Wiley v. State

Decision Date06 July 1979
Docket NumberNo. 57977,57977
Citation258 S.E.2d 286,150 Ga.App. 607
PartiesWILEY v. The STATE.
CourtGeorgia Court of Appeals

Charles W. Smith, Jr., Gainesville, for appellant.

Jeff C. Wayne, Dist. Atty., for appellee.

BIRDSONG, Judge.

Roy Buddy Wiley was convicted of the crime of child molestation in that he erotically fondled his nine-year old stepdaughter's pubic area and breasts, and attempted intercourse. He was sentenced to ten years, three to serve and seven on probation. Wiley brings this appeal enumerating four alleged errors. Held :

1. In his first enumeration of error, appellant contends that it was error for the trial court to allow his wife to testify against him without first affirmatively advising her that she could not be compelled to testify against her husband.

There is no merit in this argument. The provisions of Code Ann. § 38-1604 which confer the privilege, expressly provide that the privilege belongs to the spouse whose testimony is sought to be elicited, rather than the spouse who is on trial. Kellar v. State, 226 Ga. 432(1), 175 S.E.2d 654(1); James v. State, 223 Ga. 677, 683, 157 S.E.2d 471. The policy of Code Ann. § 38-1604 is not to offer protection to the defendant, but to give regard to feelings of family harmony and promote marital unity. As stated in Kellar, supra: ". . . where the witness voluntarily took the stand and testified, it will be presumed that she did so pursuant to a waiver of her privilege." See Young v. State, 232 Ga. 285, 287, 206 S.E.2d 439.

2. In his second and third enumerations of error, appellant urges that it was error to admit admissions made by him to police officers. The first was to a polygraph operator and the second to a police officer who was transporting the appellant back to his home following the polygraph examination. The first admissions were made following a full warning of rights against self-incrimination, which the appellant admitted he understood. The second was a spontaneous, voluntary admission and not preceded by any questions by the officer to whom the admissions were directed.

As to the first, the appellant was afforded a hearing outside the presence of the jury on the question of voluntariness. Jackson v. Denno, 378 U.S. 368, 84 S.Ct. 1774, 12 L.Ed.2d 908; Schneider v. State, 130 Ga.App. 3, 202 S.E.2d 238. At that hearing the state proved voluntariness by a preponderance of the evidence (Lego v. Twomey, 404 U.S. 477, 92 S.Ct. 619, 30 L.Ed.2d 618; High v. State, 233 Ga. 153, 210 S.E.2d 673). In making this determination, the trial court considered the "totality of the circumstances" surrounding the admissions (Clewis v. Texas, 386 U.S. 707, 87 S.Ct. 1338, 18 L.Ed.2d 423; Pierce v. State, 235 Ga. 237, 219 S.E.2d 158). These findings of the trial court are not clearly in error and thus will not be disturbed. Phillips v. State, 238 Ga. 497, 498, 233 S.E.2d 758.

As to the second set of admissions, there is no merit to a claim of lack of voluntariness predicated upon the failure to give a Miranda warning where the statement given was spontaneous and unsolicited. Williams v. State, 239 Ga. 12, 14, 235 S.E.2d 504. Moreover, such a statement may be used for impeachment (one of the predicates offered by the state) and this has been the rule since 1971. Harris v. New York, 401 U.S. 222, 225, 91 S.Ct. 643, 28 L.Ed.2d 1; Hancock v. State, 131 Ga.App. 485, 487, 206 S.E.2d 104. We find no merit in either of these enumerations.

3. In his final enumeration of error, appellant complains that the trial court erred in giving an instruction...

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8 cases
  • Parker v. State
    • United States
    • Georgia Court of Appeals
    • April 21, 1982
    ...remain silent in accordance with the privileges afforded them by Code Ann. §§ 38-1604 and 38-1205(a), respectively. Wiley v. State, 150 Ga.App. 607(1), 258 S.E.2d 286 (1979). Moreover, the record affirmatively demonstrates that on two occasions prior to trial both witnesses were in fact inf......
  • LIVERY v. State
    • United States
    • Georgia Court of Appeals
    • July 9, 1998
    ...See Division 2, supra. Even without this confusion, the challenge to the jury instructions fails under Wiley v. State, 150 Ga.App. 607, 609, 258 S.E.2d 286 (1979) (regarding jury instructions based on statutes which are framed in the disjunctive, i.e., utilizing the conjunction "or"). Furth......
  • Patterson v. State, A91A1487
    • United States
    • Georgia Court of Appeals
    • January 7, 1992
    ...be made outside the presence of the jury. As to the circumstance of the spouse's voluntarily taking the stand, see Wiley v. State, 150 Ga.App. 607, 608(1), 258 S.E.2d 286. In this case, Mrs. Patterson did not voluntarily take the stand, and in the circumstances, the cause of her being force......
  • Minter v. State, 68175
    • United States
    • Georgia Court of Appeals
    • May 3, 1984
    ...154 Ga.App. 120(1), 267 S.E.2d 653 (1980); Vann v. State, 153 Ga.App. 710(2), 266 S.E.2d 349 (1980). See also Wiley v. State, 150 Ga.App. 607(3), 258 S.E.2d 286 (1979). The cases of Robinson v. State, 152 Ga.App. 296, 262 S.E.2d 577 (1979), and Hamby v. State, 76 Ga.App. 549, 46 S.E.2d 615 ......
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