Thomas v. State

• Decision Date: 27 September 1977
• Docket Number: No. 32537,32537
• Citation: 238 S.E.2d 888,239 Ga. 734
• Parties: Larry THOMAS v. The STATE.
• Court: Georgia Supreme Court

Page 888

238 S.E.2d 888

239 Ga. 734

Larry THOMAS v. The STATE.

No. 32537.

Supreme Court of Georgia.

Sept. 27, 1977.

E. Kontz Bennett, Jr., J. Greg Wolinski, Waycross, for appellant.

Dewey Hayes, Dist. Atty., M. C. Pritchard, Asst. Dist. Atty., Waycross, Arthur K. Bolton, Atty. Gen., Isaac Byrd, Asst. Atty. Gen., Atlanta, for appellee.

MARSHALL, Justice.

Larry Thomas was tried and found guilty of murder by the Superior Court of Ware County. For that offense he was sentenced to life in prison.

Evidence concerning the particular events of April 27, 1975, is in conflict, but the major facts are not in dispute. The appellant testified that on the night in question, he fired three shots. Only the third, by his testimony, was directed at the decedent, and the appellant was aware that the decedent had been struck by that third bullet. After the shooting, the appellant fled to Lake City, Florida. From Florida he moved to Houston, Texas, where he was apprehended. He was returned to Waycross and placed in the Ware County jail, from which he escaped once prior to trial.

1. The appellant enumerates as error his indictment by an unconstitutionally composed grand jury. This challenge to the array of the grand jury was not made before indictment or before trial, and is raised for the first time on this appeal.

Generally, a challenge to the grand jury composition must arise prior to indictment. An exception exists when the defendant is without knowledge of the illegal composition at the time of his indictment. Barrow v. State, 239 Ga. 162(1), 236 S.E.2d 257 (1977); Sanders v. State, 235 Ga. 425, 219 S.E.2d 768 (1975); Estes v. State, 232 Ga. 703, 208 S.E.2d 806 (1974).

That exception does not permit the indefinite postponement of a grand-jury challenge, however. In the case at bar, the appellant was not provided with counsel until after indictment. Although that may excuse the failure to challenge the grand jury array prior to indictment, it does not excuse the failure to challenge the array until appeal. Georgia law requires that objection to the composition of the grand jury be made at the earliest practical opportunity. Cobb v. State, 218 Ga. 10, 126 S.E.2d 231 (1962); McFarlin v. State, 121 Ga. 329, 49 S.E. 267 (1904). Appeal is not the earliest opportunity.

2. The appellant enumerates as error the denial of his motion for a directed verdict. The review of such a denial is limited to the legal sufficiency of the evidence, and a new trial will not be granted if the evidence is sufficient under any reasonable view to support the verdict. Mays v. State, 237 Ga. 907, 230 S.E.2d 282 (1976); Powell v. State, 235 Ga. 208, 219 S.E.2d 109 (1975).

The appellant complains that the evidence is insufficient to support the verdict, because the state failed to refute the appellant's contention that he acted in self-defense. The conclusion that a party acted in self-defense is one the jury is permitted, but not required, to draw from the evidence, however. The uncontroverted fact that the appellant shot the decedent is sufficient to warrant the verdict, absent evidence that demands a finding of circumstances of alleviation, or excuse or justification. Flury v. State, 237 Ga. 273, 227 S.E.2d 325 (1976); Procter v. State, 235 Ga. 720, 221 S.E.2d 556 (1975). The evidence as to the defense of self-defense was conflicting and equivocal, hence failed to demand a verdict of acquittal.

3. The appellant enumerates as error the district attorney's impeachment of his own witnesses. On two occasions during the course of trial, the district attorney claimed surprise during his direct examination of witnesses. The first of these concerned a statement in court that the appellant had been seen with a gun in his hand; the second concerned a statement in court that the decedent had been bearing a knife when he was shot. After both statements, the jury was excused and the district attorney was permitted to cross examine the witnesses. A police officer was also permitted to testify that the witness' statement that decedent was carrying a knife contradicted an earlier statement the witness had made.

Georgia law recognizes the right to impeach one's own witness when "he can show the court that he has been entrapped by said witness by a previous contradictory statement." Code § 38-1801. Recent decisions have broadly construed the right to impeach one's own witness under this section. Ellenburg v. State, 239 Ga. 309(1), 236 S.E.2d 650 (1977); Wilson v. State, 235 Ga. 470, 219 S.E.2d 756 (1975). A statement by the district attorney that he has been surprised by the testimony is sufficient, in the absence of a showing to the contrary, to show entrapment. Seay v. State, 108 Ga.App. 724, 134 S.E.2d 422 (1963). The trial court was justified in permitting the cross examination and impeachment.

4. The appellant enumerates as error the testimony of a police officer made as an expert witness. Qualification as an expert witness is a matter within the discretion of the trial court. McCoy v. State, 237 Ga. 118, 227 S.E.2d 18 (1976); Barrow v. State, 235 Ga. 635, 221 S.E.2d 416 (1975). The appellant has failed to demonstrate an abuse of discretion in this instance.

5. The appellant enumerates as error the improper admission of evidence of his character. We find no merit in this contention.

The defendant's version of the shooting incident was that the victim (his neighbor) had approached him in a drunken state with an open knife, threatening the defendant's life; and that the defendant had fired two warning shots, which were ineffective in stopping the victim, then killed the victim in self-defense by firing the third bullet into his chest. The prosecution introduced, over objection, evidence that, two days prior to the shooting in question, the defendant had fired shots at or near a group of children ranging in age from 11/2 to 6 years on his property.

The evidentiary rule incorporated in Code § 38-202 is to the effect that, on a prosecution for a particular crime, proof of a distinct, independent, and separate offense, even though it be a crime of the same sort, is never admissible unless there is some logical connection between the two, from which it can be said that proof of the one tends to establish the other. The salutary purpose of the rule was recognized in the leading case of Bacon v. State, 209 Ga. 261 262, 71 S.E.2d 615, 616, as "to protect the individual who is charged with crime, and to insure him of a fair and impartial trial before an unbiased jury."

"This is the general rule, but there are some (now many) exceptions to it; as when the extraneous crime forms part of the res gestae; or is one of a system of mutually dependent crimes; or is evidence of guilty knowledge; or may bear upon the question of the identity of the accused, or articles connected with the offense; or is evidence of prior attempts by the accused to commit the same crime upon the victim of the offense for which he stands charged; or...