Strickland v. State

• Decision Date: 10 February 1981
• Docket Number: No. 36791,36791
• Citation: 275 S.E.2d 29,247 Ga. 219
• Parties: STRICKLAND v. The STATE.
• Court: Georgia Supreme Court

Page 29

275 S.E.2d 29

247 Ga. 219

STRICKLAND v. The STATE.

No. 36791.

Supreme Court of Georgia.

Feb. 10, 1981.

[247 Ga. 233] John N. Crudup, Gainesville, for Robert William Strickland.

Jeff Wayne, Dist. Atty., Gainesville, Arthur K. Bolton, Atty. Gen., for the State.

UNDERCOFLER, Justice.

Robert William Strickland was convicted by a jury of the murders of Eddie Lee Carroll, Lester Lee Carroll and Bonnie Mae Carroll, and for aggravated assaults upon Junie Irene Carroll, Elizabeth June Carroll and Cecil Carroll. The death sentence was imposed for each of the three murders. Consecutive ten year sentences were imposed for the three aggravated assaults. His case is before this court on appeal, and for mandatory review of the sentences of death. ¹

1. Strickland's psychiatric evaluation ordered by the trial court ² was not a "critical stage" of the proceedings; hence, no error was committed by denying his counsel's request to be present during the evaluation. United States v. Cohen, 530 F.2d 43(9) (5th Cir. 1976). The first enumeration of error lacks merit.

2. The trial court correctly submitted the issue of Strickland's mental competency to stand trial to a special jury rather than summarily declaring Strickland incompetent. Code Ann. § 27-1502(a). Strickland contends in support of his second and third enumerations of error that the report of the Forensic Service Team unequivocally declared him incompetent to stand trial. However, the report shows that Strickland could understand the charges against him and appreciate the consequences, as well as communicate with his attorney. ³ The report merely expresses concern with Strickland's ability to deal emotionally with the testimony against him. The second and third enumerations of error are without merit.

3. The trial court did not err by refusing to direct a verdict for Strickland on the special plea of insanity or in thereafter ordering Strickland to stand trial on the indictments. Members of the Forensic Service Team testified that they were concerned with whether or not Strickland would be able to control his emotions during trial on the indictments; whether he might commit suicide. Dr. Ermutlu also testified, "I felt that he was aware of the charge, and he was aware of the consequences, and I also felt that he probably could communicate with his lawyer, if some relationship was established." Strickland contends that elsewhere in the transcript of proceedings Dr. Ermutlu contradicted himself, particularly in respect to the question of whether or not Strickland would be able to establish a sufficient relationship with defense counsel to be able to assist in his defense. The State introduced lay testimony indicating that Strickland was feigning incompetency. There is no merit in Strickland's contentions that, in essence, the court or the jury was bound to accept the testimony favorable to his position and was bound to reject the testimony indicating his competency to stand trial. "Not only the presumption of sanity, Johnson v. State, 235 Ga. 486, 220 S.E.2d 448 (1975), but also the State's evidence, including the testimony of the psychiatrist, created an issue of fact on ... (Strickland's) competency for the jury to decide." Leggett v. State, 244 Ga. 226, 227(3), 259 S.E.2d 476 (1979). There is no merit in the fourth, fifth and forty-second enumerations of error.

4. Strickland contends in his sixth enumeration of error that the trial court should not have required him to plead to the indictment before his mental competency was determined under his special plea. The record fails to provide a factual basis for this enumeration of error. While represented by counsel, he pled to the indictment on January 18, 1980. His special plea was not filed until January 21, 1980, three days later. The sixth enumeration of error presents nothing for our consideration.

5. His seventh enumeration of error also is not supported by the transcript of proceedings, which shows without contradiction that that grand jury foreman, whose name appears on the State's list of witnesses, took no part whatsoever in the grand jury's deliberations regarding the indictments returned against Strickland.

6. The eighth enumeration of error, contending that the trial court erred in overruling Strickland's objections to the 7. Strickland contends in his ninth enumeration of error that the trial court improperly refused to allow him to ask his proposed voir dire questions numbers eleven, twenty-one, twenty-four and twenty-five to prospective special jurors. The transcript establishes that the trial court allowed his eleventh question to be asked. Questions twenty-one, twenty-four and twenty-five were technical legal questions relating to whether or not the jurors knew the nature and purpose of the trial on the special plea. Answers to the questions would not reveal prejudice against the accused. The nature and purpose of the proceedings were explained to the jury in the court's charge. No manifest abuse of the trial court's discretion has been illustrated. Kyles v. State, 243 Ga. 490, 255 S.E.2d 10 (1979); Welch v. State, 237 Ga. 665, 671, 229 S.E.2d 390 (1976); McNeal v. State, 228 Ga. 633, 636, 187 S.E.2d 271 (1972).

