Morris v. State
| Decision Date | 14 September 1971 |
| Docket Number | Nos. 26619,26620,s. 26619 |
| Citation | 228 Ga. 39,184 S.E.2d 82 |
| Parties | Donald Harold MORRIS v. The STATE (two cases). |
| Court | Georgia Supreme Court |
Syllabus by the Court
1. The challenge to the array, complaining that appellant was denied a jury representing a cross-section of the community, was properly denied.
2. Denial of the motion to dismiss the charges against the appellant was correct.
3. The voir dire questions complained of were not subject to the criticisms made of them.
4. The questions objected to upon cross examination of the appellant were not improper.
5. The enumerations of error relating to the requirements of Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694, are without merit.
6. The denial of the motion to strike portions of a witness' testimony relative to a memorandum was proper.
7. There was no fatal variance between the allegata and the probata as to ownership of money taken in the robbery.
8. Remarks and evidence as to other robberies allegedly committed by the appellant and the cautionary remarks pertaining thereto were not objectionable.
9. The motion for mistrial predicated upon the witness' testimony that appellant stated that he wanted to enter a 'plea' was properly denied.
10. The charge that the district attorney's office had previously made a 'deal' with two witnesses is not ground to set aside appellant's conviction and sentence.
11. There was no error in allowing the State's counsel to make a statement in his place.
12. The trial court properly denied appellant's motion for mistrial because of an answer given by a witness.
13. The court properly ruled that a necessary foundation had not been laid for the proof of making a previous contradictory statement within Code § 38-1803.
14. Impeachment was correctly made of a witness pursuant to Code § 38-1804.
15. Appellant's objection to a witness's testifying as to a route of travel was not valid since the witness had previously testified without objection as to the same subject.
16. No cause for reversal is shown in allowing recall and testimony of a witness as to conversations with other persons upon the ground that it explained his conduct.
17. The court correctly sustained objections to testimony that a witness had sought to obtain a job for the appellant, since this was irrevelant and did not qualify as character evidence.
18. The trial court properly denied a motion for mistrial complaining that the appellant was seen handcuffed by several of the jurors while leaving the courthouse.
19. Absence of the right of a defendant in a criminal case to a directed verdict under Georgia law is not violative of his constitutional rights.
20. Denial of appellant's motion for new trial on the general grounds was not erroneous.
21. Appellant's motion for mistrial because of remarks of State's counsel as to what had transpired was not erroneous and was properly denied.
22. Failure of the trial court to charge upon the defense of alibi was not error.
23. The charge to the jury on the defendant's statements was not confusing and misleading.
24. The trial court's charge to the jury with reference to evidence admitted for a limited purpose was not error.
25. The court did not err in charging the jury as to what it must find before considering evidence of incriminatory statements.
26. The court's charge on reasonable doubt was not confusing and misleading.
27. The charge on the offense of murder was authorized and was accurate and complete.
28. The court's re-charge was responsive to the request therefor and was complete.
29. The amended motion for new trial was properly denied.
Gambrell, Russell, Killorin, Wade & Forbes, Edward W. Killorin, Richard L. Stumm, Atlanta, for appellant.
Lewis R. Slaton, Dist. Atty., Joel M. Feldman, Tony H. Hight, J. Melvin England, Arthur K. Bolton, Atty. Gen., Harold N. Hill, Jr., Executive, Asst. Atty. Gen., Courtney Wilder Stanton, Mathew Robins, Asst. Attys. Gen., Atlanta, for appellee.
These two appeals are by Donald Harold Morris from judgments of conviction and sentence to life imprisonment for murder and armed robbery, and also from denial of his amended motions for new trial. He was indicted for these offenses along with James L. Norwood, Paul Douglas Pearce and Donald Bridges by the grand jury of Fulton County, and was tried and convicted in the superior court of that county. The victim of the murder was Santos Martinez and of the robbery was George Nastapoulos. The appellant was tried separately for both offenses upon one trial.
His appeal involves 36 enumerations of error.
