Patterson v. State

• Decision Date: 06 September 1977
• Docket Number: No. 32149,32149
• Citation: 239 Ga. 409,238 S.E.2d 2
• Court: Georgia Supreme Court
• Parties: Roy L. PATTERSON v. The STATE.

Page 2

238 S.E.2d 2

239 Ga. 409

Roy L. PATTERSON v. The STATE.

No. 32149.

Supreme Court of Georgia.

Sept. 6, 1977.

John J. Carroll, Morris S. Dees, Jr., Montgomery, Ala., C. B. King, Albany, Millard Farmer, Atlanta, for appellant.

D. E. Turk, Dist. Atty., Abbeville, Arthur K. Bolton, Atty. Gen., Harrison Kohler, Asst. Atty. Gen., Atlanta, for appellee.

HALL, Justice.

Appellant, Roy Lee Patterson, appeals two consecutive life sentences imposed for the murder convictions of two Crisp County law enforcement officers.

On the evening of May 4, 1975, appellant, his wife Virginia and their baby left Albany in their Ford Pinto to lead appellant's mother, Bessie Patterson, and brother, Joe Patterson, to the I-75 Interchange at Cordele. Joe Patterson was driving a Ford Mustang. As they entered Cordele, the Pinto stopped for gas at a Minit Mart; the Mustang followed. While in the parking lot, Joe Patterson was approached by State Trooper James Young regarding a defective headlight. He was also asked to take an alcoholic breath test. As he was taking the test appellant inquired into the situation. There is conflicting testimony as to what transpired next, but some indication that Trooper Young and appellant got into an argument. Thereafter, Trooper Young took Joe Patterson to the Cordele police station for an intoximeter test. Appellant followed in the Pinto with his wife and child. Bessie Patterson attempted to follow in Joe's Mustang but got lost.

When appellant and his wife arrived at the police station, his brother and Trooper Young were already inside. Appellant went in, followed by his wife and baby. Dispatcher W. R. Haralson was the only police officer on duty. Appellant and Trooper Young got into another argument; Young attempted to handcuff appellant; a struggle ensued; both Trooper Young and Officer Haralson were killed with Young's service pistol. The eyewitnesses who testified concerning the events surrounding the killings were appellant and his wife. Joe Patterson did not testify and Bessie Patterson was not a witness to the shootings.

After the shootings, appellant, his wife and brother ran out of the police station, got into the Pinto and drove around Cordele looking for Bessie Patterson. The Pinto was seen leaving the station after the shooting. Appellant and his wife were arrested as they were leaving Cordele; Joe and Bessie Patterson were arrested in the Mustang on I-75 later that night. When appellant was arrested, he still had the handcuffs attached to his left wrist.

The state's key witness was Sheriff Benson. He testified that on the night of his arrest, appellant freely told him what had transpired. This statement was later typed up, but never signed by appellant. The state's evidence also showed that all six rounds of Young's pistol were fired. The first shot hit no one, Young was shot with the second and third rounds, and Haralson was shot with the other three rounds. Young's first wound was a mortal head wound; he was subsequently shot in the chest as he lay on the floor. Haralson was shot three times in the stomach. He was unarmed at the time.

Appellant and his wife both testified to the following facts. Upon appellant's inquiry into Joe Patterson's detention, both at the Minit Mart and the police station, Trooper Young cursed at him and told him to keep quiet and not interfere. When appellant and his wife attempted to leave the station, Young grabbed appellant and took a swing at him. Young succeeded in handcuffing appellant's left wrist, but when Young went for his pistol, the appellant was afraid for his wife's life and his own life, so he grabbed the pistol away from Young. Appellant claimed the pistol went off three times before he obtained possession, and Young allegedly fell after the third shot. He was then charged by Haralson at whom he proceeded to fire until the pistol was empty. Appellant's wife testified that she did not see the shooting; she heard several rapid shots and looked up to see her husband standing and the officers on the floor. Appellant contends that he never signed the statement prepared from his discussion with Sheriff Benson because it inaccurately reflected what was said at that meeting.

Appellant was indicted on July 29, 1975 for the murders of Haralson and Young. He was tried by jury and found guilty as charged. The jury was unable to reach a punishment verdict; the court imposed two consecutive life sentences. Appellant's motion for new trial was denied; he appeals.

1. Appellant contends that the court erred in failing to excuse jurors Kight and Posey for cause, thereby requiring him to utilize two of his peremptory strikes. We find this contention to be without merit.

