Byrd v. StateByrd v. State
- Reporters:
- , , ,
- Before:
- Birdsong
Richard Byrd appeals his judgment of conviction of one count of armed robbery; the indictment for this count averred, inter alia, that appellant and several co-indictees, аcting together as parties to the crime, did take certain property from the immediate presence of the named victim, by use of a revolver. Held:
1. To support the verdict, circumstantial evidence must only exclude reasonable hypotheses; it need not exclude every inference or hypothesis except that of the defendant’s guilt. Smith v. State, 257 Ga. 381, 382 (359 SE2d 662). A determination whether other hypotheses have been excluded is primarily a jury function. Murdix v. State, 250 Ga. 272, 274 (1) (297 SE2d 265). Viewing the evidence of this case in a light most favorable to the verdict, we conclude that the jury rationally could exclude every reasonable hypothesis except that of the defendant’s guilt. Review of the transcript reveals ample evidence from which any rational trier оf fact could have found beyond a reasonable doubt that appellant was guilty of the armed robbery offense of which convicted. Jackson v. Virginia, 443 U. S. 307 (99 SC 2781, 61 LE2d 560). Appellant’s fifth and sixth enumerations of error are without merit.
2. Appellant contends the trial court erred in admitting in evidence certain statements of appellant when he was not furnished with a complete and accurate copy of such statements prior to trial.
The record reveals that appellant was notified by the State of the substance of the statements, within the meaning of
White v. State,
253 Ga. 106, 109 (2) (317 SE2d 196), which the State anticipated using against him. Compare
Causey v. State,
215 Ga. App. 723 (452 SE2d 564). Further, appellant concedes in his brief that State’s Exhibit 35-A, B, and C contained the written summary of defendant’s statement that was “provided to defendant.” Any discrepancies between the testimony of Caрtain Walters of the City of Sylvester Police Department, and the contents of the statements of which appellant was notified were sufficiently de minimis to
Captain Walters testified, regarding appellant’s explanation of events following the pawn shop robbery, that appellant made the statement: “ T told him, hell,’ to take the shit home.” State Exhibit 35-C, however, summarizes this particular sеntence as follows: “I told him hell do to take that shit on.” When the testimony of Captain Walters is compared in its totality with the contents of State’s Exhibit 35-C, we find beyond a reasonable doubt that thе discrepancy noted did not contribute to the guilty verdict of armed robbery of the pawn shop.
3. Appellant contends it was error to allow a witness to testify when the State had negotiated an agreement with the witness to obtain such testimony and had not disclosed the details of the agreement until after jury selection notwithstanding appellant’s timely request for such disclosure. Two co-indictees were called to testify by the State. Appellant’s sole contention in support of this enumeration is that an undisclosed negotiated plea existed bеtween the witness Telley Styles and the State.
As appellant does not assert in support of this enumeration that an undisclosed negotiated plea existed between co-indictеe Casynthia McWhorter and the State this particular issue has not been preserved on appeal. Court of Appeals Rule 27 (c) (2).
As appellant did not timely assert at trial any claim of error before the trial court on the grounds that an undisclosed negotiated plea existed between the State and Telley Styles, this issue is not preserved for appeal. Compare Cole v. State, 211 Ga. App. 236, 238 (438 SE2d 694).
Additionally, the record does not affirmatively disclose that any negotiated agreement existed between Telley Styles and the State, which was executed in considеration of Styles’ testifying in appellant’s trial; the State in its appellate brief expressly denies the existence of such an agreement. Appellant merely asserts in his appellate brief that “[a]ny negotiated plea between Telley Styles and the State regarding his testimony was never provided to appellant prior to trial or otherwise.” Facts and infеrences asserted in appellate briefs unsupported by the record cannot be considered on appeal. Behar v. Aero Med Intl., 185 Ga. App. 845, 846 (1) (366 SE2d 223). Appellant has failed to establish affirmatively by the rеcord that any such negotiated agreement existed between the witness Styles and the State; appellant must establish both harm and error to obtain reversal of a conviction оn appeal. Robinson v. State, 212 Ga. App. 613, 616 (2) (442 SE2d 901).
4. Appellant contends the trial court erred in allowing the State to call a witness whose name was not provided in response to appellant’s demand, pursuant to
“When a witness’ name is contained in the indictment, a defendant cannot validly
Additionally, the record affirmatively reveals that, prior to the co-indictee being called to the stand, the trial court directed that appellant be given an opportunity “to thoroughly interview” her; subsequently, appellant’s counsel affirmatively responded when asked if counsel “had an opportunity to talk with the witnesses” and stated she was ready to go forward with the trial of the case-in-chief.
Bentley v. State, 210 Ga. App. 862 (438 SE2d 110) is distinguishable and not controlling. In Bentley, the record revealed the witness declined to be interviewed bеfore testifying, and the State’s tactics created an appearance that it was attempting to circumvent the defendant’s right to reasonable pretrial access to evidence. In the case at bar, the witness was listed on the indictment as a co-indictee and appellant’s counsel made an admission on the record that counsel was accorded an opportunity to talk with the witness and was ready to proceed to trial.
The purpose of
Further, assuming arguendo error had occurred as enumerated, appellant, by failing to invoke the remedies of continuance or mistrial (id.) and by аnnouncing his readiness to proceed after affirming he had the opportunity to talk with the witness, would have aided such error by his own trial tactics and conduct. See generally Williams v. State, 205 Ga. App. 445, 446 (2) (422 SE2d 309).
5. To the extent the legal issues raised in appellant’s fourth enumeration of error (that it was error for the district attorney to fail to respond to his written notice for production of evidence favorable to appellant/defendant) were not properly addressed in the appellant’s brief in support of his first enumeration of error, they have been abandоned. Court of Appeals Rule 27 (c) (2). The issues contained in appellant’s first enumeration of error were decided against him in Division 2 above.
Appellant’s contentions in support of his various enumerations of error are without merit.
Judgment affirmed.
Johnson and Smith, JJ., concur.