Walker v. State
Decision Date | 14 June 1974 |
Docket Number | No. 49012,3,Nos. 1,2,49012,s. 1 |
Citation | 132 Ga.App. 274,208 S.E.2d 5 |
Parties | Lee WALKER v. The STATE |
Court | Georgia Court of Appeals |
Guy B. Scott, Jr., Athens, for appellant.
Harry N. Gordon, Dist. Atty., Athens, for appellee. Syllabus Opinion by the Court
Lee Walker was indicted and convicted of the offense of aggravated assault, for that he shot through a door at Jacob Reese and wounded him in the hand and arm to the extent that it had to be amputated. He appeals, enumerating as error (1) the overruling of his motion for new trial on the general grounds, (2) allowing the prosecutor to remain in the courtroom, sequestration having been invoked, and to testify after other witnesses had done so, (3) denial of a mistrial because of an expression of opinion as to guilt by the District Attorney in his opening statement, (4) refusal to allow defendant to make an unsworn statement, the offense having occurred prior to the repeal of the unsworn statement law by amendment of Code Ann. § 38-415 and tried afterward, and (5) a charge that the jury might, in considering the defendant's sworn testimony, take into consideration the fact that he was interested in the outcome of the case, as well as his demeanor and conduct while on the stand. Held:
1. The general grounds are without merit.
2. The district attorney requested of the court that the prosecutor be allowed to remain in the courtroom to assist in the presentation of the case. Benton v. State, 9 Ga.App. 291(6), 71 S.E. 8. Accord: Dye v. State, 220 Ga. 113, 114(2), 137 S.E.2d 465; Sparks v. State, 121 Ga.App. 115(3), 173 S.E.2d 239.
3. In his opening statement to the jury the district attorney asserted 'He (the judge) will tell you what the law is, and you are supposed to apply the law to the facts that have been presented to you, but I really and truly believe that you are going to find that he (the defendant) was not justified in blowing a man's hand off or the lower part of his arm off, and that he was under some kind of reasoning . . .' to which counsel for the defendant interposed objection and moved for a mistrial on the ground that it was improper for the district attorney to state his personal opinion as to the guilt or innocence of the defendant.
The court admonished the jury to disregard this statement of the district attorney, informed them that while the district attorney had the right to state what the state expected to prove and what he believed the evidence would justify to the jury in drawing certain inferences, but that he was not permitted to assert a personal belief as to the defendant's guilt, and that it was wholly a prerogative of the jury to decide the matter of guilt or innocence from the facts as proven; that they were not to be influenced in any expression of personal opinion by counsel and that it was to be utterly disregarded, and thereupon denied the motion for mistrial.
"(T)his court has repeatedly held that if the trial judge acts immediately, and in the exercise of his discretion takes such action as in his judgment prevents harm to the accused as a result of such improper statements, a new trial will not be granted unless it is clear that such action failed to eliminate from the consideration of the jury such improper statements. Brown v. State, 148 Ga. 264, 266, 96 S.E. 435; Johnson v. State, 150 Ga. 67(1), 102 S.E. 439; Waller v. State, 164 Ga. 128(4), 138 S.E. 67.' Nelson v. State, 187 Ga. 576, 583, 1 S.E.2d 641; Spell v. State, 225 Ga. 705, 708, 171 S.E.2d 285. See also Moore v. State, 228 Ga. 662, 664, 187 S.E.2d 277.' Howard v. State, 229 Ga. 839, 840, 195 S.E.2d 14, 15. As in those cases, no abuse of discretion appears here.
4. The crime is alleged (in the indictment) to have been committed April 2, 1973. The unsworn statement law was repealed by Ga.L.1973, p. 292, Code Ann. §§ 26-401(a), 27-405; and 38-415, effective July 1, 1973. This trial was held August 7, 1973. When the state concluded the introduction of its evidence and rested defendant's counsel sought to put the defendant up for making an unsworn statement, contending that since the crime was alleged to have been committed prior to the effective date of the law abolishing unsworn statements, the abolition did not apply to the defendant.
The trial judge observed that in his view the change made by Ga.L.1973, p. 292 was procedural only, and that it did apply to the present situation so that the defendant had only two options, one being to remain silent-which could not be held against him, and the other to take the stand, be sworn and testify as a witness. Under objection and protest the defendant elected to testify, and did. This ruling by the trial judge is enumerated as error.
If the change effected by Ga.L.1973, p. 292 was procedural only and did not alter the situation to the disadvantage of the accused, the ruling of the trial judge was correct.
A similar situation arose when the bifurcated trial was introduced into our criminal procedure, and an accused whose offense was alleged to have been committed prior to the effective date of that Act objected to the trial of his case under it, asserting that he had the right to proceed under the law as it had existed when the offense was committed. Our Supreme Court, in Todd v. State, 228 Ga. 746, 187 S.E.2d 831, after an excellent research of the problem raised, held that the change was procedural only and application of the new procedure did not violate the ex post facto rpinciple.
In Todd, supra, the court relied on and quoted approvingly from People v. Ward, 50 Cal.2d 702, 328 P.2d 777; Thompson v. Utah, 170 U.S. 343, 18 S.Ct. 620, 42 L.Ed. 1061 and Thompson v. Missouri, 171 U.S. 380, 387, 18 S.Ct. 922, 43 L.Ed. 204, all of which were criminal cases dealing with the issue of whether an act which is procedural in nature violates the ex post facto rule when applied to a previously committed offense. These cases hold that there is no violation unless it results in the infliction of greater punishment for the crime or 'alters the situation of the accused to his disadvantage.'
The disadvantage test is found in Thompson v. Missouri, supra: These same things can be said of the Act abolishing the unsworn statement. It does not change the character of the offense charged, or the punishment which may be imposed. It does not lessen the burden of proof resting upon the state. It does not alter the rules of evidence .
The accused has no vested right in procedural matters. 'A party has no vested right in a defense based upon an informality not affecting his substantial equities . . . there is no such thing as a vested right to do wrong.' Bullard v. Holman, 184 Ga. 788, 193 S.E. 586, 113 A.L.R. 763; Darby v. Cook, 201 Ga. 309, 311, 39 S.E.2d 665. '(F)or the purpose of operating on the remedy only, the Legislature may, undoubtedly, pass Retrospective Acts; and for such purposes, they are not unconstitutional.' Knight v. Lasseter, 16 Ga. 151, 153. Willis v. Fincher, 68 Ga. 444. And so here, the Act of 1973, when it became effective on July 1 of that year simply caused the procedure of making an unsworn statement by defendants in criminal cases to cease to exist, and substituted the procedure of sworn testimony.
5. Error is enumerated upon a portion of the charge relating to the testimony of the defendant in which the court instructed: 'You have the right to take into consideration the fact that he is interested in the result of the prosecution, as well as his demeanor and conduct on the witness stand.' We find no error. 'The jury would be authorized to give his testimony such weight and credit as that of any other witness.' Williams v. State, 223 Ga. 773, 775(4), 158 S.E.2d 373, 375. Accord, Hogan v. State, 221 Ga. 9, 12, 142 S.E.2d 778. '(W)hen (the accused) does so testify (he) at once becomes...
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