Atty., Hogansville, for appellee.

Syllabus Opinion by the Court

CLARK, Judge.

This appeal is by one of two defendants who were jointly indicted, tried and convicted of possession of marijuana. Co-defendant paid the fine imposed upon him. Appellant received an imprisonment sentence after the court declined to accept the jury's recommendation of misdemeanor punishment. Appellant's new trial motion was denied and this appeal followed.

Two deputy sheriffs were investigating a prowler call around 11:30 p.m. and had brought their unmarked vehicle to a stop on a side road prior to entering the main highway. One of these officers was in uniform. Appellant was driving his van on the highway with the co-defendant as a passenger and saw the deputy sheriffs' unmarked car halted at the stop sign. Although there was no connection between the defendants and the prowler investigation the deputies followed the defendant's van. The deputies testified that while in the act of following the vehicle they saw a brown paper bag thrown from the van. There is a discrepancy in the testimony of the two deputies as to the side from which it was thrown. After this incident and at some distance beyond where they had observed the throwing of the bag the deputies halted the van. The reason testified to by one deputy was that 'we make a case against them for littering the highway' (T. 197) and the other said 'when they threw the sack out, then I knew they needed stopping.' (T. 124-125). No littering charge was made.

Upon halting the van the officers asked to search it. Appellant testified he let them search it 'because I knew if I didn't he would search it anyway.' (T. 132). No drugs were found and the van was allowed to proceed. During the search the officers observed some cigarette rolling papers presumably of the kind used to roll marijuana cigarettes. These papers were later taken from the van but not until after both defendants had been jailed. This imprisonment occurred as a result of the officers returning to the location where the bag had been thrown and discovering it to contain what appeared to be marijuana. Other facts developed during the trial will be presented later in this opinion as we undertake to deal with the various enumerations of error in the order in which events occurred at the trial.

1. Motion for Continuance (Enumeration 2). Two grounds for continuance were made at the commencement of the trial. One dealt with allegedly prejudicial publicity and the other was based upon the case being called for trial prior to another case having a lower number on the docket. The latter point was based upon Code § 27-1301 which provides for criminal cases to be 'called in the order in which they stand on the docket unless the defendant be in jail, or otherwise in the sound discretion of the court.' This provision was ruled directory and not mandatory in Rosenbrook v. State, 78 Ga. 111(2), where it was also held that '(B)efore a party could be heard to object, he must show injury to himself, resulting from the act of the court.' As neither injury nor abuse of 'sound discretion' were shown we find the trial judge did not err in ruling against appellant on this ground.

The alleged prejudicial publicity was based upon four articles published in the largest local newspaper. The last article appeared the day before the trial and referred to defendant's prior conviction on marijuana possession and stated the details of the arrest.

Eighteen out of forty-seven prospective jurors had read some of the articles. Each was asked by the defense: 'Do you believe that reading that article would affect your consideration of the case, (juror's name) . . . do you believe yo could divorce what you read from your mind so you could give a total and free consideration to this case?' One juror was dismissed for cause because he replied: 'Well, I don't believe there is any way I could completely dismiss them from my mind.' (T. 22). The others replied affirmatively.

'The test as to whether unfavorable newspaper publicity has so prejudiced a case against one accused of a crime that a fair trial cannot be had is whether the jurors summoned to try the case have formed fixed opinions as to the guilt or innocence of the accused from reading such unfavorable newspaper publicity. Dutton v. State, 228 Ga. 850, 852, 188 S.E.2d 794 . . . (The transcript) shows without dispute that the jurors who were selected to try the accused had formed no fixed opinion as to his guilt or innocence and were perfectly impartial between him and the state, notwithstanding the wide newspaper publicity which was given to the case before the trial.' Krist v. Caldwell, 230 Ga. 536(2), 198 S.E.2d 161.

