Watts v. State

Decision Date11 January 1977
Docket NumberNos. 53080,53081,No. 2,s. 53080,2
Citation141 Ga.App. 127,232 S.E.2d 590
PartiesSamuel WATTS v. The STATE. C. R. DORRIS v. The STATE
CourtGeorgia Court of Appeals

Leonard Cohen, Jonesboro, for Watts.

McAllister & Roberts, J. Durham McAllister, Jonesboro, for Dorris.

William H. Ison, Dist. Atty., J. W. Bradley, Asst. Dist. Atty., Jonesboro, for appellee.

MARSHALL, Judge.

The appellants Watts and Dorris, were jointly indicted, tried and convicted of the offenses of aggravated assault and aggravated battery. Dorris was sentenced to serve 20 years for the aggravated battery and 10 years for the aggravated assault, said sentences to run consecutively. Watts was sentenced to serve 15 years for the aggravated battery and 5 years for the aggravated assault, his sentences also to run consecutively. Dorris enumerates 15 alleged errors and Watts enumerates 10. Many of the errors enumerated are duplicative but some are unique to each accused. Inasmuch as the alleged errors arose out of the same trial, however, we will treat the appeals as one. Held:

1. Each appellant enumerates as error the refusal of the trial court to order at state expense a verbatim transcript of the arguments of counsel and of the voir dire. The argument proceeds on the basis that the affluent defendant can afford to pay for a transcript and the fact of indigency of these two defendants deprives them of equal protection of the law unless the state furnishes them a free and complete transcript. It is noted that the court reporter recorded and transcribed those portions of the argument of counsel and those portions of the voir dire at which objection or controversy occurred.

This case did not authorize the imposition of the death sentence, consequently there was no requirement to provide a verbatim transcript of the entire voir dire to enable this court to determine possible issues falling within the holding of Witherspoon v. Illinois, 391 U.S. 510, 88 S.Ct. 1770, 20 L.Ed.2d 776. Moreover, Code § 27-2401 expressly relieves the trial court of ordering the court reporter to prepare verbatim recordings of the arguments of counsel. See Harris v. State, 237 Ga. 718, 725-727, 230 S.E.2d 1. Appellants make no contention that the transcript is inaccurate nor have they shown any specific error or harm occurring within the portions of the voir dire and arguments omitted. At best, appellants have shown only that they had to appeal on an incomplete record. These are matters that rest in the sound discretion of the trial court. In the absence of an indication of specific prejudice, we find no abuse of that discretion. This enumeration is without merit. See Welch v. State, 237 Ga. 665, 669, 229 S.E.2d 390; Newell v. State, 237 Ga. 488, 490, 228 S.E.2d 873; Chenault v. State, 234 Ga. 216, 220, 215 S.E.2d 223; Hall v. State, 202 Ga. 619, 44 S.E.2d 234.

2. In their second common enumeration of error, appellants complain that they were denied potentially exculpatory evidence because the trial court denied them general access either directly or through an in-camera examination by the court to the files prepared and maintained by the state. This included possible prior convictions pertaining to the state's witnesses, any exculpatory matters in the state's files, and evidence of statements made by either appellant.

We start with the general proposition that the prosecution is not required to open its files for general inspection, and the appellant has the burden of showing how his case has been materially prejudiced even when the trial court declines to make an in-camera inspection. Street v. State, 237 Ga. 307, 316, 227 S.E.2d 750. It is true that Brady v. Maryland, 373 U.S. 83, 83 S.Ct. 1194, 10 L.Ed.2d 215, does require the state, on the defendant's request, to disclose evidence favorable either to defendant's guilt or punishment. But the defendant in a criminal case cannot compel the unfettered discovery and inspection of evidence in the possession of the state. Quick v. State, 139 Ga.App. 440, 441, 228 S.E.2d 592. Nor is the defendant entitled as a matter of right to receive copies of police reports and investigative reports made in the course of preparing the case against a defendant. Nations v. State, 234 Ga. 709, 217 S.E.2d 287; Lundy v. State, 139 Ga.App. 536, 538, 228 S.E.2d 717. Moreover, it was not error to fail to provide a written reproduction of an oral statement made by the appellant Dorris. Tarpkin v. State, 236 Ga. 67, 69, 222 S.E.2d 364; Hudson v. State, 237 Ga. 443, 444, 228 S.E.2d 834.

In this case a part of the material sought by the appellants clearly was evidence which was not in the prosecution's file. This evidence could have been obtained only if the prosecution actively sought it. For the trial court to require production by the state of such evidence would require the state to investigate the case for the defense. This goes beyond the constitutional limits of Brady v. Maryland, supra, which only proscribed the suppression by the prosecution of evidence favorable to an accused. The prosecution does not suppress evidence by refusing to conduct a search for it, even though the evidence may be more accessible to the state than to the defense. Hicks v. State, 232 Ga. 393, 394, 207 S.E.2d 30; Rini v. State, 236 Ga. 715, 718, 225 S.E.2d 234. Finally, the appellants ultimately had access to all evidence used by the state. They have demonstrated no surprise, no prejudice, nor shown any inability to defend themselves fully and adequately by the withholding of real evidence in the hands of the state. It is an old and sound rule that error to be reversible must be harmful. Dill v. State, 222 Ga. 793(1), 152 S.E.2d 741. This enumeration has no merit.

