Ruffin v. State

• Citation: 243 Ga. 95,252 S.E.2d 472
• Decision Date: 14 February 1979
• Docket Number: No. 33865,33865
• Parties: RUFFIN v. The STATE.
• Court: Supreme Court of Georgia

Page 472

252 S.E.2d 472

243 Ga. 95

RUFFIN v. The STATE.

No. 33865.

Supreme Court of Georgia.

Argued Sept. 12, 1978.

Decided Jan. 24, 1979.

Rehearing Denied Feb. 14, 1979.

Walton Hardin, Washington, for appellant.

Kenneth E. Goolsby, Dist. Atty., Arthur K. Bolton, Atty. Gen., Nicholas G. Dumich, Daryl A. Robinson, Asst. Attys. Gen., for appellee.

UNDERCOFLER, Presiding Justice.

Judson Ruffin was indicted in Taliaferro County with two others on a multi-count indictment. He was tried separately and convicted and sentenced as follows: for armed robbery and kidnapping (two counts) life imprisonment was imposed; for murder the death penalty was imposed; for aggravated assault ten years imprisonment was imposed (consecutive) and for possession of a firearm five years imprisonment was imposed (consecutive).

His case is before this court on direct appeal and for review of the death penalty imposed.

I. Summary of the Evidence.

The evidence produced at trial, including Ruffin's confession, justified the jury in finding the following facts:

In the late evening hours of July 26, 1976, Henry Lee Phillips was operating an AMOCO service station off I-20 near Crawfordsville, Georgia, with his eleven year old stepson, Bonnie Bulloch, helping him. A car pulled into the station with three occupants. The appellant and the two co-indictees, Nathan Brown and Jose High, were in the car. The car had been in the station a week or two earlier. The three men got out of the car and one pointed a pistol at Phillips. Appellant had a sawed-off shotgun. Phillips was forced to leave the booth while the appellant removed the money from the register and demanded any other money. When Phillips told him that there was no more money, the appellant grabbed Bonnie Bulloch and told Phillips to get in the car trunk or Phillips and the boy would be killed.

Phillips got in the trunk of the car and when he was released from the trunk found that they were in the woods. Phillips and his stepson were ordered to lie on the ground. Phillips then heard shots fired. When Phillips regained consciousness he discovered that Bulloch was dead. In his confession, the appellant stated that he shot the boy in the head while his cohorts also shot at the victims. Phillips had been shot in the temple and wrist. He managed to get to a nearby house and the sheriff was summoned.

The appellant and his two companions returned to Augusta and he was subsequently apprehended, apparently on a different charge.

II. Enumerations of Error.

1. Appellant alleges as his first enumeration that "(t)he Court erred in overruling the defendant's motion for a new trial on general grounds."

We have examined the transcript of trial and conclude that the verdict is not contrary to law or the evidence and there was ample evidence to support the verdict of the jury. Enumeration 1 is without merit.

2. In his second enumeration, the appellant alleges "(t)he Court erred in allowing G.B.I. Agent Chuck Monahan and Agent Bob Ingram to remain in the courtroom throughout the trial of the case, over objection of the defendant, Judson Ruffin."

The district attorney requested that the two agents remain in the courtroom to assist him in the prosecution of the case. Ga.Code Ann. § 38-1703 provides for sequestration of witnesses upon motion of a party. Its enforcement long has been vested in the discretion of the trial court. Jarrell v. State, 234 Ga. 410, 420, 216 S.E.2d 258 (1975); McNeal v. State, 228 Ga. 633(4), 187 S.E.2d 271 (1972); Thomas v. State, 27 Ga. 287(8) (1859).

We find no abuse of discretion by the trial court. Enumeration 2 is without merit.

3. In his third enumeration, the appellant alleges: "The Court erred in excluding the black jurors from the panel of 42, because the following named jurors stated that they were opposed to capital punishment: Janie Lou Evans; Mildred Moore; Brenda Stevens; Martha C. Turner; Arthur Lee Seals; Dorothy King; Eleanor Ruff; Calvin Turner; Mary Grace Thornton; Ruby Jackson; Mary Sanders; Elizabeth Bird; Calvin Thomas; Mabel Stewart Billingsley; Edna Swain; Martha Edwards; James Howell, and Willie Albert Jones."

Although the appellant alleges that eighteen prospective jurors were excused improperly under the standard established in Witherspoon v. Illinois, 391 U.S. 510, 88 S.Ct. 1770, 20 L.Ed.2d 776 (1968), we do not reach the same conclusion after reading the transcript of the voir dire examination of the panel members. All of the jurors excused because of conscientious objection to the death penalty made it unmistakably clear that they were unalterably opposed to imposition of the death penalty. They expressly stated so in the case of every excused venireman except Martha C. Turner and the context in which she responded it was clear that she was unalterably opposed to the death penalty. See Corn v. State, 240 Ga. 130, 132, 240 S.E.2d 694 (1977); Potts v. State, 241 Ga. 67, 69, 243 S.E.2d 510 (1978).

