Young v. State, 28721

• Decision Date: 21 May 1974
• Docket Number: No. 28721,28721
• Citation: 206 S.E.2d 439,232 Ga. 285
• Parties: Roosevelt YOUNG v. The STATE.
• Court: Georgia Supreme Court

Page 439

206 S.E.2d 439

232 Ga. 285

Roosevelt YOUNG v. The STATE.

No. 28721.

Supreme Court of Georgia.

May 21, 1974.

Thomas S. Sunderland, Buford, Darryl R. Vandeford, Lawrenceville, for appellant.

Bryant Huff, Dist. Atty., Lawrenceville, Gary L. Davis, Dawson Jackson, Arthur K. Bolton, Atty. Gen., William F. Bartee, Jr., Asst. Atty. Gen., G. Stephen Parker, Deputy Asst. Atty. Gen., Atlanta, for appellee.

Syllabus Opinion by the Court

INGRAM, Justice.

The appellant was indicted and tried in the Superior Court of Gwinnett County on a charge of murder for the shooting of his daughter, Evona. He was found guilty and sentenced to life imprisonment. His motion for new trial was denied by the trial court and this appeal was brought for review of several enumerated trial errors.

The evidence presented by the state showed that appellant lived with his wife and four children. The appellant's daughter, Evona, had become pregnant, and on Saturday, the day before the shooting occurred, appellant, his wife and Evona visited a hospital to allow Evona to be examined by a physician. During this trip, appellant was noticeably angry because of the cost of Evona's pregnancy examination and expressed his ire both to Evona and his wife. On that evening, and continuing the following morning, appellant steadily indulged in alcoholic beverage so that by Sunday afternoon he was described as 'drunk' by police officers. At some time on Sunday, appellant told his wife and Evona to 'get out' of his house, and, in addition, told his son, Rickey, that he was going 'to kill Biddy (his wife) and Evona (daughter) before you come back again.' That afternoon while his wife was cooking in the kitchen, and while Evona was packing her clothes in preparation for leaving the residence, appellant, using his own gun, shot and killed Evona. His wife testified that appellant first pulled the trigger and the gun did not fire, whereupon he again pulled the trigger, this time sending the fatal shot along its way. She also testified that appellant was in the bedroom when the incident occurred. After Evona was dead, appellant ran from the house crying, 'I have shot my baby,' and was soon after apprehended by the police, apparently without resistance. After he had been informed of his constitutional rights, appellant repeatedly told the officers: 'I've shot my baby.' The police after a thorough search, found the killing bullet and the ballistics test indicated that it was fired from appellant's gun, which also was found in the residence.

Appellant's testimony contradicted most of the state's theory of the case. He admitted shooting his daughter, but maintained it was purely accidental and occurred while he was sitting at the kitchen table cleaning his gun. He also testified that his relations with both his deceased daughter, as well as the rest of his family, were pleasant, loving and amicable.

Appellant's first enumeration of error asserts that the trial court should have sustained his challenge to both the grand and petit jurors on the ground that negroes and persons between the ages of 18 and 21 were systematically excluded from the jury list. See Peters v. Kiff, 407 U.S. 493, 92 S.Ct. 2163, 33 L.Ed.2d 83 (1972). The record reveals that appellant voiced this objection for the first time in his motion for a new trial. The procedure in this state has long required a criminal defendant to raise a challenge to the jury lists at the time the jury is 'put upon him' or else he waives his right to object. See Williams v. State, 210 Ga. 665, 667, 82 S.E.2d 217 (1954); Hill v. Stynchcombe, 225 Ga. 122, 127, 166 S.E.2d 729 (1969). The legal policy upon which this salutary rule rests is that an accused cannot sit back and gamble upon the verdict and then, if dissatisfied, complain of the jury's selection process for the first time after he has been convicted. Appellant waited too late to complain of the jury composition in this case, and, even then, offered no evidence in support of the contention. See also Williams v. State, 232 Ga. 203, 206 S.E.2d 37.

During the trial of the case, appellant's wife testified as a witness both for the prosecution and the defense. Appellant contends that this was error as the record fails to show that his wife was informed of her right not to testify against him in a criminal proceeding as provided by Code Ann. § 38-1604. There is no merit in this argument since the privilege provided by Code Ann. § 38-1604 belongs to the spouse whose testimony is sought to be elicited, rather than the spouse who is on trial. See James v. State,223 Ga. 677, 683, 157 S.E.2d 471 (1967); and, Kellar v. State, 226 Ga. 432(1), 175 S.E.2d 654 (1970). 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, '(W)here the witness voluntarily took the stand and testified, it will be presumed that she did so pursuant to a waiver of her privilege.'

In three separate enumerations of error, appellant urges that his right to a thorough and sifting cross examination was abridged by the trial court. In one instance, appellant's counsel was cross examining appellant's wife, and asked her to relate whether she and appellant ever had disputes during their 30-year marriage. Upon objection from the prosecution, the trial judge limited the scope of the question to a reasonable period prior to the time appellant's daughter was shot. In a second instance, Detective Blannott was asked a series of questions which were designed to cast doubt on his conclusion that appellant was drunk at the time of his arrest. The trial judge, upon his own motion, directed appellant's counsel to move on as the detective had already given both his conclusion and the facts upon which it was based. These situations called for the exercise of the trial judge's discretion in limiting cross examination to relevant issues and in controlling repetitive questions. The right to a thorough cross examination is not unlimited, and we find no abuse of discretion in these rulings. See Hunsinger v. State, 225 Ga. 426, 428, 169 S.E.2d 286 (1969). In the third instance, which appellant cites as error, his counsel asked appellant's son on cross examination: 'Now, have you started receiving any money since your father got charged with this offense?' Upon objection the court asked: 'Would that be relevant to any issue in this case?' Whereupon appellant's counsel replied: 'Possibly not, your Honor . . . I thought it might have a bearing on the motive of the testimony.' The court then said: 'Well, if you can prove any motive, that would be one thing, but motive has to be in existence prior to the act, I don't think what happened this (sic) would have any bearing on this case.' Following this colloquy, appellant's counsel said: 'All right, your Honor,' and proceeded on a new line of questioning. Although appellant's attorney explained that the testimony was aimed against the witness' credibility, no offer was made to show how the testimony would be relevant to that issue, or what answer was expected to be given. The relevancy of the question was not intrinsically apparent, and appellant has failed to show how his cause was prejudiced by the exclusion of this evidence. We, therefore, find no reversible error in this circumstance. Kapplin v. Seiden, 109 Ga.App. 586(4), 137 S.E.2d 55 (1964).

During the testimony of the state's witness, Detective Blannott, there was admitted into evidence, over objection, a diagram of appellant's residence which the prosecution used to show the spacial relationships involved in the state's version of the slaying. Appellant contends on this appeal the diagram was submitted without proper foundation. We cannot agree with appellant as Detective Blannott testified from his personal knowledge that the diagram fairly and accurately represented appellant's residence.

In connection with this same diagram, the prosecution introduced as a witness Mr. Nolan Wallace, who drew the diagram after having personally measured the dimensions of the Young residence. Appellant objected to this witness on the ground that he was not on the list of state's witnesses given to appellant, and he urges this...