Durden v. State
327 Ga. App. 173
Ga. Ct. App.2014Background
- Defendant Charlie Woodrow Durden was convicted by a jury of two counts of aggravated assault and one count of aggravated battery for cutting his wife with a sword during an alcohol-fueled altercation; injuries required surgical repair and likely caused permanent damage.
- After conviction, the trial court merged the aggravated assault counts into the aggravated battery count and sentenced Durden on aggravated battery only; Durden's motion for new trial was denied.
- At trial the State introduced similar-transaction evidence of a prior November 2010 incident in which Durden allegedly stabbed the victim’s son-in-law with a pitchfork; there were no charges from that incident.
- Defense counsel attempted to cross-examine witnesses about the victim’s son’s alleged mental disability and sought a jury instruction and argument based on the affirmative defense of accident; the court limited both lines of defense as unsupported by the evidence.
- The victim mentioned a DUI stop during testimony; the trial court denied a mistrial but gave a curative instruction to the jury to disregard testimony of other crimes.
Issues
| Issue | Plaintiff's Argument (State) | Defendant's Argument (Durden) | Held |
|---|---|---|---|
| Sufficiency of indictment / general demurrer | Indictment properly charged aggravated assault elements | Counts combined language of simple and aggravated assault causing notice defect | Court upheld indictment; aggravated assault convictions merged into aggravated battery, rendering them void |
| Cross-examination about victim’s son’s mental disability | Questioning was marginally relevant and cumulative; limiting was proper | Inquiry was relevant to show why prior call to police was made (credibility) | Limitation was within trial court’s discretion; no abuse of discretion |
| Closing argument/accident defense instruction | No evidentiary foundation for accident defense; limits on argument proper | Could argue act was accidental despite not testifying or admitting the act | Court ruled no evidence that Durden admitted the act; denial of accident instruction and limiting argument was proper |
| Admission of similar-transaction evidence | Evidence admissible to show bent of mind/state of mind and was sufficiently similar | Admission prejudiced Durden; no charges and risk of character inference | Trial court did not abuse discretion; Williams test satisfied; defense acquiesced to ruling |
| Motion for mistrial after DUI remark | Curative instruction sufficed to cure prejudice | Remark about DUI required mistrial | Denial of mistrial was proper; curative instruction adequate |
Key Cases Cited
- Martinez v. State, 278 Ga. App. 500 (standard for viewing evidence on appeal)
- Brown v. State, 322 Ga. App. 446 (test for sufficiency of indictment against general demurrer)
- Smith v. Hardrick, 266 Ga. 54 (each count must be complete and state every essential element)
- Merrell v. State, 162 Ga. App. 886 (elements of aggravated assault)
- Merritt v. State, 288 Ga. App. 89 (merged convictions are void)
- Nicely v. State, 291 Ga. 788 (scope of cross-examination is within trial court discretion)
- Matthews v. State, 294 Ga. 50 (standards for admitting similar-transaction evidence)
- Williams v. State, 261 Ga. 640 (three-prong test for similar transactions)
- Gardner v. State, 273 Ga. 809 (standard for granting mistrial)
- Jones v. State, 287 Ga. 770 (evidence threshold for submitting an affirmative-defense instruction)