Shaw v. State

• Court: Georgia Supreme Court
• Writing for the Court: HALL
• Citation: Shaw v. State, 241 Ga. 308, 245 S.E.2d 262 (Ga. 1978)
• Decision Date: 16 May 1978
• Docket Number: No. 33343,33343
• Parties: SHAW v. The STATE.

Page 262

245 S.E.2d 262

241 Ga. 308

SHAW v. The STATE.

No. 33343.

Supreme Court of Georgia.

Argued March 14, 1978.

Decided April 18, 1978.

Rehearing Denied May 16, 1978.

O'Neal, Stone & Brown, H. T. O'Neal, Jr., Manley F. Brown, Macon, for appellant.

W. Donald Thompson, Dist. Atty., Willis B. Sparks, Asst. Dist. Atty., George D. Lawrence, Eatonton, for appellee.

HALL, Justice.

Disputes between various members of the Shaw family and Danny Ray ended in Ray's death at the hands of John Shaw, appellant. Ray was shot in the back with a deer rifle while he was sitting in his pickup truck on the allegedly private road on the Shaws' farm.

The state contended that Ray was deliberately murdered because of the prior disputes, which involved terroristic threats against and assaults on members of the Shaw family, and repeated trespasses on their property. Having caught Ray trespassing again on Shaw property, John Shaw shot him without justification.

Appellant attempted to show justification based on defense of Grady Shaw (his brother) from a deadly assault. The three Shaw men (John, Grady, and their father Leon) were returning from working in the fields in the early evening, after harvesting corn. They were armed to hunt deer because one had been seen in the fields. While driving up their private road, John Shaw (in front on the combine) saw a pickup truck approaching and pulled off the road to allow it to pass. He got down to see who was in the truck, and was nearly run down by Danny Ray, the driver. The pickup drove down the road and stopped next to Grady Shaw's truck. John Shaw ran back to his father's truck and got a rifle. Appellant testified that he saw a gun in Ray's hand, and immediately shot Ray to protect his brother. Grady Shaw also shot at the truck as it left the scene, but did not hit the driver. The truck crashed a short distance from the farm, and Ray was found dead by the ambulance attendants called by appellant. No gun was found in Ray's truck.

Appellant was convicted of murder.

1. Appellant complains that an accusation against Danny Ray for obstructing a police officer, and his guilty plea and probated sentence for that offense were excluded from evidence on objection by the state that they were irrelevant. This conviction arose out of an incident in which two deputy sheriffs were called to the Shaw farm to protect the Shaws from Ray's terroristic threats to kill members of the Shaw family. Ray attempted to escape from the deputies, and in doing so assaulted one of them.

This evidence was offered to show Ray's state of mind, i. e., his hostility to the Shaws, whom he blamed for the conviction. The defense contended that Ray's state of mind was relevant to the issues of justification and provocation. The evidence was also offered to show Ray's violent character. Used for the latter purpose the evidence was clearly not admissible. Black v. State, 230 Ga. 614, 615, 198 S.E.2d 314 (1977).

However, evidence of Ray's conviction should have been admitted to show his state of mind towards the Shaws. See Monroe v. State, 5 Ga. 85, 138 (1848). The fact that Ray's actions on the Shaw farm resulted not only in his arrest, but also in his conviction, was relevant to show the depth of his hostility towards the Shaws. The Shaws were aware of this hostility, and were entitled to prove it to support the defenses of justification and provocation.

Nevertheless, we find the error harmless. There was ample evidence in the case of Ray's hostility towards the Shaws. Members of the Shaw family testified as to Ray's terroristic threats against them, and as to assaults on them. The incident resulting in the conviction was related in detail. A warrant for the arrest of Ray made out by Grady Shaw was also in evidence. In light of this evidence concerning Ray's hostility towards the Shaws, the evidence of his conviction was not important to the defense. We find that it is highly probable that the exclusion of this evidence did not contribute to appellant's conviction. Johnson v. State, 238 Ga. 59, 61, 230 S.E.2d 869 (1976).

