Trask v. State

• Decision Date: 06 September 1974
• Docket Number: No. 2,No. 49464,49464,2
• Citation: 208 S.E.2d 591,132 Ga.App. 645
• Parties: Steven W. TRASK v. The STATE
• Court: Georgia Court of Appeals

Page 591

208 S.E.2d 591

132 Ga.App. 645

Steven W. TRASK v. The STATE.

No. 49464.

Court of Appeals of Georgia, Division No. 2.

Sept. 6, 1974.

Rehearing Denied Sept. 24, 1974.

William O. Carter, Hartwell, Ray B. Burruss, Jr., Royston, for appellant.

Clete D. Johnson, Dist. Atty., Royston, for appellee.

Syllabus Opinion by the Court

STOLZ, Judge.

The defendant appeals from his conviction of voluntary manslaughter and sentence of 20 years' imprisonment.

1. The trial judge did not err in charging the jury panel, prior to the selection of the jury, that 'Every effort should be made consistent with your oaths and consciences as jurors to reach a unanimous verdict in every case you sit on.' A charge, if given on this subject, should not overly stress the necessity for either unanimity (Shanon v. State, 15 Ga.App. 346(1), 83 S.E. 156) or unyielding, individual conviction by each juror (Fogarty v. State, 80 Ga. 450, 454, 5 S.E. 782). See also 137 A.L.R. 394. The trial judge made it clear here, both by the qualifying phrase 'consistent with your oaths and consciences as jurors' and by the remainder of his charge on this subject, out of the context of which this excerpt was taken, that unanimity was not to be achieved at the expense of violating each individual juror's deliberate conscientious convictions as to what his verdict should be. 'The jurors are supposed to be intelligent, conscientious men. Each takes the oath prescribed by law 'that he will give a true verdict according to the evidence,' and he is presumed to understand the nature and effect of his obligation. Whether he can conscientiously yield his judgment to that of his fellow-jurors is a question he must decide for himself.' Fogarty, supra, p. 454(3), 5 S.E. p. 785. Enumerations of error 1, 15, 23 and 24 are without merit.

2. The admission in evidence, over objection, of a letter written by the decedent to his father, indicating that he may have had $2,500 in his possession, was at most harmless error. The jury evidently did not believe that robbery was the defendant's motive, since it found him guilty of voluntary manslaughter, rather than murder, as charged. There is no enumerated error as to the excessiveness of the sentence. Enumerated error 2 is without merit.

3. It was not error, as contended in enumerated error 3, to permit expert witness Dr. Dawson to testify early due to a previous commitment, where the existence of the decedent's dead body, necessary to establish the corpus delicti, had already been established by the previous testimony of the decedent's father, which was corroborated by witnesses testifying subsequent to Dr. Dawson.

4. In enumerated errors 4, 5 and 6, the defendant complains of the admission in evidence of 10 photographs of the decedent's body. 'It is well settled that photographs which do have probative value in establishing the cause of death, although gruesome and only corroborative or cumulative of other evidence, are entitled to admission.' Teal v. State, 122 Ga.App. 532(1), 177 S.E.2d 840 and cits. And this is true even though the defendant had stipulated everything the photographs would show. Johnson v. State, 226 Ga. 511(2) 175 S.E.2d 840. The photographs were relevant to show the location, number (15) and severity of the stab wounds where there was testimony that the victim could have died of such wounds and where the defendant contended that death was by drowning rather than by stabbing, as the indictment charged. See Franklin v. State, 69 Ga. 36(1); Andrews v. State, 222 Ga. 689(2), 152 S.E.2d 388 and cits.; cf. Holcomb v. State, 130 Ga.App. 154, 155(2) 202 S.E.2d 529, where the cause of death was not in dispute. The fact that the photographs were made several days after the homicide and that the body was therefore partially decomposed, does not of itself make them inadmissible. Weaver v. State, 199 Ga. 267(3), 34 S.E.2d 163. The evidence showed that the defendant had weighted the body and dropped it into the lake, where it was not discovered for several days. Nor is it reversible error to admit in evidence more than one photograph tending to prove a fact. Cagle Poultry & Egg Co. v. Busick, 110 Ga.App. 551(1c), 139 S.E.2d 461. Although the photograph of the body after mutilation by autopsy, did not have direct probative value in establishing the cause of death, it did corroborate the testimony that an autopsy was performed, which was instrumental in ascertaining the cause of death. There was no representation by the state that the photograph depicted a condition directly caused by the defendant. Therefore, these enumerated errors are without merit.

5. Enumerated errors 7 and 8 complain of the admission in evidence, over objections, of testimony of the state's witness, DOI agent Stone, that, in his opinion, the truth had been discovered in this case (enumeration 7) and that he had not found any evidence that would tend to acquit the accused in this murder case (enumeration 8). Both answers constituted expressions of opinions as to ultimate facts in issue within the province of the jury. As the trial judge ruled, however, both answers were elicited by the defense counsel's cross examination of the witness with regard to the witness' duty, as a law enforcement officer, to seek for all evidence leading to the discovery of the truth, whether it tends to acquit or convict the suspect. Moreover, the judge instructed the jury in the first instance to the effect that they were to determine the truth in the case, after which counsel did not request further relief, such as instructions or mistrial. See Seaboard C.L.R. Co. v. Wallace, 227 Ga. 363, 180 S.E.2d 743. These enumerated errors are without merit.

6. The trial judge did not err, as contended in enumerated error 9, in overruling the defendant's motion for mistrial after the prosecution asked witness Stone whether the defendant had indicated or told Stone how he (the defendant) wanted to plead, where the judge sustained the objection to the question, did not allow it to be answered, and instructed the jury to disregard it.

7. To make a confession admissible, it must have been made voluntarily, without being induced by another, by the slightest hope of benefit or remotest fear of injury. Code § 38-411. The confession was made after the accused was advised of and waived his 'Miranda' rights. It was not demonstrated that investigator Stone gave the accused, Trask, any 'hope of benefit,' or that Trask himself felt induced to make a confession. Stone did not inform the accused that 'it would be better' for Trask to make no mention of drugs in his statement, but only that 'I was not going to put it (i.e. the mention of drugs) in the statement.' See Minton v. State,99 Ga. 254(2), 25 S.E. 626; McLemore v. State, 181 Ga. 462, 470, 182 S.E. 618. Neither did fear of injury motivate the accused to make a confession. Though physical intimidation is alleged in the brief, there was no testimony from the defendant at the trial to demonstrate that his confession was induced by threats or acts of violence against his person.

The sworn testimony adduced by the defendant on direct examination varies little from that presented by the confession. See Watson v. State, Ga.App. (1), 207 S.E.2d 685 and cit. Ultimately, whether the confession was freely and voluntarily made was a question for the jury (Brown v. State, 203 Ga. 218, 46 S.E.2d 160), and it was not error, as contended in Enumeration 10, to admit the confession in evidence.

8. The trial judge did not err in overruling the defendant's motion for directed verdict of acquittal, as contended in Enumeration 11. There was medical testimony to the effect that the primary cause of death was...