Watkins v. State

• Decision Date: 05 October 1976
• Docket Number: No. 31074,31074
• Parties: Earnest WATKINS v. The STATE.
• Court: Georgia Supreme Court

Page 465

229 S.E.2d 465

237 Ga. 678

Earnest WATKINS v. The STATE.

No. 31074.

Supreme Court of Georgia.

Oct. 5, 1976.

Sanders, Mottola, Haugen, Wood & Goodson, H. Parnell Odom, Theo D. Mann, Newnan, for appellant.

William F. Lee, Jr., Dist. Atty., Newnan, Arthur K. Bolton, Atty. Gen., Kirby G. Atkinson, Staff Asst. Atty. Gen., Atlanta, for appellee.

INGRAM, Justice.

Appellant Earnest Watkins prosecutes this appeal from his convictions by a jury of armed robbery and simple battery in Coweta Superior Court. He received concurrent sentences of 20 years for the armed robbery and 12 months for the battery offense. We find harmful error in one of the enumerations of error urged in this appeal and reverse the trial court's judgment denying a new trial.

The crimes were committed in the late morning of August 25, 1975, while the victim, a Coweta County Deputy Sheriff, was patrolling a rural area of the county. The deputy testified that after he had stopped a car that did not have a license tag, the passenger whom the deputy identified as appellant, pointed a pistol at him. The driver of the vehicle handcuffed the deputy's hands behind his back. The two men then led the deputy into a wooded area where the driver beat and kicked the deputy until he lost consciousness. When the deputy awoke, he discovered that his pistol was missing. After his arrest one or two days later, appellant confessed to the crimes and led police to the scene. His confession was admitted into evidence at his trial after a Jackson v. Denno hearing.

In his own defense appellant testified that on the day in question he was working on his car in Fairburn, Georgia. This alibi testimony was corroborated by seven other defense witnesses, each of whom had been with appellant at various times from early morning to the early afternoon of August 25, 1975. In explanation of his confession appellant testified that the sheriff was asking so many questions of him that he merely began answering 'Yes' to all of them. Furthermore, he testified that he did not lead the police to the scene of the crimes, but, rather, was taken there by the police and asked if that were the place.

The jury began deliberations in the late afternoon of September 8, 1975, but did not return a verdict until the morning of September 10. In the interim, the jury was permitted to disperse at night and resume deliberations during the day. While the jury was deliberating the trial judge made several inquiries as to the numerical division of the jurors and also charged the jurors on their responsibility to reach a verdict if they could do so. This charge was substantially the same charge approved by this court in Spaulding v. State, 232 Ga. 411(4), 207 S.E.2d 43 (1974). We do not agree with appellant's contention that the charge given by the trial judge and his subsequent inquiries of the jury were coercive in nature. In support of this conclusion, see Spaulding v. State, supra, and Stone v. State, 132 Ga.App. 703(3c), 209 S.E.2d 121 (1974); see, also, Huffaker v. State,119 Ga.App. 742(2), 168 S.E.2d 895 (1969); Driver v. State, 112 Ga. 229(2), 37 S.E. 400 (1900); and, O'Bryant v. State, 222 Ga. 326(6),149 S.E.2d 654 (1966).

We have also considered the enumerated errors relating to the overruling of defense counsel's motions for a continuance and a mistrial. These motions were made on the grounds that counsel needed additional time to obtain an psychiatric evaluation of appellant and that appellant was unable to assist counsel in the preparation of his own defense. It is argued on appeal that these adverse rulings in the trial court deprived counsel of adequate time to prepare a defense. We find no merit in these enumerations of error as no special plea of insanity was filed in the trial court and the trial judge acted within the bounds of his discretion in denying these motions.

A motion for a continuance is always addressed to the sound discretion of the trial court (Dutton v. State, 228 Ga. 850(2), 188 S.E.2d 794 (1972)), and so is a request for a psychiatric examination of the defendant when a special plea of insanity has not been filed. Holsey v. State, 235 Ga. 270(3), 219 S.E.2d 374 (1975). The trial court was informed only that appellant had been at Central State Hospital, for unspecified reasons, some six or seven years before the crimes were committed, and it appears that defense counsel did not question appellant's competency to stand trial until the night before trial when he was told of appellant's stay at Central State. Accordingly, we hold the trial court did not err by denying the motions for continuance or for mistrial.