2. The testimony of Malcolm Giles concerning a threat against Ray by appellant was admitted over the objection it was "irrelevant hearsay." The more specific objection made on appeal was not made at the time the objectionable question was asked, so far as the transcript shows. We cannot know what transpired during the unrecorded bench conference, and under the circumstances shown in the record we conclude that the objection was not specific enough to preserve the point for review by this court. Cf. Columbian Peanut Co. v. Pope, 69 Ga.App. 26, 29-30, 24 S.E.2d 710 (1943). Compare Crowder v. State, 237 Ga. 141, 227 S.E.2d 230 (1976). Had the objection been made with adequate specificity, at least part of the testimony could have been given in admissible form by deleting the quotation of the threat allegedly made against the deceased, since the evidence was relevant to Ray's state of mind.

3. It was improper for the special prosecutor to imply during cross examination, in the presence of the jury, that the men in the Shaw family reacted strongly to individuals using their road, and intimidated such trespassers ¹ into avoiding the use of that road. The special prosecutor was attempting to use the actions of Leon and Grady Shaw to prove John Shaw's motive for murder.

However, the special prosecutor dropped this line of questioning after objection, and Grady Shaw denied the allegations. The improper questions asked in the presence of the jury were not so inflammatory as to result in reversible error.

4. An objection to a later question asked of Grady Shaw was cured when the special prosecutor withdrew the question. If counsel felt that further action was required, he should have requested a curative instruction or a rebuke to counsel. Contrary to appellant's assertion, the question objected to was not repeated.

5. The exclusion from evidence of testimony about a self-serving declaration of John Shaw shortly before he was arrested was not error, even though testimony about a statement made minutes earlier was elicited by the state. The trial court determined that the two statements were unrelated to each other, despite their proximity in time. This determination is supported by the difference in subject matter of the statements. The latter statement did not tend to qualify or explain the earlier statement. Brown v. State, 119 Ga. 572, 575, 46 S.E. 833 (1903); Dickey v. State, 240 Ga. 634, 641-642, 242 S.E.2d 55 (1978).

6. Any error in limiting appellant's cross examination of a witness concerning statements made by appellant to the police after arrest was cured when appellant was later given a full opportunity to cross examine the witness about the same statements.

7. Certain testimony of a police officer allegedly gave the jury the impression that the Shaw family refused to cooperate in the investigation of the murder, and was objected to. This supposedly gave the impression that John Shaw was uncooperative, and negated the defense strategy of emphasizing appellant's cooperation with the police. This evidence was admissible under Code § 38-302 to explain the officer's conduct during the investigation. See McLaughlin v. State, 236 Ga. 577, 224 S.E.2d 412 (1976). While the trial judge had discretion to exclude the evidence if he felt that its prejudicial impact substantially outweighed its probative value, we cannot say he abused his discretion. Compare Candler v. Byfield, 160 Ga. 732, 129 S.E. 57 (1925), with Edwards v. State, 213 Ga. 552, 555, 100 S.E.2d 172 (1957), and Avery v. State, 209 Ga. 116, 70 S.E.2d 716 (1952).

8. Any error in a portion of the closing argument by the special prosecutor, in which he referred to the actions of the grand jury, was cured by a prompt curative instruction by the judge.

9. Appellant contends that the cumulative effect of improper prosecution tactics was to deny him a fair trial by placing the character of the entire Shaw family in issue. Some of the prejudicial incidents were objected to, and the impropriety cured. In other instances appellant failed to object, or to move for a curative instruction or a rebuke to counsel. No motion for a mistrial was made.

However, if the cumulative effect of improper prosecution tactics was to deny appellant a fair trial, the conviction cannot stand. Code § 2-101. The actions which were arguably improper were limited in number and in their potential for prejudicial impact. We...