Whitlock v. State

• Court: Georgia Supreme Court
• Writing for the Court: HAWES
• Citation: Whitlock v. State, 230 Ga. 700, 198 S.E.2d 865 (Ga. 1973)
• Decision Date: 21 June 1973
• Docket Number: No. 27823,27823
• Parties: Henry WHITLOCK v. The STATE.

Page 865

198 S.E.2d 865

230 Ga. 700

Henry WHITLOCK v. The STATE.

No. 27823.

Supreme Court of Georgia.

June 21, 1973.

Garland & Garland, Reuben A. Garland, Atlanta, for appellant.

Richard Bell, Dist. Atty., Edward E. Carriere, Jr., Decatur, Arthur K. Bolton, Atty. Gen., Courtney Wilder Stanton, Dorothy T. Beasley, Daniel I. MacIntyre, Asst. Attys. Gen., Harold N. Hill, Jr., Deputy Asst. Atty. Gen., Atlanta, for appellee.

Syllabus Opinion by the Court

HAWES, Justice.

The factual circumstances leading up to the apprehension and arrest of the appellant, Henry Whitlock, for the murder of the Decatur, Georgia, police officer, Billy Cowart, have been substantially reported by the Court of Appeals in its opinion. Whitlock v. State, 124 Ga.App. 599, 185 S.E.2d 90 (1971). Reference is made to the prior proceedings before that court in the disposition of appellant's interlocutory appeals involving the denial of pretrial suppression and discovery motions, some of which have been placed in issue before this court. Appellant was convicted of murder and sentenced to death by electrocution. He now appeals from these judgments and from the denial of his motion for new trial.

1. During the course of the trial the juror, Mr. E. P. Wilson, under the rule of sequestration, was allowed to leave the company of his fellow jurors and return with the bailiff to a restaurant where he had been previously fed and to secure a topcoat left there by inadvertence. The juror and bailiff afterward stopped at a service station some blocks away and procured a pack of cigarettes. Following this incident of Sunday, February 13, 1972, the trial court, state and defense counsel questioned the juror and plaintiff, who were placed under oath, to ascertain if the alleged improper conduct might be grounds for the grant of appellant's motion for mistrial. Both bailiff and juror testified that they had been together at all times during the separation from the jury and had not discussed the subject matter of the case being tried. Their testimony indicated the juror Wilson had not conversed with any other persons concerning the case nor had overheard any conversations of others in this respect excepting that of a bystander commenting on the presence of the juror with that of the bailiff. It was upon this showing the mistrial motion was denied.

It is the duty of the bailiff under his oath when juries have been sequestered to insure at all times the integrity of their isolation and to prevent any untoward influence upon them which may influence their decision and degrade an accused's constitutional right to a fair and impartial trial. Whenever the union and isolation of the jury have been broken, there arises a legal presumption that the defendant has been injured, and 'it (is) incumbent upon the state to have rebutted that legal presumption, not only by evidence that the juror did not speak to anyone himself, nor did anyone speak to him about the case, but that he did not hear anyone . . . express any opinion in relation to the Daniel v. State, 56 Ga. 653, 655 (1876).

The appellant argues before this court that the state has not carried its burden of rebutting the presumption of harm, citing in support our old cases, Smith v. State, 122 Ga. 154, 50 S.E. 62 (1904); Obear v. Gray, 68 Ga. 182 (1881), and others. These cases, as the state has pointed out on appeal, involve instances in which the juror separation was unaccompanied by the presence of a bailiff or officer of the court and where the potential influence upon the juror of outside conversations could not be determined with any degree of certainty. The state could not rely on conjecture in rebutting the inference of harm to the accused. Cp. Suple v. State, 133 Ga. 601, 66 S.E. 919 (1909).

The situations prevailing in the earlier cases do not obtain in the case at hand. Here, every moment of the juror separation was accounted for, and there was established without contradiction that the offending juror neither spoke with anyone concerning the case nor overheard anyone discussing it. This was sufficient to overcome the presumption of harm and to remove the incident as ground for a mistrial.

2. The appellant's enumerations of error numbers four through nine and twelve and thirteen have been previously disposed of upon interlocutory appeal to the Court of Appeals in Whitlock v. State, 124 Ga.App. 599, 185 S.E.2d 90, supra. The adjudication of these issues involving the denial of various of appellant's pretrial suppression and discovery motions constitutes for purposes of direct appeal a final determination in the case, and in the absence of an application for review by this court by way of the writ of certiorari may not be brought into question in future appellate proceedings. See Code § 110-501. See, also, Code Ann. § 50-127 for procedures on collateral attack.

3. The Court of Appeals, however, in its opinion, specifically declined to decide on the merits various other pretrial discovery motions of appellant in the absence of a certificate of review, and these are now properly before this court. In these motions, there was sought from the prosecution discovery of the following: (1) copies of reports and examinations made by the state with respect to fingerprints found on the murder weapon; and (2) inspection of reports of ballistics tests conducted on the murder weapon. Each of these motions was denied by the trial court and none of the reports was introduced in evidence by the state upon the trial. (3) Appellant also moved the trial court to allow a privately-obtained ballistics expert to examine the murder weapon and the bullet removed from the victim for purposes of comparison tests on behalf of the defense. This the trial court granted; however, when appellant proved unready and unable to provide such expert at the time appointed for the tests, the order granting the inspection was revoked and further discovery in this regard denied. (4) Finally, appellant sought by way of discovery motion the addresses of the witnesses the prosecution intended to call on behalf of the state. This motion was also denied by the trial court.

We need not cite here all the many cases before this court in which we have held criminal discovery on behalf of the defendant may not be compelled. There is no state law existing which would allow the defendant as a matter of right to discover from a district attorney or other prosecuting officer of the state evidence, documentary or otherwise, for use by him or his counsel before trial. Bryan v. State, 224 Ga. 389, 162...