Ross v. State
| Decision Date | 05 February 1980 |
| Docket Number | No. 35568,35568 |
| Citation | 245 Ga. 173,263 S.E.2d 913 |
| Parties | ROSS v. The STATE. |
| Court | Georgia Supreme Court |
Alex Davis, Butler, for appellant.
William J. Smith, Dist. Atty., Arthur K. Bolton, Atty. Gen., Mary Beth Westmoreland, Staff Asst. Atty. Gen., for appellee.
Freddie D. Ross appeals his conviction for the murder of Johnny Jack Robinson. The state sought the death penalty but the jury returned a verdict of life imprisonment.
The jury heard evidence authorizing the following facts to be found: Freddie D. Ross and Ricky Duggar had been planning to rob Johnny Jack Robinson for about three weeks prior to the morning when Ross came to the Duggar residence and told Ricky Duggar that the time for the robbery had arrived. Ross told Ricky to get his mother's gun. Ricky got an unloaded .22 caliber pump rifle from his mother's bedroom closet, and he and Ross, joined by his brother Tommy Duggar, left the Duggar house and stood between the Robinson and Duggar houses awaiting the arrival of Robinson. Ricky told Tommy to walk down the road and watch for other cars. As Robinson pulled into the driveway, Ross and Ricky moved toward him. Ross asked Ricky for the rifle, loaded it with several cartridges, and shot Robinson three times. Ricky saw Robinson being hit by the bullets and saw him fall to the ground.
Ross and Ricky then summoned Tommy. Ricky took Robinson's wallet from Robinson's pocket and handed it to Ross. While Ross and Tommy stood by Robinson, Ricky broke into the Robinson house and took Robinson's .410 shotgun and .22 rifle, which he gave to Ross. Ross handed the wallet back to Ricky, who took $20 for himself and $10 for Tommy and gave the wallet back to Ross still containing a substantial sum of money. The Duggars then took their mother's rifle back to her closet and went to bed.
When Ross was arrested at his home pursuant to a warrant, he was advised of his rights, signed a waiver, and agreed to tell the investigating officer about the case. The officer told Ross that Ricky and Tommy had given statements implicating Ross. Ross replied, His statement was admitted in evidence after the trial court determined during a Jackson-Denno hearing that it had been given voluntarily.
Ross later denied planning or participating in the robbery or homicide. He denied making the statement to the investigating officer. He testified that he was at his house at the time of the offenses. His mother, brother and sister supported his alibi defense with their testimony. The Duggars pled guilty and testified in behalf of the state.
Medical testimony indicated that Robinson died from injuries caused by three bullets recovered from his body. Ballistics testimony indicated that these three bullets recovered from Robinson's body and the empty .22 caliber cartridge cases found at the scene had been fired in the .22 caliber pump rifle that Mrs. Duggar voluntarily gave to the investigating officers.
The foregoing evidence when viewed in the light most favorable to support the verdict was sufficient to enable a rational trier of the facts to find Ross guilty beyond a reasonable doubt. Jackson v. Virginia, 443 U.S. 307, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979).
1. Ross first contends that the trial court erred in admitting in evidence the results of his polygraph examination. His former retained counsel raised no objection to these test results being admitted in evidence because of a stipulation signed by Ross, his counsel and the district attorney that the "written report will be introduced into evidence, without objection by either side, at the time of the polygraphist's testimony at any trial or hearing involving this indictment." His current counsel contends that State v. Chambers, 240 Ga. 76, 239 S.E.2d 324 (1977), should be reconsidered and reversed, and that this court should declare that the polygraph evidence was inadmissible and without probative value. A majority of this court prefers to adhere to the Chambers decision. The polygraph operator testified that in his opinion the answers given by Ross concerning the homicide were deceptive. As in Chambers, the test evidence was not necessary to support the verdict. The first enumeration of error is without merit.
2. Ross next contends that the trial court should have charged, without request, concerning the meaning of the polygraph evidence. A majority of this court adheres to the ruling in State v. Chambers, 240 Ga. 76, 80, 239 S.E.2d 324, 327, supra, that, "When polygraph results are admitted at trial, either party is entitled, upon request, to have the jury charged concerning the meaning of this evidence." (Emphasis supplied.) No request to charge on the meaning of the polygraph evidence was made and no exception to the charge as given was stated. Furthermore, the transcript establishes that the polygraph operator was conceded to be an expert and his opinions were conceded to be opinions of an expert. The trial court charged generally on expert testimony that, The jury was bound to have known that this charge applied to the testimony of the polygraph operator. There is no merit in this enumeration of error.
3. Tommy Duggar testified during direct examination that he had not been promised what his sentence would be if he would testify in the present case. He testified that he did hope he would get lenient or favorable treatment from the court after pleading guilty and testifying. On cross examination, he reiterated that he did not know the penalty he was going to get. The following exchange then occurred: ...
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Huzzie v. State
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