Waldrip v. State

• Citation: 266 Ga. 874,471 S.E.2d 857
• Decision Date: 01 July 1996
• Docket Number: No. S96A0665,S96A0665
• Parties: WALDRIP v. The STATE.
• Court: Supreme Court of Georgia

Page 857

471 S.E.2d 857

266 Ga. 874

WALDRIP v. The STATE.

No. S96A0665.

Supreme Court of Georgia.

July 1, 1996.

Curtis Wayne Miller, Miller, Rucker & Associates, Lithonia, Neil A. Smith, Gainesville, for Waldrip.

Lydia J. Sartain, Dist. Atty., Gainesville, Michael J. Bowers, Atty. Gen., Atlanta, Wesley S. Horney, Asst. Atty. Gen., Atlanta, for State.

Lee Darragh, Asst. Dist. Atty., Gainesville.

SEARS, Justice.

The appellant, John Mark Waldrip, was convicted of the felony murder of Keith Evans and of kidnaping with bodily injury, aggravated assault, influencing a witness, and possession of a firearm by a convicted felon. Although the state sought the death penalty and the jury found several aggravating circumstances, the jury recommended that John Mark receive a life sentence. ¹ John Mark appeals, contending that the trial court erred in having lunch with the jurors on the day they were selected to serve; that the trial court erred in admitting several statements of his co-conspirator and father, Tommy Lee Waldrip, into evidence; that the court erred in failing to give his requested charges on reckless conduct and involuntary manslaughter; that the evidence is insufficient to support his convictions for felony murder, aggravated assault, and kidnaping with bodily injury; that the trial court erred during opening statements in permitting the prosecutor to read verbatim the text of a conversation between Tommy Lee and himself when the court had specifically reserved until trial a ruling on the admissibility of that conversation; and that the trial court erred in allowing the state to introduce similar transaction evidence. For various reasons, we find no merit to most of these issues. Further, although the better practice would have been for the trial court not to have had lunch with the jury, we conclude that the record demonstrates that no prejudice resulted to John Mark from the trial court having done so. Similarly, we conclude that, even if the prosecutor should not have specified the content of Tommy Lee's conversation with John Mark in opening statement because the trial court had reserved a ruling on the admissibility of the conversation until trial, the fact that the prosecutor did so did not prejudice John Mark and does not require a reversal. We thus affirm John Mark's convictions.

1. The state presented evidence showing that the murder victim, Keith Evans, was the only eyewitness to an armed robbery, for which John Mark Waldrip had been indicted. Evans testified against John Mark on the armed robbery charge, resulting in John Mark's conviction. The trial court, however, granted John Mark's motion for a new trial. The new trial was scheduled to begin April 15, 1991.

On April 3, 1991, Robert Garner, John Mark's accomplice in the armed robbery, for the first time gave a statement to the police implicating himself and John Mark in that robbery. Garner was scheduled to testify against John Mark at the retrial. However, some time after dinner on the evening of April 13, Waldrip telephoned Robert Garner and asked him if he were going to testify against him. Garner testified that he told John Mark that he would not. According to Garner, John Mark then responded that he had "worked hard on this case and it's right where I want it," and that he [Garner] had better not "burn him."

Keith Evans, like Garner, was scheduled to testify against John Mark at the retrial for armed robbery. Evans, however, disappeared on April 13, and late that night, his pickup truck was found burned on a rural highway. Suspicion focused on John Mark Waldrip, and on April 14, police spoke first with Tommy Lee Waldrip and Linda Waldrip (Tommy Lee's wife), and later that day spoke with John Mark. Tommy Lee's April 14 statement was introduced into evidence at trial. In it, he stated that about 7:00 p.m., he had gone to see someone about buying a car; that he ate supper and watched TV; that about 9:00 p.m., he went by himself to see his wife's brother, Howard Livingston; and that about 11:00 p.m., he returned home. In John Mark's April 14 statement, he stated that early in the afternoon of April 13, his father had dropped him off at a pool room, where he met three people. John Mark stated that one of those people brought him home about 11:00 p.m., but that he could not remember if the other two friends were with him at that time. All three of the people that John Mark named testified at trial. They stated that the GBI interviewed them on April 14, and that they told the GBI that they had not seen John Mark on April 13. They reiterated at trial that they had not seen John Mark that day.