The conduct of the voir dire is within the discretion of the trial court, and the court's rulings are proper absent some manifest abuse of discretion. Welch v. State, 237 Ga. 665(5), 229 S.E.2d 390 (1976); Gatlin v. State, 236 Ga. 707(2), 225 S.E.2d 224 (1976). Whether to strike a juror for cause lies within the discretion of the court. Welch, supra 237 Ga. at 671, 229 S.E.2d 390. We have carefully reviewed the record and fail to find any abuse of discretion. These two allegedly biased jurors did not sit on the jury which convicted appellant, nor has he shown that he was prejudiced or harmed because he used peremptory strikes to eliminate the two challenged jurors. See People v. Silvola, Colo., 547 P.2d 1283(9) (1976), cert. den., 429 U.S. 886, 97 S.Ct. 238, 50 L.Ed.2d 167 (1976).

2. Appellant contends that the trial court erred in denying his motion for mistrial based on the prosecutor's closing remarks regarding an item of evidence which was never admitted.

The granting or refusal to grant a mistrial lies within the discretion of the trial court and will not be reversed on appeal absent an abuse of that discretion. Woods v. State, 233 Ga. 495, 498, 212 S.E.2d 322 (1975). "In passing on a motion for mistrial because of an improper statement of a prosecutor, the trial judge may take such action as in his judgment will prevent harm to the defendant, and a new trial will not be granted unless it is clear that such action failed to eliminate the statement from consideration by the jury." Watkins v. State, 237 Ga. 678, 682-683, 229 S.E.2d 465, 469 (1976).

The unadmitted evidence referred to by the prosecutor in his closing remark was a piece of bloodstained carpet found beneath Trooper Young's body. The court instructed the jury that they were to erase this reference from their minds and not give any consideration to it. Several state's witnesses testified that the bullet hole in the floor was beneath Trooper Young's body. The introduction of the carpet was therefore not necessary to prove that fact. In light of the evidence and the court's corrective instructions, we find that the trial judge did not abuse his discretion in denying the motion for mistrial.

3. Appellant contends that the denial of his motion for funds to employ experts essential to his defense was error.

Appellant's motion for leave to proceed in forma pauperis was granted by the trial court. Thereafter he sought $3,200 to employ the services of a criminologist, a ballistics expert, and a fingerprint expert. These requests were denied.

The granting or denial of a motion for appointment of expert witnesses lies within the sound discretion of the trial court. Unless there has been an abuse of discretion, the trial court's ruling will be upheld. Welch v. State, 237 Ga. 665(8), 229 S.E.2d 390, supra.

The witnesses to the killings were appellant, his wife and his brother. The only state's eyewitnesses, Young and Haralson, were killed. Since appellant was present during the killings and testified to those events, it was not an abuse of discretion for the trial court to deny the appointment of an independent criminologist to help him reconstruct the crime scene. The state on the other hand had no choice but to use a criminologist to reconstruct the crime scene, since their only two eyewitnesses were dead.

No fingerprints were introduced into evidence. Appellant has made no showing of how he was harmed by the court's failure to appoint him an independent fingerprint examiner. Therefore, this bare claim of error presents nothing for review. Coker v. State, 234 Ga. 555(3), 216 S.E.2d 782 (1975).

Two state crime lab experts gave ballistics testimony for the state. There is no evidence that they were incompetent, or that they failed to report the facts as found. They were both given a thorough and sifting cross examination by appellant's counsel. Appellant sought funds to hire an independent ballistics expert to examine the murder weapon and the bullets obtained from the law enforcement officers, to test fire the weapon, to make comparisons, and to advise him and his counsel. The state had no objection to his having his own ballistics expert, but did not find any state statute or case law requiring the public treasury to finance an independent analysis under the circumstances of this case. We agree.

Our recent decision holding that a defendant charged with possession or sale of a contraband substance has the right to have an expert of his own choosing analyze the substance is distinguishable. Patterson v. State, 238 Ga. 204, 206, 232 S.E.2d 233 (1977). The defendant's conviction in Patterson rested entirely on the identification of the substance as contraband. We do not have that situation here. Patterson does not stand for the proposition that a defendant's request for funds to hire independent experts must always be granted to avoid due process violations. Because the State Crime Lab personnel were not shown to be biased or incompetent, and because appellant's conviction did not rest entirely on the State Crime Lab's analysis, we find that the trial court did not abuse its discretion in refusing to appoint an independent ballistics expert.

4. Appellant raises three arguments challenging the trial court's...