1. One enumeration complains of denial of the appellant's challenge to the array because Code Ann. § 59-112 exempts numerous persons from jury duty and thereby deprives him of a jury representing a cross-section of the community and the impartiality to which he is entitled under the Sixth and Fourteenth Amendments of the United States Constitution, and denies him due process of law, equal protection of law, a fair and proper jury trial, and freedom from cruel and unusual punishments in violation of the Fifth, Sixth, Eighth and Fourteenth Amendments to that Constitution and in violation of the Georgia Constitution.
This complaint is not valid. See Manor v. State, 223 Ga. 594(1), 157 S.E.2d 431; Robinson v. State, 225 Ga. 167(2), 167 S.E.2d 158; Simmons v. State, 226 Ga. 110, 112(3), 172 S.E.2d 680. Nothing in Witherspoon v. Illinois, 391 U.S. 510, 88 S.Ct. 1770, 20 L.Ed.2d 776, supports appellant as to this.
2. He contends that the trial court erroneously denied his motion for dismissal of charges against him. The motion alleged in substance that he had not been arraigned, that while in custody the prosecuting officers tried to coerce, intimidate and harass him; and that he was denied a copy of the warrant and indictment.
The trial court correctly denied this motion. The record shows that the appellant was arraigned. The trial court heard testimony denying any such mistreatment and apparently chose to believe it instead of the appellant's testimony. Likewise, the allegation as to being denied a warrant and copy of the indictment was not established.
3. Another enumeration avers that the trial court erred in allowing State's counsel to ask improper hypothetical questions to prospective jurors on voir dire because such questions sought to define what each juror would do under a generalized state of facts. However, the questions related to impartiality and adherence to law, and therefore were not subject to the criticism made of them.
4. Also urged as erroneous is the overruling of appellant's objection to the State's questions upon cross examination of him when he was testifying in support of his motion to dismiss at the preliminary hearing. In this connection he argues that the questions concerning portions of an alleged memorandum of an alleged statement, which he denied making, were outside the scope of the examination, were irrelevant to the hearing on the motion to dismiss, and infringed upon and damaged his right to make an unsworn statement in the jury trial occurring immediately thereafter.
The objections to these questions were properly overruled. They were germane to the matters involved in the motion, and in keeping with the State's right to a thorough and sifting cross examination.
5. Three of the enumerations involve admissibility of evidence under the requirements of Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694.
(a) The appellant insists that the trial court erred in overruling his motions upon the preliminary hearing and upon the trial to suppress the aforementioned alleged oral statement made by him to an investigator for the district attorney's office and allegedly reduced to writing in an unsigned memorandum.
As to this, appellant urges that he did not make the statement, but assuming that he did, it was made under circumstances which deprived him of his rights under the Fifth and Fourteenth Amendments to the United States Constitution. He says that it was made after he was arrested, detained an unreasonable time without arraignment, coerced, threatened and offered promises to induce him to talk, but before he was shown a copy of the charges and without being informed of his rights as required by the Constitution of the United States, his right to counsel, to remain silent and not to discuss the matter without counsel being present, to have counsel before talking and to have counsel appointed if he had no funds to hire counsel.
(b) Appellant also insists that the purported written waiver that the State had him sign did not properly and lawfully warn him of the right to remain silent with the explanation that anything said can and will be used against him in court. Appellant avers that he was not otherwise so warned and that such failure, followed by the interrogation which occurred, deprived him of his right against self-incrimination under the Fifth and Fourteenth Amendments to the United States Constitution.
Neither of these enumerations is meritorious.
The State offered testimony which contradicted the allegations recited above.
From the State's evidence the trial court was authorized to find that prior to any questioning the appellant was properly advised as to his rights under the Miranda case, supra, both orally and by the waiver of counsel form that he read and signed. That the warnings here stated that anything said 'could be used' and 'may be used' instead of 'can and will be used' is an inconsequential difference, as numerous cases have held, e.g., United States v. Grady, 423 F.2d 1091 (C.C.A. 5).
(c) The appellant also enumerates as error introduction in evidence of the waiver of counsel form hereinbefore referred to upon the same grounds as set forth in the motion to suppress. The rulings made in (a) and (b) control adversely to him here. See Walker v. State, 226 Ga. 292(3), ...
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