Parham v. State

• Decision Date: 02 July 1975
• Docket Number: No. 1,No. 50526,50526,1
• Parties: D. C. PARHAM v. The STATE
• Court: Georgia Court of Appeals

Page 493

217 S.E.2d 493

135 Ga.App. 315

D. C. PARHAM v. The STATE.

No. 50526.

Court of Appeals of Georgia, Division No. 1.

July 2, 1975.

Ken Stula, Athens, for appellant.

Clete D. Johnson, Dist. Atty., Royston, for appellee.

MARSHALL, Judge.

Appellant was tried for murder for shooting a Madison County deputy sheriff at 3:00 a.m. on August 5, 1974. He was convicted of voluntary manslaughter and sentenced to 20 years. He filed a motion for new trial listing 11 special grounds of error, eight of which are also grounds for his enumeration of error in this appeal. The primary issues are whether or not appellant's incriminating statements were voluntary; the late furnishing of the list of witnesses; whether or not a charge on voluntary manslaughter was warranted by the evidence; and a violation of the rule of sequestration. Held:

1. Shortly after the shooting incident, appellant signed the following written statement for policemen: 'I started to pull out of James' driveway and I saw the Sheriff's car go down the road toward Georgia 191. I stopped and started backing up. The Deputy was turning around and coming back. I went to the front door and I couldn't get anybody to the front. I went to the back door and Joe got up. I told Joe that the Sheriff or his Deputy was down there. Joe told me to go down there and tell him to stop and he will come and talk to him. I got almost to the Sheriff's car. He opened the door and started to get out. I hollered: 'Hey, is there something you want?' He then started shooting and I drew my gun and I started shooting. He then lay over in the car and was breathing pretty hard.' The appellant also made an additional oral statement to the effect that to the best of his memory the deputy started shooting first but that he was not sure that he could have started shooting first.

Appellant contends that because he had been without sleep for almost 30 hours, and had not eaten in several hours, and was under medication for the gunshot wounds he received at the time the statements were given, they could not have been voluntary and were inadmissible. Beecher v. Alabama, 408 U.S. 234, 92 S.Ct. 2282, 33 L.Ed.2d 317; Clewis v. Texas, 386 U.S. 706, 712, 87 S.Ct. 1338, 18 L.Ed.2d 423. We disagree. At the hearing of appellant's motion to suppress the written statement, the officers present when appellant made the statement testified he was fully advised of his rights and waived them, that appellant did not appear under the influence of alcohol or drugs, and that he was not coerced or threatened. The trial judge, based on this testimony, determined that the statements were voluntary and admitted them. At the close of the evidence he instructed the jury that it could consider the statements made by appellant only if freely and voluntarily made.

Whether or not these statements were admissions or were exculpatory in nature (see Robinson v. State, 232 Ga. 123(2), 205 S.E.2d 210) they were properly admitted. 'While legality, duration, and conditions of detention are of course relevant for consideration and determination of whether a confession is voluntary, nothing here appears to require a determination as a matter of law that by reason of illegal detention, length of detention, and the conditions here shown, the confession as a matter of law was coerced and involuntary, and therefore inadmissible in evidence. Instead, we think the trial judge was authorized to determine from the circumstances that the confession was voluntary and admissible.' Wilson v. State, 229 Ga. 395, 397, 191 S.E.2d 783, 784. See also, Allen v. State, 231 Ga. 17(2), 200 S.E.2d 106; Claybourn v. State, 190 Ga. 861(1), 11 S.E.2d 23.

2. Appellant contends that because he was not furnished a list of witnesses until after his arraignment and the day before his trial, it was error for the trial judge to deny his request for a continuance. The record shows that appellant's counsel demanded a list of witnesses in writing on August 22, 1974, and was told by the district attorney that the witnesses he intended to call were listed on the indictment, a copy of which counsel could obtain at the clerk's office; that appellant was arraigned on the morning of August 26, 1974; that a list of witnesses was furnished counsel that afternoon, at which time appellant also received a copy of the indictment listing 12 witnesses; and that appellant's trial commenced the morning of the following day. At the trial, 10 of the 12 witnesses listed on the indictment testified for the state. One additional witness testified for the state (a policeman) who was not listed on the indictment. There was no showing by the state that the witnesses to be called by it were made known to appellant at any time prior to the afternoon preceding the trial. Nor did the district attorney state that any of the witnesses were 'newly-discovered.'

