Walker v. State, 25678
| Decision Date | 09 April 1970 |
| Docket Number | No. 25678,25678 |
| Parties | James Henry WALKER v. The STATE. |
| Court | Georgia Supreme Court |
G. Douglas Dillard, Decatur, for appellant.
Richard Bell, Dist. Atty., Eugene Highsmith, Decatur, Arthur K. Bolton, Atty. Gen., Harold N. Hill, Jr., Exec. Asst. Atty. Gen., Marion O. Gordon, Asst. Atty. Gen., Charles B. Merrill, Jr., Atlanta, for appellee.
Syllabus Opinion by the Court
The defendant was convicted of rape, and, after a motion for new trial was overruled, filed the present appeal. This is a companion case to Mitchell v. State, 225 Ga. 656, 171 S.E.2d 140, where the conviction of a co-indictee was affirmed. During the trial of the case the defendant was represented by an employed attorney who withdrew from the case before the trial court ruled on the motion for new trial. On appeal the defendant is represented by other counsel employed to represent him.
1. Jackson v. State, 225 Ga. 790, 792, 171 S.E.2d 501, 503. The fifth enumeration of error is without merit.
2. An objection to evidence in the language 'I object to this being admitted' or 'I will object' is insufficient to present a question on appeal as to the admissibility of evidence. See Smith v. Smith, 223 Ga. 560(7), 156 S.E.2d 901, and citations. Accordingly, the sixth enumeration of error is without merit.
3. where during the trial of a criminal case a hearing is held outside the presence of the jury with reference to the voluntariness of a statement made by the defendant and at such hearing it is undisputed that prior to making such statement the defendant was advised of his constitutional rights and thereafter voluntarily made a statement the requirements of Jackson v. Denno, 378 U.S. 368, 84 S.Ct. 1774, 12 L.Ed.2d 908, 1 A.L.R.3rd 1205, are met and the admission of such statement, and the facts surrounding it, into evidence is not error. Accordingly, enumerations of error 7, 8, 10, 11, 12 and 20 are without merit.
4. While there was evidnce adduced on the trial of the case as to the circumstances of the defendant's arrest no contention was made on the trial as to any illegal arrest and the defendant in his statement showed that no illegal arrest was in fact made. Accordingly, the ninth enumeration of error shows no error.
5. Where a co-indictee is called as a witness by a defendant and is cross-examined by the State and no objection is made to such cross-examination on the trial of the case, no question as to the admissibility of such evidence is made by an enumeration of error raising the issue for the first time on appeal. See Bodrey v. Bodrey, 224 Ga. 348(2), 161 S.E.2d 864. The thirteenth enumeration of error is without merit.
6. Where an in custody written statement of a defendant is offered in evidence it must be shown that no constitutional rights of the defendant were violated in obtaining such statement, but once such showing is made (before the court alone and then before the jury) and there is no evidence that such rights have been violated the question for the jury is whether the statement was voluntarily made; and a charge embodying the principles of law contained in Code §§ 38-411 and 38-420 is not error because of the failure to charge the principles of law which deal with the admissibility of such statement into evidence. Enumeration of error numbered fourteen is without merit.
7. Evidence was introduced to show a conspiracy and a charge on such subject was authorized by the evidence. Compare Jackson v. State, 225 Ga. 39, 44, 165 S.E.2d 711. The fifteenth enumeration of error is without merit.
8. A charge on the effect of evidence of similar crimes by a defendant when there is no evidence adduced of any crime having been committed by the defendant other than on the occasion alleged in the indictment and for which the defendant is on trial is at most harmless error and not ground for a new trial. The sixteenth enumeration of error is without merit.
9. Where as in the present case the defendant in his unsworn statements freely admits that he freely made a written statement to police officers it is not reversible error, in the absence of any objection on the trial of the case, to permit the written waiver of counsel signed by the defendant before he made a statement to arresting officers to go with the jury to the jury room as do other exhibits. The case of Walker v. State, 215 Ga. 128, 109 S.E.2d 748, 927, and other cases relied upon by the defendant all involved situations where a timely objection was made to written testimony going into the jury room with the jury.
10. Under the decision in United States v. Wade, 388 U.S. 218, 87 S.Ct. 1926, 18 L.Ed.2d 1149, courtroom identification is strictly regulated where the witness has previously identified the prisoner in a lineup at a time when the prisoner is not represented by counsel. However, where then the prisoner admits his presence at the scene and introduces witnesses in his own defense who place him at the scene of the alleged crime, and where there is evidence of his fingerprints being found at the scene of the alleged crime so that courtroom identification by such witness is not the real basis of identification a new trial will not be granted merely because the prisoner was not represented by counsel during such lineup.
11. It is not error to fail to charge on circumstantial evidence where the case is not wholly dependent thereon. Pippins v. State, 224 Ga. 462, 162 S.E.2d 338; Williams v. State, 196 Ga. 503(1), 26 S.E.2d 926. Accordingly, where as in the present case the State's case against the defendant was not dependent entirely upon circumstantial evidence, it was not error to fail to charge on circumstantial evidence.
12. Where a defendant is represented by employed counsel who is admitted to the Bar of this State in good standing, a prima facie case is made that the defendant was represented by a competent attorney. See Hill v. Balkcom, 213 Ga. 58, 96 S.E.2d 589. Compare Woods v. State, 222 Ga. 321, 323, 149 S.E.2d 674. The complaints made as to lake of representation by the trial counsel employed to represent the defendant relate to tactical judgments made by such counsel and in the absence of a showing, and there is none in the present case, that the trial counsel's loyalty, integrity or best use of his ability is questioned, a new trial will not be granted on the ground that the defendant was not afforded competent...
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