Tucker v. State, 31398

• Decision Date: 05 October 1976
• Docket Number: No. 31398,31398
• Citation: 229 S.E.2d 749,237 Ga. 740
• Parties: Anita Jean TUCKER v. The STATE.
• Court: Georgia Supreme Court

Page 749

229 S.E.2d 749

237 Ga. 740

Anita Jean TUCKER v. The STATE.

No. 31398.

Supreme Court of Georgia.

Oct. 5, 1976.

Rehearing Denied Oct. 19, 1976.

G. Hughel Harrison, Lawrenceville, for appellant.

William Bryant Huff, Dist. Atty., Lawrenceville, Arthur K. Bolton, Atty. Gen., Isaac Byrd, Staff Asst. Atty. Gen., Atlanta, for appellee.

NICHOLS, Chief Justice.

The appellant, a female, was jointly indicted, along with Michael Davis and Sammy Kennett, for murder and four counts of armed robbery. She was tried separately and found guilty on all counts. Her motion for new trial was overruled and the present appeal filed.

The appellant had been trying to arrange a meeting with the victim through a friend for the purpose of buying cocaine. The money was not forthcoming and these efforts were abandoned. Her co-indictees overheard appellant and had her take them to the victim's apartment so that one of them could get a 'fix.' Only Davis went in and while in the apartment, he noticed large sums of money lying around. After he obtained the 'fix,' the plot to rob the victim began to hatch. Guns were obtained and appellant drove Davis and Kennett in her car back to the victim's apartment at about 4 a.m., dropped them off and then went to a nearby Waffle House Restaurant to wait. Davis and Kennett forced their way into the victim's apartment, robbed and killed him and also robbed three other occupants of the apartment. Davis and Kennett then went to the restaurant and departed the scene in appellant's car.

1. Enumerations of error 3 and 6 complain of the charge on circumstantial evidence and the weight to be given defendant's statement, which was made after she was arrested. The trial court charged in the language of Code § 38-109 and then charged on the sufficiency of the evidence to convict where conviction is dependent on circumstantial evidence alone. In the absence of a timely written request, this was a more favorable charge than defendant was entitled inasmuch as there was direct evidence of the defendant's participation in the planning of the robbery. See Gaines v. State, 232 Ga. 727(3), 208 S.E.2d 798 (1974).

The court also charged fully on the weight to be given defendant's statement. The jury was instructed: 'If you find that all of the warnings as to her constitutional rights were given, that the defendant did clearly understand the meaning of what was said and knowingly gave up such rights, and if you further find that the statement was voluntary then you may consider it as evidence. And you will apply the general rule testing the believability of witnesses and decide what weight, if any, you give to all or any part of such evidence.' These enumerations of error show no error.

2. Enumerations of error 4 and 5 complain of State's counsel prefacing his argument to the jury with statements to the trial judge of Supreme Court holdings in conspiracy cases. In Wilson v. State, 223 Ga. 531(7), 156 S.E.2d 446 (1967), this court held: 'It was not error to permit the prosecuting attorney to read from an opinion of the United States Supreme Court to the court in the presence of the jury. Nix v. State, ...