Fluker v. The State

Supreme Court of Georgia1937-11-10No. No. 11951

184 Ga. 809

Summary · law.co

Holding. The judgment convicting Fluker of murder is affirmed because the evidence was sufficient to support the verdict, the court properly denied the motion for a new trial based on newly discovered evidence, and the admission of robbery testimony—though generally improper—was not reversible error due to Fluker's failure to timely object and because part of the testimony was admissible to rebut Fluker's own statements.

Fluker was convicted of murder, and the evidence presented was adequate to support the jury's verdict. Fluker sought a new trial based on alleged newly discovered evidence, including an alibi defense and evidence to impeach the prosecution's case. However, the court properly denied the motion because the affidavits submitted did not demonstrate that Fluker and his counsel exercised reasonable diligence in uncovering the alibi evidence before trial, and Fluker's own statements to the jury indicated he had prior knowledge of this evidence. The other purported newly discovered evidence was merely impeaching in nature and was adequately contradicted by counter-affidavits from the state.

A central issue on appeal involved the admission of testimony regarding robberies Fluker committed approximately five months after the homicide. Generally, evidence of other crimes is inadmissible unless it falls within recognized exceptions. The court found that the robbery evidence did not fit any exception because the state's case suggested a different motive for the homicide, and the robberies showed no connection to the murder through common design or scheme. However, because Fluker's counsel failed to object before the evidence was admitted and only objected after the fact, Fluker forfeited this challenge. Additionally, part of the robbery testimony was properly admitted to rebut Fluker's own statements about his possession of firearms, and Fluker's counsel had elicited similar testimony during cross-examination while acknowledging Fluker's concurrent incarceration for the robberies.

Summary generated by law.co from the public-domain opinion. The opinion text itself is public domain.

Key issues

Sufficiency of evidence to support murder conviction
Standard for granting new trial based on newly discovered alibi evidence
Admissibility of evidence of other crimes or offenses
Forfeiture of objections to evidence admitted without timely challenge

Procedural posture

Fluker appealed his murder conviction, challenging the denial of his motion for a new trial and the admission of evidence regarding robberies he committed after the homicide.

Authorities cited

No cited authorities resolved to law.co cases yet.

Opinion · public domain

majority opinion

Jenkins, Justice.

1. The evidence was sufficient to authorize the verdict of murder.

2. The court did. not err in refusing a new trial on the ground of newly discovered evidence tending to establish an alibi, since the supporting affidavits of the defendant and his counsel not only failed to show an exercise of proper diligence in discovering such evidence before the trial, but failed to show a lack of prior knowledge of such evidence, which the statement of the defendant to the jury showed that he in fact must have had.

3. Other alleged newly discovered evidence was merely impeacliing in character, and was rebutted by counter-affidavits for the State.

4. Evidence as to an offense other than that charged against a defendant is not admissible, unless it falls within one of the recognized exceptions. See Frank v. State, 141 Ga. 243 (2-a, c), 256-267 (80 S. E. 1016); Cooper v. State, 182 Ga. 42 (3), 51 (184 S. E. 716, 104 A. L. R. 1309); Wilson v. State, 173 Ga. 275 (2), 284 (160 S. E. 319); Williams v. State, 152 Ga. 498, 521 (110 S. E. 286); Randall v. State, 176 Ga. 897 (169 S. E. 103). Accordingly, where, as in this case, the evidence relatingto the homicide shows nothing to indicate robbery as the motive, but on the contrary the evidence for the State tends to disclose a different motive, testimony as to the commission of two robberies by the defendant, some five months after the homicide and in no way connected therewith either directly or by showing a common design, scheme, plan, or purpose in the commission of the homicide and the robberies, is inadmissible. Where, however, such testimony was, as here, admitted without objection, a subsequent mere objection thereto was “not equivalent to a motion to rule out the testimony already in” (Kehoe v. Hanley, 95 Ga. 321, 322, 22 S. E. 539) ; and in the absence of ainy prompt and specific objection before its admission or motion thereafter to rule it out, an exception based on the mere subsequent objection is without merit. Haiman v. Moses, 39 Ga. 708 (2, 3) 712; Bond v. Baldwin, 9 Ga. 9 (2) 14; Brown v. Oattis, 55 Ga. 416 (2) 417; Blount v. Beall, 95 Ga. 182 (4) 188 (22 S. E. 52); Anderson v. Suggs, 42 Ga. 265, 268; Jackson v. State, 93 Ga. 164 (18 S. E. 436); Deans v. Deans, 171 Ga. 664 (3), 683 (156 S. E. 691, 74 A. L. R. 222); Justice v. Warner, 178 Ga. 579 (4) (173 S. E. 703); Cochran v. Bugg, 131 Ga. 588 (2, 3) (62 S. E. 1048); Langston v. State, 153 Ga. 127 (111 S. E. 561); Grace v. McKinney, 112 Ga. 425 (2) (37 S. E. 737). Such exception shows no reversible error, for the additional reason that part of the testimony, merely objected to as a whole,- was admissible to rebut a statement of alleged fact by the defendant to the jury as to his ownership or possession of pistols (Camp v. State, 179 Ga. 292, 175 S. E. 646; Sisk v. State, 182 Ga. 448 (3), 452, 185 S. E. 777; Worthy v. State, 184 Ga. 402, 191 S. E. 457; Goddard v. Boyd, 144 Ga. 18 (2), 85 S. E. 1013; Gully v. State, 116 Ga. 527 (2) 533, 42 S. E. 790, and cit.) ; and especially so, where in this case the accused by his counsel on cross-examination, with full knowledge of the character of the evidence to be expected, himself elicited substantially the same testimony, and stated in open court that the defendant was then serving time for the subsequent robberies. Annunciato v. State, 176 Ga. 787 (3), 791 (169 S. E. 3); Wheeler v. State, 179 Ga. 287 (175 S. E. 540).

No. 11951.

November 10, 1937.

5. The entire testimony as to the robberies, with the statement in open court by counsel for the defendant that he was serving time therefor, being properly before the jury, as set forth in the preceding paragraph, the court did not err in charging the abstractly correct general rule of law as to the legal purposes for which evidence of other offenses may be considered. See Haden v. State, 176 Ga. 304 (5), 310 (168 S. E. 272); Pritchett v. Moore, 125 Ga. 406 (2) (54 S. E. 131); So. Ry. Co. v. Phillips, 119 Ga. 146 (2) (45 S. E. 967). There was no request to charge in this case, as there was in Central of Ga. Ry. Co. v. Brown, 138 Ga. 107 (6) (74 S. E. 839), that “the evidence was admissible for one purpose only, and not to consider it for any other purpose.”

Judgment affirmed.

All the Justices concur.

Russell G. Turner, J. L. Busby, and H. A. Allen, for plaintiff in error.

M. J. Yeomans, attorney-general, John A. Boylcin, solicitor-general, J. W. LeCraw, E. J. Glower, and Ellis G. Arnall, contra.