417 S.E.2d 214 | Ga. Ct. App. | 1992
Defendant Anthony Eschena and two co-defendants, Huffman and McKinney, were accused of armed robbery of a convenience store. The co-defendants pled guilty and the pleas were accepted on the condition that they give truthful testimony at defendant Eschena’s trial. Defendant was convicted and appeals.
1. At trial, co-defendant Huffman testified that defendant actively participated in the robbery. Guns and a ski mask identified as those used in the commission of the crime were found in the defendant’s trailer. We reject defendant’s argument that the evidence was insufficient to enable a rational trier of fact to find proof of guilt beyond a reasonable doubt. The testimony of the co-defendant, corroborated by circumstantial evidence, was sufficient to support the conviction. See OCGA § 24-4-8. Although the second co-defendant refuted his earlier statements and testified that he committed the crime alone without defendant’s assistance, the credibility of the witnesses and the weight to be'given their testimony is a question of fact for the jury. See Lawrence v. State, 198 Ga. App. 287 (4) (401 SE2d 275) (1991). Sufficient evidence was presented for the jury to find defendant guilty beyond a reasonable doubt.
2. The second co-defendant, McKinney, gave earlier sworn and unsworn statements that defendant committed the crime, but at trial refuted those statements and testified he committed the crime alone, without defendant’s assistance. Ultimately, the witness became belligerent and, after consulting his own attorney, informed the trial court he wished to withdraw his guilty plea and refused to testify further. The State then offered the witness use immunity for his testimony at defendant’s trial, but he continued to refuse to testify.
Defendant argues the trial court violated his right to due process
3. We also reject defendant’s argument that the trial court violated his right to due process and to a fair trial by allowing the prosecuting attorney to “pistol whip” the recalcitrant witness when he refused to incriminate the defendant. We have examined the record and, contrary to defendant’s argument, conclude no improper threats or comments were made by the prosecuting attorney in the presence of the jury. He was merely reminded, outside the presence of the jury, that the sentence based on his negotiated guilty plea could be vacated and informed that he was subject to prosecution for perjury for inconsistent sworn statements made to the court. Moreover, the record shows the witness never changed his testimony after he was so admonished and never offered testimony incriminating to the defendant. In light of the witness’ prior inconsistent statements incriminating the defendant, the State’s efforts to impeach him were proper. See Warren v. State, 197 Ga. App. 23 (397 SE2d 484) (1990). The credit to be given a witness’ testimony after he has been impeached by contradictory out-of-court statements is a question for the jury. Arnold v. State, 198 Ga. App. 514 (402 SE2d 312) (1991).
Judgment affirmed.