Welch v. State
| Decision Date | 29 June 1983 |
| Docket Number | No. 39754,39754 |
| Citation | 251 Ga. 197,304 S.E.2d 391 |
| Court | Georgia Supreme Court |
| Parties | WELCH et al. v. The STATE. |
Charles S. Thornton, Lawson, Washington & Thornton, P.C., Atlanta, for Charlene M. Welch et al.
Howard T. Oliver, Jr., Sol., Gainesville, for the State.
This is a criminal case wherein appellants challenge the constitutionality of the public drunkenness statute, OCGA § 16-11-41 (Code Ann. § 26-2607), and also cite as error certain rulings and comments of the court below which they argue deprived them of a fair trial. We affirm.
In February 1982, appellants, who are husband and wife, were traveling aboard a railroad train through Georgia from New Orleans to New York. The record shows that from the time they came aboard at 8:30 a.m. in New Orleans the appellants and members of their party had been buying drinks in the lounge car. During the day they became increasingly loud and profane, and were belligerantly uncooperative when asked by the conductor to show their tickets as they neared Atlanta in the evening. Train personnel requested assistance from police and the appellants were arrested in Gainesville at about 9:00 p.m. Both resisted arrest and police had to forcibly subdue the pair to get them off the train. Appellants were charged with public drunkenness and obstruction of a police officer in the lawful discharge of his duties.
1. Appellants first enumerate the general grounds. We find that the evidence was sufficient to support the jury's verdict under the standards of Jackson v. Virginia, 443 U.S. 307, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979).
2. Appellants next assert that it was error for the trial court to charge the jury by merely reading OCGA § 16-11-41 (Code Ann. § 26-2607) to them verbatim and to refuse to clarify upon the jury's request. It is well established that the court has a duty to recharge when the jury so requests. Edwards v. State, 233 Ga. 625, 212 S.E.2d 802 (1975). The record shows that in the present case the court recharged the jury by reciting the applicable statute, although without further explanation, and made clear to them the applicable law. Unlike the cases cited by appellants, the jury here did not demonstrate confusion or misconception as to the applicable law. The record shows that upon conclusion of the recharge, the judge asked the foreman and the jury whether there were further questions. The foreman answered that he had none and no one on the jury responded. Appellants failed to object to the form of the recharge or to request amplifying instruction. Thus, there was no error in not providing such instruction.
3. Appellants enumerate as error the trial court's failure to charge as requested regarding warrantless arrest. This enumeration has no merit. The court need not give the exact language of a request to charge when the same principles are otherwise fairly given to the jury. Jackson v. State, 249 Ga. 751, 295 S.E.2d 53 (1982); Logue v. State, 155 Ga.App. 476, 271 S.E.2d 42 (1980). The court properly charged the jury as to the principles of law concerning warrantless arrest.
4. Appellants challenge OCGA § 16-11-41 (Code Ann. § 26-2607), the public drunkenness statute, as vague and overbroad both on its face and as applied. In evaluating such a challenge the U.S. Supreme Court has recently said that it would consider any limiting construction proffered by a state court. Village of Hoffman Estates v. Flipside, Hoffman Estates, 455 U.S. 489, 102 S.Ct. 1186, 71 L.Ed.2d 362 (1982). We will do the same in our review of the public drunkenness law.
We have construed OCGA § 16-11-41 (Code Ann. § 26-2607) to require that the accused not only be or appear intoxicated, but that he manifest this condition by boisterous, vulgar, loud, profane, or unbecoming language. Scarborough v. State, 231 Ga. 7, 200 S.E.2d 115 (1975). The Court of Appeals has further held that unless one of these outward manifestations or acts is present, no violation of the law has occurred. Peoples v. State, 134 Ga.App. 820, 216 S.E.2d 604 (1975).
