Stewart v. State
Decision Date | 02 February 1983 |
Docket Number | No. 64905,64905 |
Parties | STEWART v. The STATE. |
Court | Georgia Court of Appeals |
Kenneth C. Fuller, Rome, for appellant.
Larry Salmon, Dist. Atty., Rome, Robert D. Engelhart, Asst. Dist. Atty., for appellee.
Shirley Stewart brings this appeal from her conviction of voluntary manslaughter. Held:
1. Appellant's first enumeration challenges the trial court's determination that a taped statement she had given to the police was voluntary and in compliance with Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966). During the hearing held to determine the statement's voluntariness, appellant testified that her rights under Miranda were read to her, that she understood those rights, and that she signed a waiver thereof. She also testified that she was in no manner threatened by the police. The record also discloses that appellant had just been released from the hospital prior to having given her statement, that she was in a weakened condition, and that she had been given a medication for pain just prior to her release. However, the police officer who took appellant's statement testified that she was "up to par" as far as he could determine.
The state was required to show that appellant's statement was voluntary by a preponderance of the evidence considering the totality of the circumstances. Pierce v. State, 235 Ga. 237(3), 219 S.E.2d 158 (1975), and cits. We must accept factual determinations by the trial court as to voluntariness unless those findings are clearly erroneous. Rosser v. State, 157 Ga.App. 161(1), 276 S.E.2d 672 (1981). Under the facts and circumstances in this case, the state clearly met its burden of proof, and the trial court's determination that appellant's statement was voluntary is not clearly erroneous. See Pittman v. State, 245 Ga. 453(1), 265 S.E.2d 592 (1980); Fields v. State, 232 Ga. 723(4), 208 S.E.2d 822 (1974); Hood v. State, 157 Ga.App. 282(3), 277 S.E.2d 261 (1981).
2. Appellant's second enumeration asserts as error the trial court's "allowing communications with the trial jury after it began its deliberations without the knowledge, consent or presence of appellant or her counsel." The basis of this enumeration is a certain instruction allegedly given by trial judge to the jury via the bailiff after the jury had begun its deliberations. This issue was raised for the first time by appellant on her motion for new trial, counsel for appellant explaining at the hearing that he had not been able to determine the nature of the allegedly improper communication until after the completion of the trial. The trial court denied the motion for new trial.
The state argues that the issue enumerated here is not supported by the trial record and, thus, presents nothing for decision on appeal. However, in support of this enumeration appellant presented the testimony of two witnesses at the hearing on her motion for new trial. See generally Register v. State, 12 Ga.App. 1, 6, 76 S.E. 649 (1912), which sets forth the common law rule that a new trial may be granted on the basis of matters dehors the record. See also Code Ann. § 70-208 (now OCGA § 5-5-25). A transcript of this hearing has been made a part of the record in this case on appeal. See Code Ann. § 6-702(a) (now OCGA § 5-6-36(a)). Thus, the issue raised by this enumeration of error is properly before this court for consideration on the merits.
The record of the hearing on motion for new trial discloses that the trial judge had made several inquiries of the jury during its deliberations as to whether the jurors wanted to go to supper or how they stood. The two witnesses called by appellant, the bailiffs at trial, could not remember what, if anything, they had communicated to the jury during its deliberations. However, appellant's attorney stated in his place that one of the bailiffs told him after the trial that the jury foreman had requested the bailiff to seek direction from the judge because they were deadlocked and were not making any progress. This message was delivered to the judge, who directed the bailiff to return and tell the jury to deliberate further, to "keep on trying." It is this instruction which appellant contends violated her constitutional right to be present during her entire trial.
Appellant relies on two cases in support of this enumeration: Rogers v. United States, 422 U.S. 35, 95 S.Ct. 2091, 45 L.Ed.2d 1 (1975), and Tillman v. United States, 406 F.2d 930 (5th Cir.1969). However, we need not resort to federal cases for assistance in resolving this issue. "The rule is well established in this State, that the defendant on trial must be present when the court takes any action materially affecting his case." Andrews v. State, 196 Ga. 84, 94, 26 S.E.2d 263 (1943); see Wanzer v. State, 232 Ga. 523, 526, 207 S.E.2d 466 (1974). Miller v. State, 13 Ga.App. 440, 442-3, 79 S.E. 232 (1913); see Wilson v. State, 212 Ga. 73, 90 S.E.2d 557 (1955); see also Pierce v. State, 47 Ga.App. 830, 171 S.E. 731 (1933). Miller v. State, supra 13 Ga.App. at 444, 79 S.E. 232.
Applying the foregoing precepts to the case at hand, we conclude that the communication complained of was not so material to appellant's case as to require her presence and that of her counsel. The communication here clearly did not constitute a charge or recharge. See Leverette v. State, 104 Ga.App. 743(1), 122 S.E.2d 745 (1961); Miller v. State, supra. "The purpose of a charge is to inform the jury as to the law to be applied to the facts in the case." Thacker v....
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...counsel, to matters relating to the comfort and convenience of the jury." (Citation and punctuation omitted.) Stewart v. State, 165 Ga.App. 428, 430(2), 300 S.E.2d 331 (1983) (trial court's message to jurors through bailiff that they should "keep on trying" after they reported being deadloc......
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Hollis v. State, A89A0029
...warrant such action by a reviewing court, it must be manifest that the error was prejudicial in character." (Cit.)' Stewart v. State, [165 Ga.App. 428, 430(2) (300 SE2d 331) ]." Recoba v. State, 179 Ga.App. 31, 32(3), 33, 345 S.E.2d 81, Under the circumstances of the case sub judice, we fin......
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Recoba v. State
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