Mize v. State, 32627
| Decision Date | 25 October 1977 |
| Docket Number | No. 32627,32627 |
| Parties | Floyd William MIZE v. The STATE. |
| Court | Georgia Supreme Court |
Charles W. Smith, Jr., Gainesville, for appellant.
Jeff C. Wayne, Dist. Atty., James H. Whitmer, Asst. Dist. Atty., Gainesville, Arthur K. Bolton, Atty. Gen., Kirby G. Atkinson, Asst. Atty. Gen., Atlanta, for appellee.
The defendant was tried and convicted of murder and sentenced to life imprisonment.
1. The first and thirteenth enumerations of error complain of the admission of photographs of the deceased and the scene of the crime. The sixth enumeration of error complains of the admission in evidence of clothing worn by the deceased at the time of his death.
It has long been settled in this state that photographs of the scene of a crime, the body of the victim and articles of clothing worn by the victim when properly identified, are admissible in evidence notwithstanding that they may be cumulative of other testimony and evidence presented. Johnson v. State, 226 Ga. 511, 175 S.E.2d 840 (1970); Dixon v. State, 231 Ga. 33, 200 S.E.2d 138 (1973); Alexander v. State, 239 Ga. 108, 236 S.E.2d 83 (1977). There is no merit in these enumerations of error.
2. The second, fourth and fifth enumerations of error contend the trial court erred in finding that appellant had intelligently and knowingly waived his rights in making a statement and thereafter in admitting the statement he had made. The tape recording, and later, because of the poor quality of the recording, the transcript of such statement, was introduced in evidence.
The defendant testified at the Jackson-Denno hearing that he understood his rights as they were read and explained by the officer who took his statement, that he was nervous about being asked to come to the detective's office, but that no threats were made; the officer asked the appellant if he would sign the waiver of rights previously explained and appellant signed such waiver. The trial court did not err in admitting the defendant's statement. High v. State, 233 Ga. 153, 210 S.E.2d 673 (1974).
After determination that the defendant's statement was voluntary, the state introduced the tape recording of the statement. Due to the poor quality of the tape recording, the trial court allowed the state to also introduce a transcript of the statement. The defendant's counsel objected to the "double-barreling" of the statement. The trial court cautioned the jury that by allowing the transcript of the statement in evidence, they were not to place any emphasis on it, but it was being allowed only for the sake of clarity.
In view of the cautionary instructions given, the admission of the transcript of defendant's statement shows no error.
3. The third enumeration of error complains of the overruling of defendant's motion for mistrial. One of the investigating officers testifying was asked: "Where did you go?" The witness answered: "To get the murder weapon." Counsel made a motion for mistrial on the ground that it had not been established that the weapon was the "murder weapon." The trial court instructed the jury to disregard any reference to the weapon as being the " murder weapon" and that it was for the jury to determine from the evidence as to the use of the weapon. Counsel did not renew his motion or ask for further instructions. Accordingly, this enumeration of error is without merit. Pritchard v. State, 225 Ga. 690, 171 S.E.2d 130 (1969).
4. The seventh enumeration of error complains of allowing defendant's expert witness to be cross examined from a text or treatise contending that a proper foundation had not been laid. Defendant's expert witness testified that he was familiar with the book, that he had studied under the editors of the book, had used it during his studies and that it was accepted as one of the many books in the field. There is no merit in this enumeration of error. State Highway Department v. Willis, 106 Ga.App. 821, 824, 128 S.E.2d 351 (1962).
5. The eighth and twelfth enumerations of error contend the trial court erred in allowing two witnesses for the state to give their opinions as to the sanity of the defendant. Both witnesses testified as to the length of time they had known defendant and the opportunity to observe defendant's conduct.
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