                State's proposed voir dire questions numbers two and three, also finds no factual support in the transcript.  4  The trial court did not rule on the objections when made.  Ruling was deferred until the next day to give counsel an opportunity to rewrite their questions.  When the court inquired the next day whether the State's questions numbers one, two and three would be asked, defense counsel replied, "That's right."  The State thereafter expressly withdrew question number two.  The eighth enumeration of error presents nothing for our review
                

8. Strickland contends in his tenth enumeration of error that the trial court should have excused prospective special jurors for cause. These persons are not named in the enumeration of errors or brief, but the page references to the transcript relate to the examination of Mr. Clarence A. Johnson and Mr. Earley Roberts, Jr. Mr. Johnson was excused for cause. Mr. Roberts responded that he could lay aside anything he might have heard, read or known about the case and base his verdict solely upon the evidence and the charge of the court. No error has been illustrated. Westbrook v. State, 242 Ga. 151, 154(3), 249 S.E.2d 524 (1978).

9. The eleventh enumeration of error is unsupported by the transcript. Strickland apparently contends that the trial court required defense counsel to use the word "opinion" instead of the word "inclination" while examining prospective special jurors on voir dire. One or more jurors had expressed a lack of understanding of the meaning of the word "inclination." The court suggested the substitution of words. Defense counsel was permitted, however, to continue using the word "inclination" during examination of the remaining prospective special jurors. The eleventh enumeration of error is without merit.

10. The trial court did not err by failing on its own motion to order transcription of the opening statements of counsel on trial of the special plea. Trial of the special plea was civil in nature. Williams v. State, 238 Ga. 298, 303(3), 232 S.E.2d 535 (1977).

Neither did the trial court err by refusing to allow defense counsel to explain during his opening statement and closing argument the consequences under Code Ann. § 27-1502 of a jury finding in favor of the special plea. See Coker v. State, 234 Ga. 555(5), 215 S.E.2d 782 (1975). The twelfth and thirteenth enumerations of error are without merit.

11. The issue on the special plea was Strickland's mental capability and comprehension at the time of trial. Crawford v. State, 240 Ga. 321, 326, 240 S.E.2d 824 (1977). Accordingly, the trial court did not err in excluding on the State's relevancy objection testimony of one of the medical experts relating to whether or not treatment would enable Strickland to stand trial at some future date. Code Ann. § 38-201. The fourteenth enumeration of error lacks merit.

12. Admitting the testimony of the ambulance dispatcher about a telephone 13. The trial court's comments and instructions to the jury were proper following Strickland's violent outburst in the courtroom during trial of his special plea of incompetency to stand trial. After Strickland's objection to the court's remarks, defense counsel was given an opportunity to submit a curative instruction to be given by the court. Counsel declined to prepare a specific curative instruction. Instead, he merely requested the court to give a general instruction to the effect that the court had not intended to express any opinion about Strickland's disruptive behavior. The court so charged the jury, and the defense expressed no objection to the charge. The charge was more than adequate to have cured any error if, indeed, there had been error. The sixteenth and seventeenth enumerations of error are without merit.

call he received was not error. The dispatcher testified that the caller asked for an ambulance to be dispatched to a certain location on Whitmire Circle because there were five to seven people lying up there dead. The caller said he was the killer and that he was calling from a pay telephone because he had shot out the telephone at the house. He said he had been under medical treatment, was insane, and would turn himself in to the police. Witnesses testified that the location of the crime scene was as described by the caller and that the Carroll house telephone had been shot out. The arresting officer testified that Strickland expressed surprise at his arrest because he previously had indicated that he planned to turn himself in. These circumstances suffice for admissibility of the dispatcher's testimony. Constantino v. State, 243 Ga. 595, 255 S.E.2d 710 (1979); Stanger v. State, 102 Ga.App. 561, 116 S.E.2d 898 (1960). The fifteenth enumeration of error is...