Page v. State

345 S.E.2d 600, 256 Ga. 191, 1986 Ga. LEXIS 763
CourtSupreme Court of Georgia
DecidedJuly 16, 1986
Docket42762
StatusPublished
Cited by15 cases

This text of 345 S.E.2d 600 (Page v. State) is published on Counsel Stack Legal Research, covering Supreme Court of Georgia primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Page v. State, 345 S.E.2d 600, 256 Ga. 191, 1986 Ga. LEXIS 763 (Ga. 1986).

Opinions

Smith, Justice.

Appellant, Jerry Homer Page, was convicted by a jury in Jackson County of two counts of murder and one count of aggravated battery. He was sentenced to death on one murder count. The case is here on direct appeal, for review under the Unified Appeal Procedure, as amended, 252 Ga. A-13 et seq., and for the review of the death sentence required by OCGA § 17-10-35.1 For reasons which follow, we affirm the convictions, but set aside the death sentence.

Appellant and his wife were in the process of getting a divorce. After a temporary hearing in which Henrietta Page was awarded custody of their two children, she left in an automobile driven by her nephew Terry Howard, accompanied by the two children and her sister Dorothy Ann Howard.

Outside of town, Terry pulled into a driveway to turn around after missing a turn. Appellant, who had followed them out of town, pulled in behind them, blocking them in, and demanded that Henrietta return his children. When she refused, appellant shot her in the head. He also shot Dorothy and Terry Howard, and then fled the scene, leaving the two small children in the car with their fatally wounded mother.

Although his jaw was fractured, Terry managed to drive to a convenience store for help. The two women died.

The evidence, which is essentially undisputed, supports the conviction on two counts of murder and one count of aggravated battery. Jackson v. Virginia, 443 U. S. 307 (99 SC 2781, 61 LE2d 560) (1979).

1. In his eighth enumeration, appellant argues that the trial court failed to instruct the jury that the state had the burden to prove criminal intent beyond a reasonable doubt. We find no error. Although the court did not charge the language of OCGA § 16-2-1 that “[a] ‘crime’ is a violation of a statute of this state in which there is a joint operation of an act or omission to act and intention or criminal negligence,” the court instructed the jury that “[t]he burden of proof is on the state to prove each element of the crime . . . beyond a reasonable doubt,” and instructed the jury fully on the essential elements of the crimes charged. See Redd v. State, 141 Ga. App. 888 (4) (234 SE2d 812) (1977).

2. Contrary to appellant’s 9th enumeration, the court did not [192]*192commit reversible error by charging the language of OCGA § 16-5-1 (b). Lamb v. Jernigan, 683 F2d 1332, 1340 (11th Cir. 1982). However, we note that the present Pattern Jury Instructions suggest charging that “malice may be implied . . .” rather than the statutory language that “malice shall be implied . . .” (Emphasis supplied.) See also Welch v. State, 254 Ga. 603 (5) (331 SE2d 573) (1985).

3. Regarding enumeration 10, we find no error in the denial of appellant’s motion to change venue, inasmuch as no juror was excused for bias, prejudice, or prior opinion. See Devier v. State, 253 Ga. 604 (4) (323 SE2d 150) (1984).

4. In his 11th enumeration, appellant complains of the denial of sequestered voir dire. We find no abuse of discretion. Sanborn v. State, 251 Ga. 169 (3) (304 SE2d 377) (1983).

5. In his 16th and 20th enumerations, appellant complains that attorney Wendy Glassbrenner erroneously was allowed to testify about statements made to her by appellant’s wife, over appellant’s objection.

Appellant first objected to Glassbrenner’s testimony on hearsay grounds as she began to testify about her initial consultation with Mrs. Page. This objection was sustained, and the examination proceeded as follows:

“Q. Don’t go into the hearsay that she gave you, but as a result of this initial interview and consultation with Mrs. Henrietta Page, what did you do then, Ms. Glassbrenner?
“A. As a result of my conversation with Mrs. Page, I determined that she needed some immediate relief in order to protect her physical safety as well as her children.
“[Appellant]: If Your Honor please, the witness is not being responsive to the question. The question was: ‘What did she do?’ Not what she thought.
“[The State]: All right, Your Honor, she was testifying as to her course of conduct, after obtaining the initial interview with Henrietta Page.
“The Court: Ladies and gentlemen, certain evidence is allowed to explain conduct of a witness, and for that purpose only; and I’m allowing this testimony to explain her conduct, and for that reason only.”

Appellant’s hearsay objection was sustained. Afterwards, the witness, in effect, testified that she had a conversation and that as a result of that conversation she made a determination regarding her future course of conduct. Since the contents of the conversation were not revealed, no hearsay was elicited.

The only other objection interposed to this line of questioning was that the answer was unresponsive. “The mere fact that the answer is unresponsive is not an objection available to the opponent. [193]*193[Cits.] The objection is only available to the questioner, who may move to strike. [Cit.]” McCormick on Evidence, § 52, p. 113 (fn. 26) (2nd ed. 1972). The court did not err by allowing the testimony over the objection that the answer was unresponsive.

6. In his 14th, 17th, 18th and 19th enumerations, appellant complains of the state’s failure to disclose certain matters.

(a) Brady v. Maryland, 373 U. S. 83 (83 SC 1194, 10 LE2d 215) (1963), was not violated by the state’s failure to disclose the report of “Dr. Terry,” since the record discloses no such person. If appellant is referring to a report by Dr. Satterfield concerning his examination and treatment of Terry Howard, appellant has not shown that there was such a report, or if there was, that it contained anything exculpatory. See Lariscey v. State, 254 Ga. 241 (1) (328 SE2d 213) (1985).

(b) We find no merit to the contention that the state erred by refusing to disclose prior convictions of any state’s witnesses, inasmuch as appellant has not shown that such convictions existed. See also Lariscey v. State, supra at 243.

(c) Nor do we find any error in the state’s failure to disclose “all items seized from defendant at the time of his arrest.” The state contends that it furnished the defense with “a copy of the GBI report . . ., scientific reports and everything that was in the state’s file that would be relevant at all.” The trial court conducted an in-camera inspection of the state’s file and found nothing exculpatory, and appellant, despite having been present at the scene of his arrest, has not suggested what items were seized from him or how they might have been exculpatory.

(d) Nor did the state violate Brady by refusing to disclose all statements made by appellant at the time of his arrest, since, apparently, appellant did not make any statements.

7.

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Bluebook (online)
345 S.E.2d 600, 256 Ga. 191, 1986 Ga. LEXIS 763, Counsel Stack Legal Research, https://law.counselstack.com/opinion/page-v-state-ga-1986.