On April 15, the prosecution asked for a continuance on the armed robbery charge because Evans had not been located and because Garner had informed the prosecutor on April 14 that John Mark had threatened him and that he would not testify against John Mark. The trial court granted the prosecution a continuance.

Because John Mark's contact with Garner violated John Mark's conditions for bond, his bond was revoked and he was incarcerated. On April 15, while in jail awaiting the robbery retrial, Waldrip stated, in the presence of his cellmates, that the state did not have a case on the robbery charge because one of the witnesses who was supposed to testify against him had been killed and another had "smelled the coffee" and would not be testifying against him.

On April 18, 1991, the body of Keith Evans was discovered. He had been beaten with a blunt object, shot twice with a shotgun, and buried in a shallow grave. That same day, Tommy Lee was interviewed by the police and confessed that he and Howard Livingston had killed Evans. He stated that he, Livingston, and John Mark were in Tommy Lee's truck on April 13 when they saw the victim's truck drive by. Tommy Lee stated that he then let John Mark out of his truck, and that he and Livingston followed the victim, ran him off the road, and killed him. Later in the day on April 18, John Mark and Tommy Lee asked to see each other. They were permitted to do so in the presence of a police officer. The officer testified that his job was to insure that Tommy Lee and John Mark did not discuss the case so as to "get their stories together." During the conversation, Tommy Lee told John Mark that he (Tommy Lee) had told the police both that he and Livingston had killed Evans and that John Mark was not there because Tommy Lee and Livingston had made John Mark walk home. The officer then stopped Tommy Lee and John Mark from having any further conversation. Still later in the day on April 18, John Mark gave a statement to police that was introduced into evidence at trial. In that statement, John Mark admitted being in the truck with his father and Livingston when they saw the victim's truck. He also stated that his father let him out of the truck before chasing down and killing Evans. As for the shotgun that his father had in his truck, John Mark added that Tommy Lee "ought to have took the gun just to keep ... Evans, to make him listen, to stop him or whatever. I didn't believe for one minute he would kill that boy."

Contrary to John Mark's fourth enumeration of error, we conclude that the foregoing evidence was sufficient to support his convictions for felony murder, kidnaping with bodily injury, and aggravated assault. ²

2. In his first enumeration of error, John Mark contends that the trial court committed reversible error when it accompanied jurors, outside the presence of John Mark and his counsel, to lunch the day after they were empaneled. Although we strongly caution trial judges against such practices, we conclude that no prejudice resulted to John Mark under the circumstances of this case.

Before the trial began, the trial judge stated that he had had lunch with the jurors the day after they were selected. The lunch occurred at the hotel at which the jurors were sequestered. The judge stated that he had done so to ensure the jurors comfort and convenience, and that he and the jurors had engaged in "informal chitchat" unrelated to the case. John Mark objected and made a motion for mistrial, which the trial court denied. After the jury returned its verdict, the trial judge called each of the jurors into the courtroom one at a time to place on the record their recollection, if any, of anything the trial judge might have said to them at lunch. All of the jurors stated that nothing the judge said or did had any influence in their verdict at either the guilt-innocence or sentencing phases of the trial. Six of the jurors stated that they could not remember anything that the judge said to them. Another of the jurors stated that she knew "for a fact we did not talk about anything related to the case," and others related specific small talk that they recalled. One of the jurors, Mr. Blackwell, recalled that "[w]e was talking about my little granddaughter and my wife and I told you [the judge] if those two girls come up I might have to break the law and I showed you a picture." The juror stated that the judge responded that he "might do the same thing." After all the jurors had been questioned, the judge stated that before lunch began that day, he gave the jury some brief preliminary sequestration instructions because the day before, when the jury had been selected, court had run late into the evening, and the judge had not at that time given them copies of their sequestration instructions.

We have held that "all communications with the jury are to be discouraged except in open court with all persons present." ³ Further,

"[t]he rule is well established in this State, that the defendant on trial must be present when the court takes any action materially affecting his case." Andrews v. State, 196 Ga. 84, 94, 26 SE2d 263 (1943); see Wanzer v. State, 232 Ga. 523, 526, 207 SE2d 466 (1974). "This right is guaranteed to the accused by the fundamental law of this State, in order that he and his counsel may...