Scott v. State

230 S.E.2d 857, 238 Ga. 30, 1976 Ga. LEXIS 1080

• Court: Supreme Court of Georgia
• Decided: December 1, 1976
• Docket: 31215, 31216
• Status: Published

Opinions

Per curiam.

Scott and Light appeal their convictions for rape. At trial both were represented by the same attorney. Each was sentenced to 20 years, though half of Light’s sentence was probated.

This criminal prosecution arose out of a midnight altercation at a motel in Gordon County, on August 23, 1974, involving a fight between two groups occupying adjacent rooms. One group was composed of prosecutrix, her husband, and three women friends, all of whom were staying in the same room. The other group was Scott, Light, and Scott’s woman friend. Scott and Light had been drinking, as had the prosecutrix. Prosecutrix, her husband, and two of the women in her group testified to appellants’ having approached the open door of their (prosecutrix’) room with invitations to come and have a drink. Upon being refused, appellants turned obscene and violent and attacked the Others, Scott wielding a tire tool. Prosecutrix’ group jumped out of windows, thinking she had fled also, but actually she had crawled into the báthroom and was left alone with appellants. She testified that -Scott knocked her unconscious a couple of times, and raped her while Light was present. When she returned to consciousness and found them gone, she made her way to the front of the motel and reported that she had been raped. Police had already been summoned by the others. The medical evidence was that she suffered emotional and physical trauma, a bruise above the left eye, a bruise on her jaw, and an abrasion on her ankle. The doctor found no pelvic injuries, but there was crusted blood from an unknown source in the perineal area.

The prosecution also presented at trial a document signed by Scott acknowledging his desire that he be administered a lie detector test. It recited his rights, and ‘the fact that the test was voluntary. The document had a second division at the bottom where he signed again after the test, reiterating his consent. After the document was admitted into evidence the state presented the testimony of the polygraph examiner. He testified, without objection, that he gave the examination pursuant to Scott’s agreement that the results would be admitted into evidence regardless of what it showed; but that he advised Scott before testing that he could still cancel out of that agreement and refuse the test if he desired. Scott chose to be tested. The examiner’s testimony explained the test and the chart made by Scott’s responses. He gave his conclusion that the test results were unambiguous and that Scott’s responses indicated he lied when he denied raping the prosecutrix. When the polygraph operator was asked whether defendant Light signed a lie detector consent form, defense counsel objected and the district attorney withdrew the question.

Submitted June 7, 1976 — Decided December 1, 1976. Roland L. Enloe, Jr., for Scott. Robert L. Collins, Jr., for Light. David N. Vaughn, District Attorney, Charles Crawford, Assistant District Attorney, Arthur K. Bolton, Attorney General, for appellee.

When the jury reached its verdicts, they were read by the district attorney and the following occurred: "District Attorney: We the jury find defendants guilty as charged the 24th day of September, 1974 and it is signed by the foreman, Your Honor. The Court: Did you have any word that you wanted to say to the court with respect to one defendant as you indicated when the court was in the jury room? The Foreman: No sir. The Court: Your are not doing that? The Foreman: We think the point has been taken. The Court: Sir? The Foreman: We think the point has been taken.”

A majority of this court find that the judgment must be reversed and a new trial granted. Justices Jordan and Ingram find reversible error as to both defendants in the admission of the polygraph testimony even without objection. See Salisbury v. State, 221 Ga. 718 (146 SE2d 776) (1966); Famber v. State, 134 Ga. App. 112 (213 SE2d 525) (1975). Justices Gunter and Hill find reversible error as against defendant Light in the admission of the testimony concerning Scott’s failure of the polygraph examination.

Justices Gunter, Jordan, and Hill find reversible error in the state’s failure to show absence of harm by the improper contact with the jurors. Watkins v. State, 237 Ga. 678 (1976); Wilson v. State, 212 Ga. 73 (90 SE2d 557) (1955).

The remaining enumerations of error are without merit.

Judgment reversed.

All the Justices concur, except Nichols, C. J., Undercofler, P. J., and Hall, J., who dissent.