On the second day of its deliberations the jury returned to the courtroom and made the following request: 'We have requested yesterday if we could hear the transcript of Earnest Watkins (the appellant). Can we have the record to hear the playback?' Defense counsel then made the following objection: 'Your Honor, I would object to any purported testimony of Earnest Watkins be taken to the jury room. I think the law is that the jury is to take the facts from where they remember them and apply the law of the court to the facts as they remember them. I have never seen one of these machines. I have no idea how Ernest's testimony is going to come out. We'll object to any record of the testimony being taken into the jury room for Earnest Watkins' testimony without giving at least, giving us an opportunity to hear it or to see what it's going to do. I object strenuously to this.' The trial judge overruled the objection, and after ascertaining that the court reporter's stenographic notes had not yet been transcribed but that the reporter had also tape recorded the trial testimony, the court ruled the reporter could play to the jury the tape of appellant's testimony. The tape was first reviewed in open court in the presence of appellant and his counsel. The transcript states that then '(t)he (tape) recording was made available to the jury at this time.'

At the direction of this court the trial judge has supplemented the record of these events and has now certified that only the requested tape recording of appellant's trial testimony was played to the jury by the court reporter in the jury room. This was done in the presence of the trial judge but outside the presence of appellant and his counsel and the district attorney. Defense counsel made no additional objection and did not request that he and appellant be present when the taped testimony was actually played for the jury.

A trial judge may, in his discretion, comply with a request of the jury to hear during their deliberation a portion of the trial testimony. Person v. State, 235 Ga. 814(3), 221 S.E.2d 587, (1976). However, this procedure should be conducted in the presence of the defendant and his counsel. Wade v. State, 12 Ga. 25, 28 (1852); Green v. State, 43 Ga. 368, 373 (1871); Johnson v. State, 136 Ga.App. 719(1), 222 S.E.2d 181 (1975). In our opinion, it was error for the trial judge to permit the testimony of appellant to be replayed to the jury in the jury room. Generally, the defendant has a right to be present at all stages of the trial when testimony is being heard or reheard by the jury. The jury should be returned to the courtroom to hear the testimony in the presence of both counsel and the appellant. This safeguards the fairness of the proceedings and protects the defendant's right to be heard that is essential to the orderly conduct of the trial.

The question remains, however, whether this error was harmful to appellant requiring a reversal and a new trial. The combination of several factors in this case persuades us that the error was not harmful to appellant and does not require a reversal of his conviction. First, we think it is significant that only appellant's testimony, which was favorable to him, was replayed for the jury. Thus, the rationale of the harmful error situations presented where evidence prejudicial to the defendant is allowed to go out with the jury and be reheard during the deliberations of the jurors is wholly absent in this case. Secondly, the trial judge personally supervised the playing by the court reporter of the requested part of the tape containing appellant's testimony to ensure fairness to the appellant in the playing of the tape. In addition, defense counsel did not object to this procedure at the trial but finally objected only to the replaying of the testimony for the jury without first giving the defense an opportunity to review it. As the tape was first reheard in open court in the presence of counsel and all interested parties, and counsel made no further objection to it, we think counsel's initial objection was satisfied.

The circumstances of this case distinguish it from those cases in which harmful error has been shown. Instead, the present case is similar to Proctor v. State, 235 Ga. 720, 221 S.E.2d 556 (1975), where written statements of the defendant and several defense witnesses were erroneously permitted to go out with the jury but the error was held to be harmless under the facts of that case. We reach the same conclusion in this case but note that, under other circumstances, this error could be harmful and require reversal.

During his closing argument to the jury, the prosecutor stated, '(Y)ou can get up to ten years for forging a check, but you can stomp on somebody and kick him in the groin and not get but twelve months . . . Simple battery, twelve months is all he can get for that offense. The defendant, if found guilty on Count 2 and not guilty on Count 1, that's the most punishment that he can receive, twelve months.' Defense counsel did not object to these remarks until after the trial court had charged the jury. At that time, counsel made a motion for mistrial based upon the improper closing argument of the district attorney.

The trial judge overruled the motion but called the jury to the courtroom and instructed them...