White v. State
| Decision Date | 27 November 1985 |
| Docket Number | No. 42090,42090 |
| Citation | 255 Ga. 210,336 S.E.2d 777 |
| Parties | WHITE v. The STATE. |
| Court | Georgia Supreme Court |
Roland R. Castellanos, Robert V. Shurtz, Marietta, for Mildred Ioane white.
Thomas J. Charron, Dist. Atty., Debra H. Bernes, Asst. Dist. Atty., Marietta, Michael J. Bowers, Atty. Gen., J. Michael Davis, Staff Asst. Atty. Gen., Atlanta, for the State.
The appellant, Mildred Ioane White, and her son James Edward "Bo" Flynn were indicted for the murder and armed robbery of Hiram Nathan Wilson. A Cobb County jury found them guilty and they each received two life sentences. Her motion for new trial was denied, and she filed her appeal. We affirm. 1
The Cobb County Fire Department answered a call involving a burning vehicle at approximately 4:30 a.m. on April 1, 1977. Firemen found a body, burned beyond recognition, in the front seat of the vehicle. The investigation showed that gasoline was used to start the fire. Papers in the vehicle bore the name of the victim, Hiram Wilson, but there was no wallet or identification on the body. Family members identified the vehicle as belonging to Wilson, and later his identity was confirmed through dental records. There was testimony that one day before his death, the victim had approximately $10,000 in cash in an envelope, and that earlier in the week he had been seen flashing large amounts of money. He allowed Flynn to count his money and he gave him a hundred dollar bill to purchase a package of cigarettes. The medical testimony showed that the victim had been shot once in the head with a .22 caliber weapon, and that the path of the bullet was consistent with someone shooting him from outside his vehicle while he was sitting in the vehicle. The medical testimony also indicated that the victim was in the last phases of dying as the vehicle burned.
The appellant was questioned on April 1, 2, and 3, 1977. Flynn and a co-conspirator, Gene Huddleston, fled the state at approximately 5:30 a.m. on April 1, 1977, but they were later captured in Texas and returned to Georgia for questioning. The appellant was arrested on April 13, 1977, but she was not indicted. Sometime in 1982, Huddleston, who was serving time in an Indiana prison on charges unrelated to the victim's death, contacted the Cobb County District Attorney with information regarding the crime. Huddleston was granted immunity for his testimony, and the appellant and Flynn were indicted in 1983. At the trial both the appellant and Flynn denied any involvement in the shooting, robbery, or the burning of the vehicle and the victim.
1. The appellant asserts the general grounds in her first three enumerations of error and contends that at the most the evidence showed that she, Flynn, and Huddleston conspired to rob the victim and that there was no conspiracy to murder him.
" 'All of the participants in a plan to rob are criminally responsible for the acts of each, committed in the execution of the plan, and which may be said to be a probable consequence of the unlawful design, even though the particular act may not have actually been a part of the plan.' " Carter v. State, 252 Ga. 502, 503, 315 S.E.2d 646 (1984) and cit. Although there was evidence that the original conspiracy may have been limited to robbery, the jury heard testimony that Flynn had said that he intended to rob the victim and kill him if necessary. Huddleston testified that during the day, Flynn had clipped some .22 caliber rifle bullets so that they would fit into a pistol, and that night as he and Flynn were waiting for the appellant to bring the victim home so that they could rob him, Flynn syphoned gasoline into a container. Huddleston testified that he fell asleep while waiting and was awakened by the appellant yelling When he got to the scene he saw Flynn standing outside of the victim's car. He saw a flash, heard a shot, and saw the victim slump over the steering wheel. The victim was breathing when Huddleston held the vehicle's interior light button so that the neighbors could not see the appellant and Flynn remove the victim's rings, watch and wallet. Flynn then pulled the victim over to the passenger side of the vehicle and drove the vehicle to the spot where it was found burning. The appellant and Huddleston followed in the appellant's vehicle and they all went to the appellant's mother's home where the appellant took approximately $900 as her share of the approximately $2,400 they removed from the victim's wallet. Flynn and Huddleston then fled the state. The evidence presented at trial was sufficient to authorize a rational trier of fact to find that the appellant was guilty beyond a reasonable doubt of murder and armed robbery. Jackson v. Virginia, 443 U.S. 307, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979).
2. The appellant asserts that the court erred in admitting three out-of-court statements that she contends were not freely and voluntarily made.
Prior to the trial, the trial judge conducted a lengthy Jackson-Denno hearing to determine whether the statements the appellant made were freely and voluntarily made. The state produced three signed Miranda and waiver of rights forms along with the three transcribed statements. The appellant admitted that she signed the Miranda and waiver of rights form prior to questioning, but she asserted that her rights had not been explained to her, that she was in custody during the interviews, and that the police used trickery and coercion to obtain her statements. The police officers testified that she was given all of her rights, that she seemed to understand them, that she was not under arrest, that she was not in custody, and that she was free to leave when she wished. The third statement was given at her request, she read the transcript, made changes in it, initialed each page and signed it. The trial judge resolved the factual and credibility issues in favor of the police and held that the statements were admissible, Lego v. Twomey, 404 U.S. 477, 480, 92 S.Ct. 619, 622, 30 L.Ed.2d 618 (1971), and his "findings as to factual determinations and credibility relating to the admissibility ... will be upheld on appeal [unless they are clearly erroneous]." Spence v. State, 252 Ga. 338, 341, 313 S.E.2d 475 (1984). After a review of the Jackson-Denno transcript, in light of all the circumstances surrounding the appellant's statement, we find that there was sufficient evidence to support the trial court's decision.
3. The appellant asserts that the trial court erred in admitting transcripts of the appellant's tape-recorded statements in violation of the best evidence and hearsay rules of evidence, and by allowing the district attorney to take part in reading them into evidence. We find no error. These objections, relating to reasons the appellant contends the evidence was inadmissible, were not asserted in the trial court and we will not consider them for the first time on appeal. Brooker v. State, 164 Ga.App. 775, 778, 298 S.E.2d 48 (1982).
4. The appellant asserts that her due process rights were violated by the prosecutions loss or destruction of the tapes in that it denied her exculpatory or mitigating evidence under Brady v. Maryland, 373 U.S. 83, 83 S.Ct. 1194, 10 L.Ed.2d 215 (1963).
Baker v. State, 245 Ga. 657, 661, 266 S.E.2d 477 (1980); Gilreath v. State, 247 Ga. 814, 827, 279 S.E.2d 650 (1981), cert. denied, 456 U.S. 984, 102 S.Ct. 2258, 72 L.Ed.2d 862 (1982).
5. The appellant asserts that the trial court erred in denying her motion to dismiss her indictment as two public officials were serving on the Grand Jury that indicted her.
We held in Ingram v. State, 253 Ga. 622, 625, 323 S.E.2d 801 (1984), that Mack Henderson did not hold an elective office and that he was not incompetent to serve as a grand juror. Likewise, Melodie Clayton who was appointed by the Mayor with City Council approval was not an elected official as defined by Ingram, supra; thus she was not incompetent to serve.
6. The appellant asserts that the court erred in denying her motion for a mistrial after a police officer indicated that the appellant had taken a polygraph examination.
"[T]he mere fact that the jury is apprised that a lie detector test was taken is not necessarily prejudicial if no inference as to result is raised...." Stack v. Stack, 234 Ga. 19, 23, 214 S.E.2d 514 (1975). (Emphasis in original.) No inference as to the result was raised.
7. The appellant asserts...
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