Wilson v. State
| Decision Date | 02 March 1989 |
| Docket Number | No. 46497,46497 |
| Citation | 259 Ga. 55,376 S.E.2d 676 |
| Parties | WILSON v. The STATE. |
| Court | Georgia Supreme Court |
Robert H. Alexander III, Atlanta, for Joseph Leon Wilson.
Lewis R. Slaton, Dist. Atty., Atlanta, Rebecca A. Keel, Asst. Dist. Atty., Michael J. Bowers, Atty. Gen., Leonora Grant, Asst. Atty. Gen., for the State.
Joseph Leon Wilson appeals his conviction of the malice murder of Barney L. Ridley, for which he was sentenced to life imprisonment. 1 1 We affirm.
The evidence authorized the following findings. The appellant purchased cocaine from the 16-year-old victim on five separate occasions during the 12-hour period preceding the homicide, smoking it the first four times. The appellant, having run out of money, asked to buy the drugs on credit, which the victim refused. A struggle ensued between the two. The appellant said, "Give it to me, give it all to me." The victim pulled out his drug bag, and the appellant snatched it. During the struggle, the victim called for help, and the appellant shot him in the head, picked up the victim's money, and ran.
1. During voir dire, the trial judge, after ruling that defense counsel could not inquire about prior jury service, stated that he would give counsel a case on that, in response to defense counsel's inquiry as to whether the trial judge could produce a case in support of his ruling. Shortly thereafter, the trial judge stated, "I will be delighted to orient you on any of the law as soon as you get through with this case." The appellant now argues that these remarks were uncalled for, demeaning to counsel, and showed that the judge had become an advocate on behalf of the state. The appellant made no objection to the remark and no motion for a mistrial, hence he has waived the right to enumerate it on appeal. E.g., Seabrooks v. State, 251 Ga. 564(1), 308 S.E.2d 160 (1983). Further, even if timely objection had been made, the trial judge's statement was made in response to the appellant's objection to the court's ruling denying a voir-dire question, and was neither an expression of opinion nor a comment on the evidence. E.g., Barr v. State, 166 Ga.App. 7(3), 303 S.E.2d 132 (1983).
2. The trial court did not err in refusing to conduct an in camera inspection of the state's files to find statements of witnesses beneficial to the defense, or to order the state to furnish to the appellant the tape-recorded statements. Prior to trial, the state opened its complete files and allowed the defense to peruse them, gave the defense summaries of witnesses' statements, and offered to allow the defense to listen to the tape-recorded statements from which the summaries were transcribed. See Jarrell v. State, 234 Ga. 410, 420(4), 216 S.E.2d 258 (1975); Gonzalez v. State, 175 Ga.App. 217(2), 333 S.E.2d 132 (1985).
3. The malice-murder indictment charging that Wilson "did unlawfully and with malice aforethought, cause the death of Barney L. Ridley, a human being, by shooting him with a pistol," gave the appellant sufficient notice of the possibility that the jury would be allowed to consider a verdict of felony murder, with aggravated assault as the underlying felony. Jolley v. State, 254 Ga. 624(2), 331 S.E.2d 516 (1985).
4. The appellant contends that the prosecutor improperly commented upon his right to remain silent when he argued to the jury:
During the course of the prosecution's cross-examination of the appellant, the following dialogue ensued:
Q. It's also true that you called the police and told them that it was an accident?
A. No, I did not call the police, Sir.
Q. Did you ever tell anybody that it was an accident, that it was self-defense?
A. Well, I talked to my people about it.
Q. You told your mother?
A. Yes, I told my people about it, Sir.
Q. And those are the only people other than this jury that have heard this particular story; is that correct?
A. And I talked to my lawyer.
Q. And you told your lawyer that it was an accident?
A. I talked to my lawyer about the whole situation.
The appellant, having failed to object to the above portions of the cross-examination and closing argument or move for a mistrial, has waived his right to raise this issue on appeal. Seabrooks v. State, 251 Ga. 564, 308 S.E.2d 160, supra (1); Tucker v. State, 237 Ga. 777(1), 229 S.E.2d 617 (1976).
Furthermore, even if the appellant had objected, this enumeration is without merit. The appellant cites Doyle v. Ohio, 426 U.S. 610, 96 S.Ct. 2240, 49 L.Ed.2d 91 (1976), which proscribes the use for impeachment purposes of the silence of an accused at the time of arrest in the presence of police and after he has received Miranda warnings which advised him of his Fifth Amendment right to remain silent. However, this was not a situation in which the appellant was asked specifically why he did not respond by way of explanation when confronted with an incriminating situation after having been advised of his right to remain silent. Cf. Phillips v. State, 165 Ga.App. 235(1), 299 S.E.2d 138 (1983). Moreover, the rule in Doyle v. Ohio, supra, was narrowed in Fletcher v. Weir, 455 U.S. 603, 102 S.Ct. 1309, 71 L.Ed.2d 490 (1982), which held that a defendant can be cross-examined as to his post-arrest silence when Miranda warnings are not given. The prosecutor's comments here do not fall within the purview of either Doyle or Fletcher.
5. On direct examination, defense counsel asked the appellant, "Are you guilty of this charge?" The trial court sustained the prosecution's objection to this question. Defense counsel then asked the appellant, "Have you told the jury the truth here today?" The appellant responded, "Yes, I have told them the truth, that's what happened." The appellant contends that the trial court's sustaining of the prosecution's objection prohibited the appellant from presenting his defense and asserting his innocence while on the stand. However, the appellant asserted his innocence throughout his testimony,...
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