"There is no inference of prejudice requiring a change of venue (or a continuance) from the mere fact of the publishing of descriptive or even denunciatory matter, or even from the juror's having formed or expressed an opinion from rumor or from reports from newspapers or other news media; what is required is a showing that the juror had formed such a fixed or unchangeable opinion as to the guilt or innocence of the defendant as would not yield readily to the testimony.' Thacker v. State, 226 Ga. 170, 174, 173 S.E.2d 186. The granting or refusing of a continuance, like the granting or the refusing of a motion for a change of venue, is within the discretion of the trial judge. Such discretion will not be controlled by the appellate courts unless abused . . . (Cit.)' McCrary v. State, 229 Ga. 733(1), 194 S.E.2d 480.

Defendant cites Tant v. State, 123 Ga.App. 760(3), 182 S.E.2d 502 as supporting his position. There our court said: 'The evidence failed to show a 'probability of unfairness' or a 'reasonable likelihood' that a fair trial could not be obtained as applied in the ruling of Sheppard v. Maxwell, 384 U.S. 333, 86 S.Ct. 1507, 16 L.Ed.2d 600. Nor does the voir dire examination of jurors, some of whom had read such articles, show anything to the contrary. (b) Nor did the trial court abuse its discretion in permitting a juror to serve who had read the local newspaper articles and had seen the pictures where such juror said that he 'believed' he could serve without prejudice and could render a just verdict under the evidence.'

Even under Tant v. State, supra, it appears the trial judge properly denied the motion for continuance relative to prejudicial publicity. It further is manifest from the transcript that the situation which defendant alleges created prejudicial publicity falls far short of the circumstances determined to be prejudicial in Sheppard v. Maxwell, 384 U.S. 333, 86 S.Ct. 1507, 16 L.Ed.2d 600, supra; Irvin v. Dowd, 359 U.S. 394, 79 S.Ct. 825, 3 L.Ed.2d 900, and Marshall v. United States, 360 U.S. 310, 79 S.Ct. 1171, 3 L.Ed.2d 1250.

2. Denial of Serverance Motion (Enumeration 3). Both defendants filed motions seeking separate trials. Appellant stated the basis of his motion to be 'On the ground that he has been advised by counsel for Whitley (co-defendant) that he intends to introduce evidence other than defendant's statement and that he intends to refer to defendant Merrill's character or record.' This severance motion further stated that 'Defendant Merrill presently does not intend to introduce evidence other than his statement, and he will lose the right to closing argument to the jury by Defendant Whitley's action. All of the aforesaid will greatly prejudice the trial of Defendant Merrill's case.' (T. 16). The co-defendant's severance motion not only stated 'there will be variations in their methods of trial tractics between the two that are irreconcilable and that the result will be that both your defendant Charlie Fred Whitley, Jr. and Ronald Sterling Merrill will be unable to obtain a fair and just trial because of the same' (R. 22) but added a cosmetic handicap facing Whitley, the co-defendant. This referred to the physiognomy difference of appellant and his attorney both of whom possessed 'complete and full long beard, long hair in an unkept (sic) state' as contrasted with the co-defendant and his counsel both of whom were clean shaven and with short haircuts. Both severance motions were denied.

When the General Assembly undertook in 1971 to terminate the then existing absolute right to severance by joint defendants the determination for denial or grant of separate trials was placed 'in the discretion of the trial court.' Code Ann. § 27-2101 (Ga.L.1971, p. 891). Since the 1971 enactment our appellate courts have passed upon two appeals. In Mathis v. State, 231 Ga. 401(2), 202 S.E.2d 73, the Supreme Court ruled there was no abuse of discretion in the trial judge ordering a joint trial and denying the severance motion which had been based 'on the grounds that the prosecution intended to introduce a statement implicating him which statement was made by the co-defendant who could not be cross examined and that his constitutional right to confront witnesses used against him would be violated.' In Moore v. State, 129 Ga.App. 612(1), 200 S.E.2d 320 the motion for severance by one of several defendants was 'made on the ground that because two of the defendants were not going to be sworn so as to be subject to cross examination but make only an unsworn statement, the movant would be denied his rights to be confronted by his accuser and to cross examine the witnesses against him.' Our court affirmed the ruling of the trial judge in denying the severance motion.

We recotnize that the right to make the opening and closing arguments to the jury is an important right to the extent that an improper denial of it will work a reversal (Hart v. State, 88 Ga.App. 334(2), 76 S.E.2d 561). We are also impressed with the...