The void-for-vagueness doctrine as interpreted by the U.S. Supreme Court "requires that a penal state statute define the criminal offense with sufficient definiteness that ordinary people can understand what conduct is prohibited and in a manner that does not encourage arbitrary and discriminatory enforcement." Kolender v. Lawson, 461 U.S. ----, ----, 103 S.Ct. 1855, 1858, 75 L.Ed.2d 903 (1983). OCGA § 16-11-41 (Code Ann. § 26-2607), as presently drafted and construed by the courts of this state, contains clear standards for determining whether the conduct of an accused is violative of its terms. See Adams v. State, 153 Ga.App. 41, 264 S.E.2d 532 (1980). It describes with sufficient particularity the acts prohibited and neither on its face nor in its application does it furnish police a tool for arbitrary encroachment upon constitutionally protected conduct. Accordingly, we find no merit in this enumeration.
5. In their fifth enumeration appellants cite as error the trial court's refusal to allow voir dire to be reopened for a certain juror who stated his occupation as "retired" during questioning of the jurors. He was then asked whether prior to his retirement he belonged to any law enforcement organizations. He answered negatively, but nonetheless was later peremptorily struck. The next day the district attorney informed defense counsel that the prospective juror had been a bailiff of the Superior Court of Hall County. There is no assertion that the district attorney had this knowledge during voir dire.
Appellants requested further voir dire of this juror and sought to establish grounds to challenge for cause. The court denied this request. Appellants assert that, where their peremptory strikes were later exhausted, they were harmed by being forced to use a peremptory strike for a juror who might have been excused for cause.
In Bradham v. State, 243 Ga. 638, 256 S.E.2d 331 (1979), cited by appellants in support of their contention, the challenged juror stated that he had three sons who were law enforcement officers in another county and he would be inclined to give more credence to a police officer's testimony than a non-police witness. The court refused to dismiss him for cause and the juror was struck peremptorily the defendant who exhausted his peremptory strikes. We conclude that Bradham is inapposite for two reasons. Defense counsel in this case had ample opportunity to question the juror, discover his status, and challenge him for cause. This was not done. The trial court thus did not refuse to excuse the juror for cause, as was the case in Bradham. Second, no authority is cited, and we know of none, for the proposition that a bailiff is presumptively unable to consider in an impartial and unbiased manner the facts and law of a case presented to him. Unlike the juror in Bradham, the prospective juror here agreed that a law enforcement officer might not always be a truthful or believable witness.
"In Georgia, control of the voir dire examination is vested in the discretion of the trial judge and will not be interfered with unless it is clearly shown that such discretion was abused." Ruffin v. State, 243 Ga. 95, 97, 252 S.E.2d 472 (1979). In the present case there was no abuse of the trial court's discretion in conducting voir dire and we find no merit in this enumeration.
6. In enumerations six and seven, appellants cite as error the trial court's denial of their motions for mistrial and new trial because of improper remarks and comments by the prosecution during opening argument and summation. This included a characterization of the appellants as "civil rights leaders," uncivilized, and people "used to civil disobedience." Appellants argue that these statements were inflammatory, improper, and highly prejudicial. The trial court appropriately instructed the jury that opening comments are not evidence and are not to be considered as such. The court also admonished and rebuked the state's attorney for these remarks.
OCGA § 17-8-75 (Code Ann. § 81-1009) commits to the judge's discretion the decision to order a mistrial where counsel has made statements of prejudicial matters not in evidence before the jury. This discretion will not be interfered with on appeal unless manifestly abused. Ladson v. State, 248 Ga. 470 (6, 7), 285 S.E.2d 508 (1981); White v. State, 159 Ga.App. 545 284 S.E.2d 76 (1981). No such abuse occurred here and these enumerations are without merit.
7. In enumerations eight and nine appellants argue that various rulings and comments of the trial court, as well as the presence of armed law officers in the courtroom, had the cumulative effect of denying them a fair trial. The record shows that attorneys for both the appellants and the state were zealous in the representation of their clients and frequently objected to evidence offered by the other and disagreed with the court's various rulings during the trial. Nevertheless, the trial was free from irrelevant or prejudicial remarks calculated to stir up racial prejudices and animosity. The cases cited by the appellants involving racially...
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