Williams v. State
Decision Date | 20 December 1978 |
Docket Number | No. 34034,34034 |
Citation | 251 S.E.2d 254,242 Ga. 757 |
Parties | WILLIAMS v. The STATE. |
Court | Georgia Supreme Court |
Powell & Snelling, Richard L. Powell, Augusta, for appellant.
Richard E. Allen, Dist. Atty., Stephen E. Curry, Asst. Dist. Atty., Arthur K. Bolton, Atty. Gen., Nicholas G. Dumich, Staff Asst. Atty. Gen., for appellee.
Walter W. Williams was convicted of murder and armed robbery and was given two life sentences to run consecutively.
Williams, two other males, and a female were together on the night of the murder. The female called the victim to drive them home. Williams first suggested that the group knock the victim unconscious and take his automobile. He later suggested shooting the victim. The victim arrived, the group got into his automobile, and he was directed by Williams to take them along the Augusta Canal until they came to an isolated spot where he was asked by the female to stop the car. The two males and the female got out of the automobile to relieve themselves. At this point Williams pulled a gun, ordered the victim out of the automobile, shot him three times, kicked him in the head eight to ten times to make sure he was dead, took his automobile keys and wallet, and ordered the two male companions to put the body into the trunk. The four then drove further up the canal, stopped, threw the body into the canal and left the scene, taking the victim's wallet and his automobile. All four were apprehended three days later.
1. Appellant objected to one of his co-defendants being allowed to testify because his name was not on the list of witnesses.
The original list of witnesses and the first supplemental list contained the name of this witness. Thereafter, appellant was furnished with three more supplemental lists which did not contain the name of this witness.
In Hicks v. State, 232 Ga. 393, 399, 207 S.E.2d 30, 35 (1974), this court held that the purpose of Code Ann. § 27-1403 was The list of witnesses to which the cases refer is not a single piece of paper bearing the names of all witnesses. Hicks v. State, supra; Pryor v. State, 238 Ga. 698, 707(8), 234 S.E.2d 918 (1977). The requirement of the statute is one of substance rather than form. When the name of the witness is included on any list given to defense counsel a reasonable time before the trial, the statute is satisfied inasmuch as the defendant has had an opportunity to interview the witness before trial. A different result is not called for unless it has been made to appear on the record that a witness whose name appeared on an early list but who was dropped from a later list was offered at trial contrary to the prosecution's representation to the defense that the witness' testimony would not be offered during trial. The transcript supports the decision of the trial court to admit the co-defendant's testimony. Hence, the decision of the trial court will not be disturbed on appeal. Furthermore, since the witness in question was a co-defendant, defense counsel has had an opportunity to interview him at any time since the commitment hearing. There is no merit in this enumeration of error.
2. Williams contends in his second enumeration of error that the trial court should have granted his motion for mistrial because his character impermissibly was placed into evidence. Defense counsel was cross examining a prosecution witness, and asked, At this point defense counsel interrupted the witness and made a motion for mistrial on the ground that appellant's character had been put in issue. After hearing argument of counsel for the prosecution and the defense, the trial court overruled the motion.
The answer of the witness falls short of placing Williams' character into evidence. Creamer v. State, 229 Ga. 704, 708, 194 S.E.2d 73 (1972); Woodward v. State, 234 Ga. 901(2), 218 S.E.2d 629 (1975); Fleming v. State, 236 Ga. 434, 439, 224 S.E.2d 15 (1976); and Ogles v. State, 238 Ga. 716, 235 S.E.2d 384 (1977). There is no merit in this enumeration of error.
3. The third enumeration of error contends the trial court erred in allowing the introduction of opinion evidence as to appellant's understanding of his rights when his rights were read to him by a police officer. Appellant had pled insanity at the time of commission of the acts charged in the indictment. The testimony was admitted, over objection that it was opinion evidence, to show the mental awareness of appellant at the time of his arrest. The police officer, who was a lay witness, was required to give facts upon which he based his opinion. Graham v. State, 236 Ga. 378, 383, 223 S.E.2d 803 (1976). There was no error in allowing the testimony into evidence as against the objection that it was opinion evidence.
Pretermitting the question of whether or not defense counsel preserved the point by proper and timely objection during the trial, this court holds that there is no merit in the assertion made in the third enumeration of error that the testimony prejudiced Williams' asserted right to remain silent. In Stone v. Estelle, 556 F.2d 1242, 1244 (5th Cir. 1977), cert. den. 434 U.S. 1019, 98 S.Ct. 742, 54 L.Ed.2d 767, a habeas corpus case where the state prosecutor questioned and argued to the jury the defendant's refusal to participate in a lineup or to make any statement, the court held: ...
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