Wanzer v. State, 28754
| Decision Date | 02 July 1974 |
| Docket Number | No. 28754,28754 |
| Citation | 232 Ga. 523,207 S.E.2d 466 |
| Parties | Terry Lee WANZER v. The STATE. |
| Court | Georgia Supreme Court |
Syllabus by the Court
1. The examination of the jurors by the trial judge showed conclusively that the unauthorized communication by the jury, through the bailiff, with the assistant district attorney had no effect on the verdict rendered, and therefore it was not error to deny the motion for mistrial based on this communication.
(a) Under the circumstances of this case, the absence of the appellant during the first portion of the hearing on the motion for mistrial, which was commenced by the appellant's attorney in the judge's chambers, does not require the grant of a new trial.
2. It was not error to permit a police officer to state the name he had received from an informer as the name of the person he identified on the trial as the appellant, for the purpose of explaining the officer's conduct in giving information about the appellant to other police officers.
3. The testimony objected to concerning a picture of the appellant which had not been admitted in evidence was merely for the purpose of identifying the picture for admission, and therefore it was not error to admit this identifying testimony.
4. It was not error to admit in evidence pictures which had been submitted to the victim, including one of the appellant, over the objection that they were taken from police files and would place the appellant's character in evidence, since all police information on the picture was blocked from the view of the jury.
5. The discretion of the court in controlling the conduct of the state's counsel toward a witness for the accused will not be interfered with since it appears that the accused was not harmed by the misconduct.
6. The constitutional attacks on Code Ann. § 26-2002 (Ga.L.1968, pp. 1249, 1299) and Code Ann. § 26-802 (Ga.L.1968, pp. 1249, 1271) are without merit.
7. The trial court did not err in denying the appellant's motion to suppress identification evidence.
8. There was no error in refusing to require the district attorney to furnish a laboratory report to the appellant.
Hester & Hester, Frank B. Hester, Atlanta, for appellant.
William H. Ison, Dist. Atty., J. W. Bradley, Jonesboro, Arthur K. Bolton, Atty. Gen., Robert S. Stubbs, II, Executive Asst. Atty. Gen., Richard L. Chambers, William F. Bartee, Jr., B. Dean Grindle, Jr., Asst. Attys. Gen., Atlanta, for appellee.
Terry Lee Wanzer was convicted in the Superior Court of Clayton County for the offenses of rape and aggravated sodomy, and intentionally aiding another to commit the same crimes. He was given two life sentences and two sentences of 20 years, all to run consecutively. He appeals from his conviction and sentences, and the denial of his motion for new trial as amended.
The evidence shows the following: In the early hours of July 3, 1973, the victim and her aunt were in Clayton County on the interstate highway, traveling from Macon to Atlanta. The victim was driving. An automobile occupied by two men came up behind the victim, and the driver started blinking the headlights. This automobile was then driven beside that of the victim, and the passenger in the automobile stated to the victim that her left tire was going flat. The victim pulled over to the side of the highway, and her aunt got out of the automobile to inspect the tire. The passenger in the other automobile threatening the victim with a pistol, forced his way into her automobile, and drove it away, leaving the victim's aunt on the side of the highway. The companion of the man who forced himself into the victim's automobile followed in his automobile. When both automobiles reached a secluded area, the man driving the victim's automobile committed rape and aggravated sodomy on her, and thereafter his companion committed the same acts.
The victim positively identified the appellant as the man who first forced himself into her automobile. His companion had not been identified at the time of the trial.
1. The first error enumerated is that the appellant was denied his constitutional right to be present at every stage of the proceedings against him by being involuntarily absent during the presentation of a motion for mistrial, and during a part of the evidence adduced pertaining to the motion.
The sixth error enumerated is the denial of the motion for mistrial referred to in the first enumerated error.
The motion for mistrial was in regard to an unauthorized communication between the jury, through the bailiff, and the assistant district attorney. It occurred soon after the jury began its deliberations on the question of guilt or innocence of the appellant. A member of the jury requested the bailiff to determine whether the indictment was complete. The bailiff took the indictment to the assistant district attorney, and told him the jury's question. The assistant district attorney arranged the indictment in order, stapled back a page that had become detached, and told the bailiff that it was complete. The bailiff communicated this information to the jury.
The motion for mistrial was made after the jury had brought in a verdict of guilty, and while they were deliberating on the sentences to be imposed. The attorney for the appellant made the motion to the trial judge in his chambers. The assistant district attorney, the bailiff, and a court reporter were also present. The appellant's attorney questioned the bailiff and the assistant district attorney concerning the unauthorized communication. The attorney for the appellant then made a motion for mistrial. Thereafter the judge, the assistant district attorney, and the appellant's attorney discussed the incident, and questioned the bailiff further.
The trial judge, at this point, called the jury back in the courtroom, and questioned the foreman of the jury and the juror who made the request for information to the bailiff. The court questioned each member of the jury as to whether the incident had any effect on the verdict, and each member replied that it had not. The judge thereupon determined that no harm had come to the appellant by the unauthorized communication, and denied the motion for mistrial.
The record indicates that the appellant was in a room adjoining the judge's chambers, with the door closed between the rooms, when the motion for mistrial was made, but was present in the courtroom during the questioning of the jurors.
Under the Constitution of the State of Georgia, Art. I, Sec. I, Par. IV (Code Ann. § 2-104), a person accused of crime has a right to be present at all stages of his trial. See Wilson v. State, 212 Ga. 73, 90 S.E.2d 557.
However, in some instances, because of the particular facts of the case, it has been held that some proceedings in the trial of an accused in his absence will not require the grant of a new trial. For instance see: Smith v. State, 59 Ga. 513, 27 Am.Rep. 393; Andrews v. State, 196 Ga. 84, 94, 26 S.E.2d 263; Gray v. State, 229 Ga. 808, 194 S.E.2d 479.
In the present case the hearing in the judge's chambers out of the presence of the appellant, was instituted by the appellant's attorney. The bailiff and the assistant district attorney were questioned extensively by this attorney prior to the time that he made the motion for mistrial, which was the first time that the trial judge could have known that the hearing in his chambers was a stage in the appellant's trial. The appellant's attorney made no effort to have his client present, although he was in the next room at the time.
The examination of the jurors by the trial judge showed conclusively that the unauthorized communication could not have harmed the appellant, since it had no effect on the verdict rendered, and the trial judge did not err in denying the motion for mistrial. Compare Whitlock v. State, 230 Ga. 700(1), 198 S.E.2d 865.
Under the particular circumstances of this case, hereinbefore related, the presentation by the appellant's attorney of the motion for mistrial concerning this harmless incident, out of the presence of the appellant, does not require the grant of a new trial.
2. The second error enumerated is that the appellant was denied his constitutional right to confront and cross examine a witness, in that a witness for the state, Lt. Robert Manders, of the Stockbridge Police Department, was permitted to testify that he 'had received the name of Jerry or Terry.'
This witness testified that he had seen a man, whom he described, in a vehicle answering the description given by the victim of the one in which the rapists were riding, at about 8:00 or 8:30 p.m. of the day preceding the day the crimes were committed. This witness had seen the man a time or two before in an eating...
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