The state used only seven of its peremptory challenges. Under Georgia law it had three remaining. Code Ann. § 59-907. This court explored the issue of unexercised peremptory strikes and its impact on Witherspoon in Alderman v. State, 241 Ga. 496, 499, 246 S.E.2d 642, cert. den., --- U.S. ---, 99 S.Ct. 593, 58 L.Ed.2d --- (1978), and concluded (p. 502, 246 S.E.2d p. 647), "(w)hen the twelfth juror in this case was selected, the state had three peremptory challenges remaining and, therefore, the exclusion of the three complained of jurors for cause, if error at all, was harmless. See Chapman v. California, 386 U.S. 18, 87 S.Ct. 824, 17 L.Ed.2d 705) (1967). The presence of unused peremptory strikes by the state forecloses appellant's reliance on Witherspoon.''

Accordingly, the excuse of juror Martha C. Turner, if error at all, was harmless.

Enumeration 3 is without merit.

4. The appellant alleges in Enumeration 4 that "(t)he Court erred in failing to disqualify Traverse Juror, Pat Darden, who was the Coroner of Taliaferro County (and husband of the Clerk of Superior Court of Taliaferro County), and subpoenaed as a witness for the State, and the Court should have required that he be stricken from the panel of 42." In his fifth enumeration he alleges "(t)he court erred in failing to disqualify Grace Beazley, who was the wife of Bailiff Guy Beazley, and an employee of Taliaferro County Health Department."

In Georgia, control of the voir dire examination is vested in the discretion of the trial judge and will not be interfered with unless it is clearly shown that such discretion was abused. Pierce v. State, 231 Ga. 731, 204 S.E.2d 159 (1974).

The statutory questions to be asked on voir dire on trial for felony are set forth in Code Ann. § 59-806. " 'To disqualify one from being a juror in a criminal case, he must have formed and expressed an opinion, either from having seen the crime committed, or from having heard the testimony under oath. One who from some other sources has formed and expressed an opinion which is not fixed and determined, and who indicated his competency by answering the statutory questions on voir dire, is not an incompetent juror.' " Wilburn v. State, 141 Ga. 510, 511, 81 S.E. 444 (1963); Clemon v. State, 218 Ga. 755, 757, 130 S.E.2d 745 (1963).

Neither Mr. Darden nor Mrs. Beazleyhad witnessed the crime or heard testimony about the crime delivered on oath, and there was no abuse of discretion in refusing to exclude them for cause. Butler v. State, 231 Ga. 276, 201 S.E.2d 448 (1973); Williams v. State, 222 Ga. 208, 149 S.E.2d 449 (1966); Roach v. State, 221 Ga. 783, 784, 147 S.E.2d 299 (1966).

Inasmuch as the appellant used only 17 of his 20 peremptory challenges we find no merit to his argument that he was required to use peremptory strikes to remove these prospective jurors.

Enumerations 4 and 5 are without merit.

5. In Enumeration 6, the appellant alleges "(t)he Court erred in allowing admission of a sawed-off shotgun taken from the automobile of Jose High in Augusta, Georgia, on August 28, 1976, 32 days after the alleged murder in Taliaferro County, on the statement of the District Attorney, '(t)here will be some evidence in the record.' "

The victim testified that a shotgun was used during the commission of the offense and that the shotgun shown to him at the trial looked like the shotgun which had been pointed at him during the commission of the crime. Other evidence established that a shotgun had been discharged at the scene of the murder and aggravated assault.

"Where, as here, the victim of a crime identifies a weapon as similar to that used in the commission of the crime, the weapon is admissible whether or not it is the identical weapon. Evans v. State, 228 Ga. 867, 870, 188 S.E.2d 861 (1972). See, also Jung v. State, 237 Ga. 73, 226 S.E.2d 599 (1976)." Duvall v. State, 238 Ga. 325, 326, 232 S.E.2d 918, 919 (1977).

Enumeration 6 is without merit.

6. In Enumeration 7, the appellant alleges "(t)he Court erred in expressing the opinion of the Court in the statement, '(o)f course, it would be properly connected up, Mr. Hardin,' when appellant objected to nonexistent evidence arising out of a question asked by the District Attorney as to the whereabouts of a tee shirt found at the scene of the murder."

It will facilitate understanding the obvious intent of the statement to consider the context in which it arose from page 178 of the transcript of the trial.

"Q. All right. Is there any other evidence that was turned over to you that you may have turned over to somebody else? A. Well, there were some acid wipings identified as coming from the hands of Henry Phillips and an evidence bag containing a bloody tee shirt identified as being found at the scene. Q. And that tee shirt, I assume, was examined for human blood? A. I didn't examine it. Q. Who did you turn it over to? Mr. Hardin: At this point, if your Honor please, I don't believe there is any evidence that has been turned over to anyone, so I believe...