Welch v. State

• Decision Date: 28 September 1976
• Docket Number: No. 31374,31374
• Citation: 237 Ga. 665,229 S.E.2d 390
• Parties: Lonnie WELCH et al. v. The STATE.
• Court: Georgia Supreme Court

Page 390

229 S.E.2d 390

237 Ga. 665

Lonnie WELCH et al. v. The STATE.

No. 31374.

Supreme Court of Georgia.

Sept. 28, 1976.

Rehearing Denied Oct. 5, 1976.

Gilmore, Waddell & Phillips, Thomas J. Phillips, Jr., Robert M. Boulineau, Peugh & Bradley, James E. Peugh, Milledgeville, for appellants.

Joseph H. Briley, Dist. Atty., Gray, Arthur K. Bolton, Atty. Gen., Harrison Kohler, Staff Asst. Atty. Gen., Atlanta, for appellee.

HALL, Justice.

Lonnie Welch, Walter Swain and Ralph Harris were jointly indicted, tried and convicted for kidnapping, rape and aggravated sodomy. Each received three consecutive life sentences.

The State's evidence consisted of the testimony of the victim, alleged oral confessions by two of the defendants, the results of law enforcement investigations, and the results of certain tests conducted by the State Crime Lab on evidence found at the Swain residence and inside Welch's automobile. The defense relied primarily on the testimony of all three defendants that the sexual acts were consensual, that none of the defendants made any confessions and that the two searches were illegal.

The victim testified that she was driving from Milledgeville to College Park in the early morning hours of August 4, 1974. After she passed through Eatonton her car overheated, so she pulled over and parked beneath the lighted entrance to Rock Eagle Park to wait until the car cooled off. She locked the car doors and had just put her head down on the seat when she heard a car pull up behind her. She looked out and saw a blue Volkswagen with cut fender skirts. When she saw a black man approaching, she started the car and put it into gear in an attempt to get away. Her car jumped forward, the door on the driver's side flung open, the car spun around and finally wrecked. When the door opened the man grabbed her. He then proceeded to hit her in the stomach, pulled her from the car and dragged her by the hair to the Volkswagen. In the process her dress was torn and her belt ripped off. She was shoved into the car where two other black men waited and was again hit in the stomach and physically abused; a pistol was also shoved into her mouth.

She was taken to defendant Swain's house. Her eyes were covered with a temple-to-temple tape blindfold, but she asserted that the tape was loose and therefore she was able to see her assailants and the surroundings despite the tape. Once in the house the prosecutrix was told at gunpoint to take off all her clothes. She did what she was told, fearing for her life. The three defendants then proceeded to rape her repeatedly, individually and as a group. These actions consisted of normal intercourse, anal intercourse, masturbation, and oral sex, all against her will. Later defendants shoved a broom handle and a beer bottle into her vagina. After defendants had sexually abused her, they placed a pistol on her stomach and ordered her to shoot herself. In order to end the torture, she took the pistol, placed it against her heart and pulled the trigger. The hammer clicked on an empty chamber, and defendants laughed uproariously. During this time the defendants inquired if her husband, parents or roommate would be willing to pay a ransom.

The defendants then walked the naked prosecutrix back to the car. They drove her to the edge of a creek, asked her if she could swim (she said yes) and shoved her down the rocky creek bank. The victim crawled up the bank and went to a nearby house for help. The residents found her in a naked, disheveled and very upset state; she was taken to a hospital where she was treated and released. While she was at the hospital she told her story to law enforcement personnel. She related a detailed description of the automobile, the house, and her abductors. of the automobile, the house, and the prosecutrix at the park entrance, outside her car, waving her arms in an apparent attempt to flag someone down. They stopped to help her start her car, but were unable to, so offered to take her back to Eatonton. On the way the prosecutrix and one of the defendants decided they wanted to smoke some marijuana. Since Welch didn't want them smoking in his car, they decided to go to Swain's house. When they arrived they talked, listened to the radio, danced, and smoked marijuana. Later, the prosecutrix and defendant Swain went into the bedroom and had consensual sex. Welch and Harris then had sex with her, followed by some oral sex acts and group sex, all consensual. Swain and the prosecutrix exchanged souvenirs. She gave him a hair ornament and he gave her a ruby heart necklace.

As morning approached, the four got back in the car and rode around. After awhile she asked Welch to stop the car so she could go to the bathroom. For some unexplained reason, she suddenly ran off down a fishing trail into the woods near Crooked Creek. The defendants attempted to find her, but could not so they went home.

