DOBBS v. THE STATE., 245 Ga. 208, 264 S.E.2.d 18 (1980)
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Judgment affirmed. All the Justices concur.
Summary
Judgment affirmed. All the Justices concur.
Text
Robert M. Altman, Tony Axam, for appellant.
The appellant's convictions and sentences for armed robbery, aggravated assault, and murder (for which he received a death sentence) were affirmed in Dobbs v. State,
1. The appeal from the denial of the motions for summons of out-of-state witnesses, is deemed abandoned by the failure to enumerate it as error or argue it either by brief or orally.
2. In Georgia, as in most jurisdictions, the general right of one accused of a felony to be present during the course of his trial does not extend to post-verdict procedures such as a motion for new trial, at which only questions of law, not questions of fact, are determined. Sims v. Smith,
The appellant contends that these cases do not preclude his alleged right of presence at the hearing on his extraordinary motion for new trial because the facts in his case are "complicated"; because the proceedings were not on a motion for new trial, as in Sims and Reid, but on an extraordinary motion for new trial, wherein counsel was not the same as trial counsel, as would ordinarily be the case in a motion for new trial; and because of "the evolving standard of due process applicable to death penalty cases by the United States Supreme Court in the series of cases since Furman v. Georgia, 408 U. S. 238 (92 SC 2726, 33 LE2d 346) (1972)."
We are aware of the case law recognizing that the death sentence is a different kind of punishment from any other imposed, and deserves special considerations at times. However, the appellant has cited us to no decisions supporting his contention that a death-penalty defendant generally is "allowed to be present at each step of his appeals process," and we have found no case to that effect. In the absence of clear and controlling authority, we decline to create and recognize such a right.
Furthermore, even if such a right exists, the appellant could be deemed to have waived it by waiting until the Friday before the hearing on Monday to assert such right, although he was informed several weeks prior to the hearing that the assistant district attorney did not intend to have him brought to the hearing. See Patterson v. State,
3. The trial court did not err in denying the extraordinary motion for new trial on all of its grounds.
(a) The appellant contends that he was entitled to a new trial on the ground that the co-defendant, Walter Harris (who is now serving a life sentence for the murder), has subsequently recanted his testimony at trial that the appellant had participated in the crimes of which he was convicted. This newly discovered evidence is not so material that it would probably produce a different verdict. Johnson v. State,
(b) "[I]t is incumbent on a party who asks for a new trial on the ground of newly discovered evidence to satisfy the court: (1) that the evidence has come to his knowledge since the trial; (2) that it was not owing to the want of due diligence that he did not acquire it sooner; . . ." Burge v. State,
State,
William M. Campbell, District Attorney, Arthur K. Bolton, Attorney General, for appellee.
1980
This document cites
- U.S. Supreme Court - Furman v. Georgia, 408 U.S. 238 (per curiam) (1972)
- Supreme Court of Georgia - DOUTHIT v. THE STATE., 244 Ga. 471, 260 S.E.2.d 875 (1979)
- Supreme Court of Georgia - RICHARDS v. THE STATE., 240 Ga. 90, 239 S.E.2.d 678
- Supreme Court of Georgia - PATTERSON v. THE STATE., 238 Ga. 204, 232 S.E.2.d 233 (1976)
- Supreme Court of Georgia - DOBBS v. THE STATE., 236 Ga. 427, 224 S.E.2.d 3 (1976)
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