Estes v. State, 28760
| Decision Date | 06 September 1974 |
| Docket Number | No. 28760,28760 |
| Citation | 208 S.E.2d 806,232 Ga. 703 |
| Parties | Anthony Leon ESTES v. The STATE. |
| Court | Georgia Supreme Court |
Syllabus by the Court
1. The evidence amply supported the verdict.
2. The trial court did not err in overruling the plea in abatement challenging the composition of the grand jury.
3. The appellant did not carry the burden of showing that blacks were systematically excluded from the petit jury.
4. Incriminating statements and a handwritten confession of the appellant were not erroneously admitted.
5. Admission of the testimony of the nurse who first examined the victim was harmless error.
6. Admission of the transcript of the pre-trial hearing was not cause for reversal.
C. C. Perkins, Carrollton, for appellant.
John T. Perrin, Dist. Atty., Dallas, Arthur K. Bolton, Atty. Geh., Robert S. Stubbs, H. Executive Asst. Atty. Gen., Richard L. Chambers, William F. Bartee, Jr., G. Stephen Parker, Asst. Attys. Gen., Atlanta, for appellee.
Anthony Leon Estes was indicted for the offenses of rape, aggravated sodomy and aggravated assault and convicted in the Superior Court of Paulding County on the charges of rape and aggravated assault. He appeals his convictions and sentences of life imprisonment for the rape and ten years for the aggravated assault, enumerating thirteen errors.
1. The enumeration asserting that the evidence did not support the verdict cannot be sustained.
It showed that the victim on September 23, 1972, in her apartment on Paulding Lane in Dallas, Georgia, was awakened sometime after 2:30 a.m. by a touch on her arm as she lay sleeping in her bed; that thinking that it was one of her children she started to sit up when she saw a man, whom she identified as the appellant, with a bottle in his hand; that she screamed, and he began hitting her in the head and face with the bottle until it broke; that when the bottle broke he began beating her with his fists; and that she then lost consciousness.
The victim further testified that when she regained consciousness the appellant was on top of her and having sexual intercourse with her; that she began to cry and he told her to 'cool it, baby, or I'll kill you right now'; that he told her to perform an oral sex act upon him but she could not because of the injuries to her mouth and jaw; and that he then got back on top of her and had sexual relations with her again, telling her that if she told anyone, 'He had ten brothers and I'd had it.'
She also swore that there was sufficient light from a nearby street light to see the appellant clearly; that he told her his name was Tony Smith; that she did not see anyone else during the entire episode; and that she had not seen him since the assault.
She identified the appellant in the courtroom as her assailant.
Other witnesses, including her ten year old daughter and several neighbors, testified as to the victim's outcry and bloody condition immediately following the incident. One neighbor stated that when he went to the victim's apartment to stay with her children while she went to make a telephone call, he saw a black male walking out of her apartment but that the person he saw was not the appellant. Medical witnesses testified as to her condition upon admission to the hospital and examination that she had multiple lacerations and bruises and there was evidence of recent vaginal bleeding; and that she stated that 'a colored man raped me and beat me up.'
Ruffin Hightower, a friend of appellant's, testified that there was a going away party for appellant on the night of September 22, 1972, in honor of his entering the army; and that following the party he drove the appellant to Dallas, Georgia, and let him out at about 2:00 a.m. near a lumber yard on the Villa Rica Highway.
Testimony of the law officers who investigated the attack revealed the following: that those present at the going away party were being investigated; that Ruffin Hightower stated that the appellant had gotten out of his car on the night of offenses occurred in the vicinity of the crime; that a deputy sheriff of Paulding County and the Sheriff of Douglas County and two other men went to Fort Jackson, South Carolina, to talk to appellant, who had not been interviewed prior to this time and was not a suspect; that appellant was located by the Criminal Investigation Division (C.I.D.) there and brought to a C.I.D. building; that he was told he was not under arrest, did not have to talk and was advised of the subject matter of the investigation.
Sheriff Lee stated that appellant said he 'had been expecting' the officers; and that when he told him that Ricky Hightower, Ruffin Hightower's brother, had been arrested as a suspect, and appellant admitted his participation in the attack. In an oral statement to Sheriff Lee appellant said that he met Robert Favors after getting out of Ruffin Hightower's car near the lumber yard; that he and Favors went to the victim's apartment, got in through the back door and went upstairs to her bedroom; that Favors beat her with a Coke bottle that he (appellant) raped her and then left the apartment to call an ambulance, but returned briefly.
After making this statement, he indicated a desire to send a message to his parents. Sheriff Lee provided a tape recorder for him and left him alone in the room. In this message, which was transcribed and read and also played at the trial, appellant stated that he 'did it'; that 'I told them a few lies at first and then I told them the truth,' but he was not scared any more; that Ricky Hightower was in jail for something he had done and he had to pay for it because an innocent person should not die for a guilty person; that what Ruffin Hightower said was the truth; and that 'I know I've done lost my reputation and all that but sometimes it's just got to be like that . . .'
Two days later the officers went to the Richland County Jail in Columbia, South Carolina, where appellant was being held, with a warrant for his arrest. When he was shown the warrant and advised of his constitutional rights he agreed to make a handwritten statement, which was read and introduced into evidence at the trial. He stated therein that he had been drinking and was walking down the road in the direction of the housing project when he saw Favors; that they walked around until they got to the victim's apartment; that Favors told him to get a bottle so he got a 16-ounce Coca-Cola bottle; that Favors told him to hit the lady with the bottle if she woke up and he said O.K., but Favors grabbed the bottle out of his hand when she began to scream and 'hit her three or four times on the left side of the face'; that Favors pulled her clothes off but he (appellant) 'started having sex with her first and I told her my name was Tony Smith'; that when he left to call a doctor Favors was still there; that he called an ambulance at a house down the street and the driver said to leave a light on the front porch; and that when he 'went back to tell the prople to leave the light on the front porch, it was a guy on the porch and a girl standing in the door'; and that he told them to leave a light on and left. He further stated that he entered the army on September 25.
In our view, even though some of the evidence was conflicting, it amply supports the verdicts of guilty of rape and aggravated assault.
2. Enumerated error 1 contends that the court erred in overruling appellant's plea in abatement challenging the composition of the grand jury that indicted him because it contained no persons aged 18 through 20 years, and in refusing to quash the indictment.
At the pretrial hearing on this motion it was stipulated that there were no persons in this age category in the group from which appellant's grand jury was selected. The appellant argued at that hearing that because he was eighteen years old at the time he was indicted the failure to have eighteen through twenty-year-olds on his grand jury deprived him of his constitutional rights.
Upon appeal it is urged that the language of Code Ann. § 74-104.1 (Ga.L.1972, pp. 193, 199; 1973, p. 590), which states in material part that 'It is the intention of the age of majority law to reduce the age of legal majority in this state from 21 years of age to 18 years of age for all purposes so that all persons who have reached the age of 18 shall have all the rights, privileges, powers, duties, responsibilities and liabilities heretofore applicable to persons who were 21 years of age or over,' entitles the appellant to have 18-year-olds serve on grand juries; and the fact that there were no 18-year-olds on the Paulding County Grand Jury that indicted him deprived him of the...
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