3. In their third combined enumeration of error, appellants complain that the trial court erred in not discharging one of the panels of the traverse jury. Because of crowded court conditions, one of the traverse jury panels prior to voir dire was placed in a room ordinarily used by witnesses. In that room was inadvertently placed a newspaper containing an article describing the nature of the trial and the offenses involved. Several of the jurors were exposed to the article either by reading it or having other jurors mention it in their presence. All jurors on that panel were examined for possible disqualification. With the exception of one who admitted to probable influence (and was excused), the remaining jurors maintained their impartiality and the absence of any influence by the article or a mention of it in their presence.

A party to a law suit has no vested interest in having any particular juror to serve; he is entitled only to a legal and impartial jury. grasham V. southeRn rY. co., 111 Ga.app. 158, 161, 141 S.E.2d 189; Hill v. Hospital Authority, 137 Ga.App. 633, 636, 224 S.E.2d 739. The test as to whether unfavorable newspaper publicity has so prejudiced a case against one accused of a crime that a fair trial cannot be had is whether the jurors summoned to try the case have formed fixed opinions as to the guilt or innocence of the accused from reading such unfavorable newspaper publicity. The transcript in this case affirmatively reflects that these appellants were afforded all the law guarantees, namely, fair and impartial jurors. The rights of accused persons can be protected, and were in this case, through their right of challenge, both for cause and peremptory based upon full disclosure in the voir dire examination. Dutton v. State, 228 Ga. 850, 852, 188 S.E.2d 794. The relevant portions of the voir dire that were transcribed show without dispute that the jurors selected to try the appellants were perfectly impartial between them and the state. Krist v. Caldwell, 230 Ga. 536, 537, 198 S.E.2d 161. This enumeration is likewise without merit.

4. Appellants have voiced as enumeration of error the wording of the indictment on aggravated battery and the charge of the court thereon. The indictment alleged appellants assaulted a victim by shooting her in the head with a shotgun and thereby depriving her of an eye. In substance, their complaint is that an 'eye' is not an appendage to the body and therefore does not fall within the contemplation of the statute proscribing aggravated battery. From this position they assert that they were not adequately informed as to the nature of the indictment and the trial court erred in charging the jury that the eye was a member of the body.

Ga.L. 1968, pp. 1249, 1281 (Code Ann. § 26-1305) defines the offense of aggravated battery. Under the committee notes following Chapter 26-13 under § 26-1305, Aggravated Battery, it is stated that the section is designed to replace the former law on mayhem. Former Code § 26-1205 delineated as amyhem the putting out of both eyes or the one remaining; former Code § 26-1204 delineated as mayhem the putting out of one eye. Inasmuch as the putting out of an eye indisputably constituted an offense of mayhem, it follows that an established offense of mayhem likewise constitutes an aggravated battery, the present offense standing in place of mayhem. This enumeration is without merit.

5. Appellants each complain in an enumeration of error that the trial court erred in allowing the prosecutor to ask appellant Dorris why he had not summoned as a witness a police officer to whom Dorris allegedly had given an innocent explanation for the firing of the shotgun which was used in the offenses charged. The enumeration was also extended to the argument of the prosecutor in referring to this fact. The basis of this complaint is that the question and argument amount to a comment on the right of the appellants to remain silent.

The state certainly was entitled to show that the testimony given by Dorris might be of recent fabrication, and it could use the absence of supportive and corroborative testimony as a matter of impeachment. In a trial of a criminal case in which the accused...

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  • Graham v. State, 58828
    • United States
    • United States Court of Appeals (Georgia)
    • April 10, 1980
    ...this requirement." In two opinions this court has espoused the view that the voir dire need not be transcribed. In Watts v. State, 141 Ga.App. 127(1), 232 S.E.2d 590, we stated: "This case did not authorize the imposition of the death sentence, consequently there was no requirement to provi......
  • Howell v. State, 60442
    • United States
    • United States Court of Appeals (Georgia)
    • January 30, 1981
    ...nor would (they) lessen his criminal liability.' Carter v. State, 237 Ga. (617, 619, 229 S.E.2d 411 (1976)); Watts v. State, 141 Ga.App. 127, 128(2), 232 S.E.2d 590 (1977))." Pless v. State, 142 Ga.App. 594, 596-597, 236 S.E.2d 842 (1977). Therefore, Enumerations No. 1, 2 and 9 are without ......
  • Pless v. State, 53839
    • United States
    • United States Court of Appeals (Georgia)
    • June 1, 1977
    ...nor would (they) lessen his criminal liability." Carter v. State, 237 Ga. at 619, 229 S.E.2d at 414, supra; Watts v. State, 141 Ga.App. 127, 128(2), 232 S.E.2d 590. 3. Counsel for the defendant made a motion to suppress two statements made by the defendant to law enforcement authorities. Th......
  • Hufstetler v. State, 67571
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    • United States Court of Appeals (Georgia)
    • May 11, 1984
    ...87, 83 S.Ct. 1194, 1196, 10 L.Ed.2d 215 (1963). See generally Hines v. State, 249 Ga. 257(1), 290 S.E.2d 911 (1982); Watts v. State, 141 Ga.App. 127(2), 232 S.E.2d 590, cert. den. sub nom. Dorris v. Georgia, 434 U.S. 925, 98 S.Ct. 405, 54 L.Ed.2d 283 (1977). Therefore, the trial court did n......
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