Mullins v. State

• Citation: 496 S.E.2d 252,269 Ga. 157
• Decision Date: 02 March 1998
• Docket Number: No. S98A0010,S98A0010
• Parties: , 98 FCDR 751 MULLINS v. The STATE
• Court: Supreme Court of Georgia

Page 252

496 S.E.2d 252

269 Ga. 157, 98 FCDR 751

MULLINS v. The STATE

No. S98A0010.

Supreme Court of Georgia.

March 2, 1998.

Richard Thurman, Jasper, for Joe Lee Mullins.

Roger Queen, Ellijay, Dist. Atty., Allison Beth Goldberg, Asst. Atty. Gen., Paula K. Smith, Senior Asst. Atty. Gen., Department of Law, Atlanta, William B. Britt, Asst. Dist. Atty., Ellijay, for the State.

BENHAM, Chief Justice.

Thomas Eugene Welch's body was found along Price Creek Road in Pickens County, Georgia, on April 7, 1996. Nothing was found in the pockets of the 67-year-old victim's clothing, and no jewelry was found on the body. He had last been seen alive on April 5, in the company of appellant Joe Lee Mullins, who had placed the intoxicated Welch in the backseat of Mullins' car. Witnesses reported that the victim, described as a "street person" with an alcohol problem, owned a watch and knife and had cashed a government benefits check shortly before he was last seen. An autopsy revealed that he had been stabbed multiple times on his neck and head and had bled to death from his wounds. ¹ Investigators found fourteen cigarette filters "pinched off" from the tobacco-laden portion of the cigarettes at the site where the victim's body was discovered. A search of appellant's car revealed fifteen cigarette filters consistent in appearance with those found at the crime scene, as well as local newspapers reporting the victim's death. Ten more "pinched" cigarette butts were found at appellant's home, and a witness testified that appellant smoked cigarettes after pinching off the filters. A pocket knife identified as looking like the one which belonged to the victim was found in appellant's possession. A GBI microanalyst testified that an unusual impression on the victim's left wrist could have been made by a watch recovered from appellant's former wife who testified that appellant had given her the watch shortly after the victim was last seen alive. The State also presented extrinsic crime evidence, consisting of appellant's 1980 conviction for voluntary manslaughter in Gilmer County in connection with the death of an "alcoholic street person" whose body had been found off Price Creek Road just north of the Pickens/Gilmer county line.

1. The evidence was sufficient to authorize a rational trier of fact to find appellant guilty of malice murder and armed robbery beyond a reasonable doubt. Jackson v. Virginia, 443 U.S. 307, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979). A conviction based on circumstantial evidence is authorized when every reasonable inference and hypothesis except that of guilt is excluded by the evidence. Brown v. State, 260 Ga. 153(1), 391 S.E.2d 108 (1990). When the evidence presented by the State is viewed in the light most favorable to the jury's verdict, the jury could have found that every reasonable hypothesis except the guilt of appellant was excluded. Id.

2. Appellant next contends that the trial court erred when it admitted evidence of appellant's Gilmer County voluntary manslaughter conviction. Appellant maintains that the extrinsic crime was not similar to the crime for which appellant was being tried, and that the 17-year lapse in time between the Gilmer County incident and the death of the Pickens County victim made the extrinsic crime too remote in time to be admissible pursuant to Rule 31.3 of the Uniform Superior Court Rules. See also Williams v. State, 261 Ga. 640, 409 S.E.2d 649 (1991). The trial court ruled the Gilmer County conviction admissible after finding it "substantially relevant for the purpose of showing the course of conduct and bent of mind of the Defendant."

"The test of admissibility of evidence of other criminal acts by the defendant is not the number of similarities between the two incidents. Rather, such evidence 'may be admitted if it is substantially relevant for some purpose other than to show a probability that the defendant committed the crime on trial because he is a man of criminal character....' [Cit.]" Maggard v. State, 259 Ga. 291(2), 380 S.E.2d 259 (1989). After reviewing the record, we cannot say that the trial court was clearly erroneous when it ruled that the Gilmer County crime was sufficiently similar to the crime being tried to authorize the admission of evidence of the former in the trial of the latter. Stephens v. State, 261 Ga. 467, 469(n. 2), 405 S.E.2d 483 (1991). As for the lapse in time between the extrinsic crime and the crime for which appellant was being tried, while the passage of time is one of the more important factors to weigh in considering the admissibility of the evidence in question, it is not wholly determinative. Campbell v. State, 234 Ga. 130, 132, 214 S.E.2d 656 (1975). See also Gilstrap v. State, 261 Ga. 798, 800, 410 S.E.2d 423 (1991) (Benham, J., concurring). The 17-year lapse in this case is mitigated somewhat by the fact that appellant was incarcerated for eight of those years. Harden v. State, 211 Ga.App. 1(1), 438 S.E.2d 136 (1993).

3. Several times during the trial, the trial court interposed questions to the testifying witness. Appellant argues that the trial court's inquiries amounted to an abuse of discretion and violated the statutory prohibition, embodied in OCGA § 17-8-57, against the trial court's expression or intimation of its "opinion as to what has or has not been proved or as to the guilt of the accused." ² It has long been part of Georgia jurisprudence that a trial judge may propound questions to any witness for the purpose of developing fully the truth of the case, and the extent of such an examination is a matter for the trial court's discretion. Marcus v. State, 149 Ga. 209...