Park v. State

• Decision Date: 03 October 1969
• Docket Number: No. 25385,25385
• Citation: 170 S.E.2d 687,225 Ga. 618
• Parties: A. C. (Cliff) PARK v. The STATE.
• Court: Georgia Supreme Court

Page 687

170 S.E.2d 687

225 Ga. 618

A. C. (Cliff) PARK v. The STATE.

No. 25385.

Supreme Court of Georgia.

Oct. 3, 1969.

Rehearing Denied Oct. 8, 1969.

Syllabus by the Court

Whereas in the present case the evidence authorizes the verdict approved by the trial court and no error of law appears, the verdict and sentence must be affirmed.

This is the second appearance of this case before this court. On the first appearance the murder conviction of A. C. Park was reversed because the trial court refused to permit defendant's counsel to make the opening and concluding agreement to the jury. See Park v. State, 224 Ga. 467, 162 S.E.2d 359. Thereafter on the retrial of the case a motion for a change of venue and a motion to disqualify two members of the bar who were assisting in the prosecution of the case were heard. After hearing evidence these motions were overruled and on the trial the jury returned a verdict of guilty of murder and a death sentence was rendered. The appeal is from such verdict and sentence.

Wesley R. Asinof, Atlanta, for appellant.

Nat Hancock, Dist. Atty., Jefferson, George D. Lawrence, Dist. Atty., Eatonton, Arthur K. Bolton, Atty., Harold N. Hill, Jr., Exec. Asst. Atty. Gen., Marion O. Gordon, Mathew Robins, Asst. Attys. Gen., Atlanta, for appellee.

NICHOLS, Justice.

1. Assuming that the motion was timely filed, under the decision in Morgan v. State, 211 Ga. 172, 84 S.E.2d 365, and the numerous citations included therein, it was not error to deny the defendant's motion for a change of venue in the absence of a showing that the defendant could not obtain a fair and impartial jury in Jackson County.

(a) Nor, assuming that the motion was timely filed, did the trial court err in refusing to disqualify two special prosecutors on the grounds that they had previously represented the accused, since under the evidence on such issue the trial court was authorized to find that they did not represent the accused except as to matter separate and distinct from the matter under review, and it did not involve any confidential communications with reference to any issue involved in the present case. Compare Tucker v. Murphy, 114 Ga. 662, 665, 40 S.E. 836.

(b) The remaining ground of disqualification of these two special prosecutors was that they were representing the widow of the deceased in a civil action against the defendant and others arising as a result of the alleged murder. While we have found no Georgia case directly in point, it has been held that this alone is not ground for disqualification of a prosecuting attorney. See 27 C.J.S. District and Prosecuting Attorneys § 12(6), p. 665. Although some states have enacted statutes prohibiting such assistance (see 42 Am.Jur. 243 Prosecuting Attorneys § 10), in the absence of a statutory prohibition, since the conviction or acquittal of the criminal charge would not be admissible on the trial of the civil case, the mere fact that the attorneys are representing the widow of the deceased in the civil action would not disqualify them from assisting in the criminal prosecution.

2. Enumerations of error numbered 3 through 14 all complain of the excusing of prospective jurors who stated that they were conscientiously opposed to capital punishment. In no instance was a prospective juror excused merely for answering affirmatively that he or she was conscientiously opposed to capital punishment, but the prospective jurors were further questioned and a showing made that they could under no circumstances vote for a death penalty or that their belief would prevent them from making an impartial decision as to the defendant's guilt. Under such circumstances the excusing of such prospective jurors was not in conflict with the decision in Witherspoon v. Illinois, 391 U.S. 510, 88 S.Ct. 1770, 20 L.Ed.2d 776, but in accordance with such decision. See also Whisman v. State, 224 Ga. 793, 164 S.E.2d 719; Miller v. State, 224 Ga. 627, 636, 163 S.E.2d 730; Furman v. State, 225 Ga. 253(1), 167 S.E.2d 628.