At the hospital the prosecutrix was examined by a physician who found several bruises on her body, abrasions and bruises on her left shoulder, a laceration on her neck, and a bruise on her left temple. Her vagina was red and contained sperm. The photos in the record, taken at the hospital, confirmed she was badly bruised.

When officers examined the scene they found her abandoned, wrecked automobile, and a belt and belt loop on the ground near by. In the car were a pair of shoes, a pocketbook, and a loaded pistol. The lock on the driver's side was found to be defective.

Later that day the prosecutrix saw and identified the Volkswagen. A tag check indicated it belonged to Bill Rice, an attorney. Rice stated that defendant Welch was an employee of his and had possession of the automobile. Rice signed a consent to search the automobile. Subsequently, Welch was stopped in the subject automobile. At the time he was stopped there were two deputies, a state trooper, a GBI agent, two State Crime Lab experts, and an assistant district attorney in the immediate vicinity. Welch was read his rights regarding the consent to search the automobile and was told that Mr. Rice had given his consent. Welch then signed a consent-to-search form. Welch was taken to the Putnam County jail in the sheriff's car. Welch's automobile was searched; after some long blond hair was found therein, Welch was placed under arrest and given his Miranda warnings.

The GBI agent in charge testified that while Welch would never sign a waiver of his rights he did voluntarily confess orally to the crime, implicating defendants Harris and Swain as well as himself. Welch testified that while he did talk to the agent, he never confessed to anything; also that he had requested a lawyer.

Defendant Harris turned himself in several days later. The GBI agent in charge testified that Harris was given his Miranda warnings and that while he, too, refused to sign any waiver, he did voluntarily confess orally to the crime, implicating Welch and Swain as well. Harris testified that he never confessed; he also stated that he had asked for a lawyer. Harris could not read or write.

Swain was the last defendant arrested. He never confessed to any participation in the crime. Swain did, however, consent to a search of his house. Officers found hairs the same color as the prosecutrix's; upon examination they were shown to have the same common origin as well. Seminal fluid was found both on a bedspread and on a washcloth. Her hair clasp was found in the bottom of a chair in the living room. A beer bottle and broom were also found, although neither tested positive for seminal fluid.

At the trial the oral confessions allegedly made by Welch and Harris were read by the GBI agent to the jury, and upon timely motion the name of defendant Swain was deleted therefrom.

1. Appellants contend the trial court erred in denying their motion for change of venue on the grounds of prejudicial pre-trial publicity in local newspapers and alleged threats against one of the defendants while in jail. Code Ann. § 27-1201.

The test as to whether newspaper publicity has no prejudiced a case that an accused cannot receive a fair trial is whether the jurors summoned to try the case have formed fixed opinions as to guilt or innocence of the accused from reading such newspaper articles. Krist v. Caldwell, 230 Ga. 536, 537, 198 S.E.2d 161 (1973). The newspaper articles introduced were merely factual and not inflammatory. Appellants failed to produce evidence that the members of the traverse jury had fixed opinions as to appellants' guilt based on those newspaper articles. See Coleman v. State, 237 Ga. 84, 226 S.E.2d 911 (1976); Dobbs v. State, 236 Ga. 427, 429, 224 S.E.2d 3 (1976). The court properly denied a change of venue based on adverse pre-trial publicity.

Appellant Welch's allegation of a three-week-old threat was not sufficient to show that there was danger of violence being committed on appellants, and the trial court did not abuse its discretion in denying the change of venue based on these threats.

The decision to grant a change of venue motion lies within the discretion of the trial court and will not be reversed on appeal absent an abuse of that discretion. Allen v. State, 235 Ga. 709, 713, 221 S.E.2d 405 (1975); Jarrell v. State, 234 Ga. 410, 415, 216 S.E.2d 258 (1975). The prospective jurors passed the test of impartiality; there was no error in overruling the motion.

2. We find no error by the trial court in overruling defendants' motion for continuance and renewed motion for continuance. The case was originally scheduled for trial on October 1. Appellants requested a continuance until the December Term or, in the alternative, for a week to allow them to prepare for trial. All three defense counsel were appointed. After these appointments two of the defendants refused to talk to their appointed counsel until ten days prior to trial, alleging that they had retained counsel. Appellants asserted that to deny continuance would deny these...