Wingfield v. State
| Decision Date | 06 September 1973 |
| Docket Number | No. 27896,27896 |
| Citation | 231 Ga. 92,200 S.E.2d 708 |
| Parties | Paul L. WINGFIELD v. The STATE. |
| Court | Georgia Supreme Court |
Syllabus by the Court
1. There was sufficient evidence to support the count of rape and the two counts of aggravated assault (assault with intent to rape).
2. The trial court did not err in qualifying the jurors as to capital punishment.
3, 4. Nor did it err in refusing to grant a mistrial because of remarks made by state's counsel in his opening statement.
5. No error took place in denying a mistrial on account of state counsel's questioning a witness.
6. It was not error to refuse a mistrial as the result of a colloquy involving state's counsel.
7. The trial court properly allowed in evidence a portion of an exhibit.
8. Refusal to grant a mistrial because of testimony of one of the victims as to appellant being held on another charge was not error.
9. Allowance of testimony as to a telephone call made by one of the victims was not error.
10, 11. The charges of the court were not erroneous for any reason assigned.
12. Denial of the motion to quash the indictment was proper.
Guy B. Scott, Jr., Athens, for appellant.
Harry N. Gordon, Dist. Atty., Athens, Ga., Arthur K. Bolton, Atty. Gen., Courtney Wilder Stanton, Asst. Atty. Gen., B. Dean Grindle, Jr., Deputy Asst. Atty. Gen., Atlanta, for appellee.
This appeal is from the judgment of conviction and sentence of Paul L. Wingfield on two counts of aggravated assault and one count of rape. He was indicted by the grand jury of Clarke County, tried and found guilty there and was sentenced to five years confinement on each of the aggravated assault counts and twenty years confinement on the rape count. A motion for new trial on the general grounds was denied. The appeal presents twelve enumerations of error, which are dealt with in their original order.
1. Initially, appellant insists that the trial court erred in overruling the motion for new trial because there was insufficient evidence on each of the three counts to sustain a conviction. From our examination of the evidence we have concluded that it was sufficient. Reference to some of the salient facts should make this apparent.
As to all three counts there was some similarity in the evidence. Appellant pretended to each of his victims that he was in need of her help, and advantaged himself by entering the apartments of two and the automobile of the other. In all of them, he soon revealed his motive and forced himself upon his victim. In all a violent struggle ensued while she sought to prevent him from pulling off her clothes and raping her.
In the two aggravated assault counts the appellant failed to accomplish There is no merit in this enumeration.
his purpose. However, in the rape count he succeeded by effective penetration and there was ample evidence for the jury to have determined that this resulted from his physical blows and the female's fears for her own life as well as that of her baby, who was in the automobile during the attack. There was also sufficient corroboration of the rape victim's testimony. This included medical testimony as to the presence of sperm, her telephone call to a friend and her reporting the matter to the police. There was also ample corroboration of the two assault victims even though it was not required. See Long v. State, 84 Ga.App. 638(1b), 66 S.E.2d 837.
2. Appellant next contends that the trial court erred when in qualifying the jurors to be put upon him for the capital offense of rape it disqualifed three jurors who would under no circumstances exact the penalty of death for rape.
However, this court has repeatedly ruled that pursuant to Witherspoon v. Illinois, 391 U.S. 510, 88 S.Ct. 1770, 20 L.Ed.2d 776, jurors may be excused for cause when they respond that they would vote against imposition of a death sentence, regardless of the evidence that may be shown upon the trial. See, e.g., Henderson v. State, 227 Ga. 68(3), 179 S.E.2d 76 and cits.
Furthermore here the appellant was not sentenced to death, and therefore has no standing to complain of this feature.
3. Appellant also insists that the trial court erred in refusing to grant a mistrial because of statements made by state's counsel that 'The D. A.'s office got into the case because of Judge Barrow,' and other related statements which gave the jury the impression that the prosecution had been initiated by the trial judge. He urges that the opening statement was highly prejudicial, and although all of it was not taken down by the court reporter, that the prejudicial part was transcribed.
The only portion of the statement of state's counsel appearing in the transcript and thus relied upon for this motion is '. . . after the district attorney's office had been asked by Judge Barrow . . .'
Immediately the following colloquy took place.
Appellant's counsel then moved for a mistrial.
Further colloquy ensued in which state's counsel sought to justify the statement as alluding to a request by the judge to investigate an unrelated incident which led to the development of the instant case; and in which appellant's counsel condemned it as prejudicial by seeking to make the judge a partisan.
Thereupon the court denied the motion for mistrial.
From what transpired in the presence of the jury, as shown above, we do not regard the language relied upon as requiring a mistrial. Just what the district attorney's office had been specifically asked to do by Judge Barrow was not shown. However, from what state's counsel said in the colloquy in the presence of the jury, he expected to prove that the unrelated investigation was 'a part of the motive and conduct for (the district attorney's) involvement in this case.' Therefore, we find nothing here that was improper so as to prejudice the jury.
4. The appellant enumerates as error the remarks of the state's counsel in his opening statement to the jury referring to the appellant as 'this animal,' and then also saying 'Your Honor, I think I am completely within my rights in my opening statement.' The appellant avers in substance that this influenced the minds of the jurors against him; that he was not an animal simply because he was a member of the black race and accused of rape and two aggravated assaults; and that the grant of the motion for mistrial was required. He maintains that the state's counsel was not 'chastized in any way.'
However, according to the transcript, the trial judge, after overruling the motion for mistrial, cautioned the jury to He also stated to the state's counsel: Thereupon that counsel stated,
Under the foregoing circumstances denial of the motion for mistrial was not erroneous. See Miller v. State, 226 Ga. 730(5), 177 S.E.2d 253; Code § 81-1009.
5. Another enumeration complains that the trial court should have granted appellant's motion for mistrial when state's counsel, in questioning an investigator for the district attorney, asked the following question and received the following answer: Thereupon appellant made a motion for mistrial, urging that the state was attempting to bring the defendant's character into evidence, and that 'Said question and answer and the related conversation found on (T-9 and 10) reflect certainly that the defendant's character was injected into the case.'
We cannot agree.
From an examination of the transcript it is clear that the matter complained of did not relate to the appellant. The state's counsel only desired to ascertain how this witness became involved in this case, and his response provided the information sought. This did not place the appellant's character in evidence.
6. The appellant, in this same connection takes the position that the trial court erred in refusing to grant a mistrial following a colloquy involving the state's counsel in which the court instructed the jury that they should consider any testimony as to a conversation between the trial judge and the investigator solely to explain his motive and conduct in taking any action in this case. Appellant's position is that this injected his character in evidence and also indicated that the judge initiated the prosecution now under review.
This position is not valid.
The transcript clearly shows that the judge received a complaint on an unrelated matter and referred it to the investigator 'to look into.' The appellant's name was not mentioned in this and he was not connected in any way.
7. It is also claimed by appellant that the trial court committed error in allowing in evidence a portion of an exhibit. The appellant enumerates that reading the portion to the jury injected his character into evidence and was an expression of judicial opinion by the judge that there was at least reason to suspect him of the crimes alleged to have been committed.
The state's counsel stated outside the presence of the jury that certain phrases would be omitted. The portion read was...
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