Morgan v. State

• Decision Date: 16 February 1982
• Docket Number: Nos. 63180,63181 and 63182,s. 63180
• Citation: 161 Ga.App. 484,287 S.E.2d 739
• Court: Georgia Court of Appeals
• Parties: MORGAN v. The STATE. STONE v. The STATE.

Page 739

287 S.E.2d 739

161 Ga.App. 484

MORGAN v. The STATE.

STONE v. The STATE.

Nos. 63180, 63181 and 63182.

Court of Appeals of Georgia.

Feb. 16, 1982.

Douglas W. Mitchell, III, Douglas, for Morgan.

J. Laddie Boatright, Hazelhurst, for Stone.

C. Deen Strickland, Dist. Atty., Waycross, for appellee.

BANKE, Judge.

Morgan and Stone were indicted for a June 1980 robbery and attempted escape. The attempted escape charge against Morgan was severed prior to trial; and, after some evidence had been received, the attempted escape charge against Stone was also severed. Both defendants were convicted of robbery by force. Case No. 63180 is Morgan's appeal from this conviction, and case No. 63182 is Stone's appeal.

Morgan was also indicted for a May 1978 armed robbery and escape, and he was convicted of these offenses in a separate trial. Case No. 63181 is his appeal from these convictions.

Both defendants enumerate as error the denial of their challenge to the array of jurors. Morgan based his challenge upon the ground that the jurors who heard the case were from the same panel from which jurors had been selected to hear the charges against him for the 1978 armed robbery and escape. He argues that he was prejudiced in that jurors who convicted him of robbery by force had been made aware of the other charges against him during the voir dire in the prior trial. Stone argues that the jurors' knowledge of the other charges against Morgan prejudiced him as well, because he was tried with Morgan. The state contends that the jurors' awareness of the other charges against Morgan was not grounds for their disqualification and that, even if it was, the challenges were properly denied because they were orally made. Held :

1. "The accused may, in writing, challenge the array for any cause going to show that it was not fairly or properly impaneled, or ought not to be put upon him; the sufficiency of which challenge the court shall determine at once. If sustained, a new panel shall be ordered; if not sustained, the selection of jurors shall proceed." Code § 59-803. The challenge was made orally; however, the record reveals that a written motion was filed prior to the hearing on the defendant's motions for new trial. " '[W]here a person accused of a crime is not afforded the opportunity to make appropriate objections to the illegal composition of the grand jury or the traverse jury before indictment or during the progress of the trial, he may raise the issue by motion for new trial or by habeas corpus proceedings.' Cobb v. State, 218 Ga. 10, 22(4), 126 S.E.2d 231." McKenzey v. State, 138 Ga.App. 88, 89, 225 S.E.2d 512 (1976). The state concedes that an oral challenge followed by a written challenge is proper, but argues that the defendants either were aware or should have been aware that both cases were to be tried, and that therefore the "lack of opportunity" exception referred to above is not available to them. We do not agree. We cannot conclude that the defendants were bound to anticipate beforehand that both juries would be drawn from the same panel. Therefore, we will consider the challenge on its merits.

During voir dire prior to Morgan's armed robbery trial, the panel learned the nature of the charges against Morgan, and that possibly there had been a newspaper or other media account of the crime. No attempt was made by counsel for either defendant prior to the joint trial to disqualify prospective jurors based on this knowledge. See generally Bryan v. State, 124 Ga. 79, 52 S.E. 298 (1905). The trial court determined that the jurors put upon the defendant were qualified and impartial. We find no error.

2. Both defendants urge that their motions for new trial should have been granted on the general grounds. Prior to the severance of the attempted escape charges, the state's attorney offered documentary evidence to prove that at the time of the alleged escape attempt on June 26, 1980, Stone was serving a sentence imposed following an October 1979 conviction for aggravated assault. Although this evidence was clearly relevant to the escape charge (see Fears v. State, 138 Ga.App. 885(1), 227 S.E.2d 785 (1976)), the trial court refused to admit it because the assault conviction had been reversed on appeal several days before the escape charges came to trial. The trial court then directed a verdict of acquittal as to Stone's escape charge on the basis of lack of evidence that the defendant was lawfully confined at the time of the attempted escape. Stone now urges, for the first time, that since the state failed to prove the basis for his confinement, he had the right to use "proportionate force to free himself," and that therefore his conviction of robbery by force must fall. The "proportionate force" argument here is an attempt on appeal to assert an affirmative defense which was not supported by evidence at trial. See generally Code Ann. § 26-401(a). The motion for directed verdict on the robbery count was properly denied. The state's evidence showed that as Stone was being returned to his cell after making a phone call, he grabbed his jailer and moved him to a cell where Morgan was located. While Stone held the jailer, Morgan took the jailer's keys. There was testimony that the keys were of some value. From the evidence presented, a rational trier of fact could reasonably have found proof of guilt beyond a reasonable doubt. Jackson v. Virginia, 443 U.S. 307, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979).

3. Both defendants enumerate as error the trial court's exclusion of testimony sought from the sheriff on cross examination, after he had testified as to the value of the jail keys, concerning a former inmate of the jail. Although given ample opportunity, counsel was unable to demonstrate the relevance of this line of questioning. The trial court properly excluded the testimony. See generally Code Ann. § 38-201; Flynt v. State, 153 Ga.App. 232(1), 264 S.E.2d 669 (1980).

4. Defendant Morgan enumerates as error the denial of his motions for mistrial based on comments of the district attorney in his opening statement to the effect that both defendants robbed the jailer of the keys, attempted "to make a get away," and were "both stopped." It is argued that this comment was an impermissible reference to the attempted escape charges which had been severed. The evidence was relevant as part of the res gestae of the robbery offense, and the comments were accordingly appropriate. See generally Johnson v. State, 148 Ga.App. 702, 252 S.E.2d 205 (1979).

5. The district attorney in closing argument referred to the charge as "armed robbery," whereupon he immediately corrected himself, and apologized, stating that he meant "robbery by force." The trial court overruled the defendant's motion for mistrial and instructed the jurors to erase any reference to armed robbery from their minds. We find no abuse of discretion on the part of the trial court and no possibility of harm to the defendants. See ...