3. Enumerations of error numbered 26 and 27 complain that two jurors were placed upon the defendant, and the defense was forced to accept them as jurors since they had exhausted their strikes, when such jurors were disqualified as having stated that they had fixed opinions. An examination of the record concerning the questions asked these jurors dealing with their qualifications shows an extreme effort to be honest in the answers given to the questions propounded by both counsel for the State and the defendant, and regardless of opinions previously expressed or feelings toward the deceased and his family, in the final analysis they stated that their opinions were not so formed that they could not give a fair and impartial hearing to the evidence presented and base their verdict on such evidence and not on a preconceived opinion. Neither was disqualified. See Roach v. State, 221 Ga. 783(2), 147 S.E.2d 299, and citations.

4. Enumerations of error numbered 15, 16 and 17 complain of the admission of declarations of two of the alleged co-conspirators inculpating Park. The questions presented by these enumerations of error were passed upon on the prior appearance of the case in this court adversely to Park except the question presented that the decision in Bruton v. United States, 391 U.S. 123, 88 S.Ct. 1620, 20 L.Ed.2d 476 requires a different result. In that case the court expressly did not rule upon recognized exceptions to the hearsay rule in its decision excluding confessions of co-conspirators not made in the presence of the accused and subject to cross-examination because such confessions are related in court by someone other than the one confessing such crime. The decision in Bruton v. United States does not require a ruling contrary to prior ruling by this court or the first appearance of the case. Nor does such decision require a different ruling on the questions presented in the 21st and 22nd enumerations of error which complain of the admission of conversations between co-conspirators one of which was the witness.

5. On the first trial of the case John Hyman Blackwell and Loyd George Seay, both co-indictees, testified for the State and were cross examined by the defendant's attorney. On the second trial both witnesses refused to testify relying on the Fifth Amendment privilege against self-incrimination. Thereafter, over the defendant's objection, the prior testimony of these witnesses was read to the jury. Later Seay was again called to the stand and orally testified to the same facts as had been previously read from the transcript of his prior testimony. Enumerations of error numbered 18 and 20 complain of the reading of the transcripts of the first trial.

In support of these enumerations of error the defendant relies upon cases exemplified by Barber v. Page, 390 U.S. 719, 88 S.Ct. 1318, 20 L.Ed.2d 255, where the testimony read to the jury was taken from a preliminary hearing where the defendant was not represented by counsel and the State had made no attempt to secure the witness so that he could be orally examined and cross examined by the defendant's counsel. Here while the witnesses were physically present in the courtroom they refused to testify. Each witness had been examined and thoroughly cross examined by defendant's counsel at the prior trial, and no right of confrontation of the witness was denied.

Code § 38-314 provides: 'The testimony of a witness, since deceased, or disqualified, or inaccessible for any cause, given under oath on a former trial, upon substantially the same issue and between substantially the same parties, may be proved by anyone who heard it, and who professes to remember the substance of the entire testimony as to the particular matter about which he testifies.' The question presented is, is a witness inaccessible when he is presented in the courtroom but refuses to testify? In Smith v. State, 147 Ga. 689, 95 S.E. 281, 15 A.L.R. 490, it was held that where a witness who had testified on a former trial of the accused and had been cross examined moved from the State and refused to return and testify, the former testimony could be read to the jury. See also Burns v. State, 191 Ga. 60, 11 S.E.2d 350. The refusal to testify by a witness on the stand makes his testimony just as inaccessible as his refusal to return to the State. It was not error to permit the former testimony of these witnesses to be read to the jury. Compare People v. Pickett, 339 Mich. 294, 63 N.W.2d 681, 45 A.L.R.2d 1341.

6. The nineteenth enumeration of error complains of the refusal of the trial court to declare a mistrial after the State asked Loyd George Seay if he had been offered money not to testify in the present case. The witness answered the question in the negative but later, during the trial when the witness was again placed on the...