Was such a late furnishing of the list of witnesses so late as to show an abuse of the trial court's discretion in denying appellant's request for continuance? In Fishman v. State, 128 Ga.App. 505, 197 S.E.2d 467, this court held that furnishing the list of witnesses just prior to arraignment 'abridged the substantial benefits of the constitutional right to representation by counsel,' citing Ivey v. State, 107 Ga.App. 646, 131 S.E.2d 114. In Davis v. State, 135 Ga.App. 203, 217 S.E.2d 343, we found that a list furnished the day before the trial commenced to be 'too late to be adequate.' Yet, in Favors v. State, 234 Ga. 80, 214 S.E.2d 645, furnishing the list '6 full days' prior to the trial was found to be timely so as not to amount to an abuse of the trial court's discretion.

The state, having made no showing in the record that the appellant was otherwise put on notice as to the witnesses to be called or that the appellant could not have been prejudiced thereby, the late furnishing in this case warranted a continuance for appellant. The state did not supply the list of witnesses 'on demand.' Code Ann. § 27-1403. 'A specious and empty compliance with the formalities of law which results in the withholding of that which the spirit of the law seeks to grant cannot be countenanced.' Fishman v. State, 128 Ga.App. 505, 511, 197 S.E.2d 467, 472, supra.

3. The appellant enumerates error in that the trial court instructed on the law of voluntary manslaughter when there was no evidence of 'sudden, violent, irresistible passion resulting from serious provocation.' The only evidence bearing on this issue is appellant's statement (Div. 1, supra), and it indicates that appellant shot the deputy in self-defense. The deputy fired 4 shots, at least 2 of which wounded the appellant. Appellant testified that he did not pull out his pistol until after he was shot and that he stopped firing when the deputy stopped. There is no evidence that appellant knew the deputy prior to the shooting and there had been no argument or feud between them. There was no evidence of appellant being in the heat of passion. The state attempted to show that the shooting was racially motivated. When the sheriff arrived at the scene and asked who shot his deputy, the appellant spoke up and said, 'I shot your goddamn nigger deputy.' While it is true, as the state contends, that being shot at by the victim may be 'serious provocation,' such would be true in nearly every self-defense case. In this case the state attempted to prove malice aforethought and the appellant self-defense. There was no evidence of voluntary manslaughter. See Stewart v. State, 234 Ga. 3(1), 214 S.E.2d 509; Gregg v. State, 233 Ga. 117(2), 210 S.E.2d 659; Williams v. State, 232 Ga. 203, 206 S.E.2d 37; Joyner v. State, 208 Ga. 435(4), 67 S.E.2d 221; Beckman v. State, 134 Ga.App. 118(1), 213 S.E.2d 527. The evidence here does not demand a verdict of murder, and there is evidence of self-defense which would authorize an acquittal. The error is therefore reversible. Joyner v. State, supra; Varnum v. State, 125 Ga.App. 57, 62-3, 186 S.E.2d 485.

4. In view of the pre-trial publicity of this case, to which nearly all of the jurors asked admitted having been exposed, appellant contends it was error for the trial judge to refuse his request to voir dire each juror out of the presence of the others. A reading of the voir dire transcript shows that in each instance that a juror admitted exposure to press stories of the incident, those jurors stated that they had not formed an opinion as to the guilt or innocence of the appellant from what stories they had seen or heard. Appellant has demonstrated no prejudicial error here. See, Butler v. State, 231 Ga. 276(2), 201 S.E.2d 448; Morgan v. State, 211 Ga. 172(1), 84 S.E.2d 365. Furthermore, there is no absolute right under Code Ann. § 59-705 to have each juror examined outside the presence of the others, but such a request addresses itself to the discretion of the trial judge. Whitlock v. State, 230 Ga. 700(5), 198 S.E.2d 865; Merrill v. State, 130 Ga.App. 745(3), 204 S.E.2d 632; Pass v. State, 227 Ga. 730(8), 182 S.E.2d 779; Smith v. State, 225 Ga. 328(5), 168 S.E.2d 587. There was no manifest abuse of discretion in this case.

5. The trial court's instruction on voluntary intoxication was not error...