Green v. StateGreen v. State
- Reporters:
- , , ,
- Before:
- Birdsong
After being tried for murder, two counts of aggravated assault, armed robbery, and two counts of possession of a firearm during the commission of a felony, Johnny Green was convicted only of the armed robbery. He now appeals that conviction. Green contends the trial court erred by refusing to accept a verdict even though the jury had returned to the courtroom and had announced it had rеached a verdict on all charges, by recharging the jury after it had reached a verdict, by giving a repetitive, inaccurate аnd misleading recharge that was unduly coercive and unfairly suggestive, by excluding the testimony of a clinical psychologist, and by refusing to grant a timely motion for a continuance.
Green’s brief does not comply with Rule 15 of this court; the argument is not numbered sequentially following the еnumerations of error, but is one continuous argument. Rule 15 (c) (1). Further, some arguments are without citations of authority. Rule 15 (c) (2). Held:
1. The transcriрt shows that Green’s first two enumerations of error, concerning charging the jury after the jury announced it had reached a verdict on аll counts, arises from the trial court’s attempt to correct what it believed was an erroneous response to the jury’s request fоr further instruction. Before the recharge could be given, however, the jury advised that it had reached a verdict. Although the jury was returned to the courtroom, it was directed not to announce its verdict, and this verdict was not published. Then the trial court
The trial court is obliged to charge the jury on the law applicable to the case. Pope v. State, 52 Ga. App. 411, 413 (183 SE 630). Therefore, the trial court was authorized to correct any errors in the charge (Turner v. State, 178 Ga. App. 888, 889-890 (345 SE2d 99); Barraza v. State, 149 Ga. App. 738, 739 (256 SE2d 48)), and could do so sua sponte. Litmon v. State, 186 Ga. App. 762, 763 (368 SE2d 530). Thus, the only issue is whether the trial court was precluded from doing so because the jury advised that it had reached and was ready to announce its verdict. Since “[v]er diets acquire their legality from return and publication” (Bradley v. State, 135 Ga. App. 865, 870 (219 SE2d 451)), there was no verdict in this case until it was received and published in open court. Bell v. State, 163 Ga. App. 672, 674 (295 SE2d 147); Harden v. State, 160 Ga. App. 514, 516 (287 SE2d 329). Therefore, wе hold that it was not error to recharge the jury because the verdict was not yet received in open court. Mathews v. State, 176 Ga. App. 394, 395 (336 SE2d 259); Maltbie v. State, 139 Ga. App. 342, 345 (228 SE2d 368). As the cases Green relies upon concern verdicts which were announced in open court or were incomplete for some reason, they are not persuasive. Moreover, since the court did not know what the jury’s verdict had been prior to the giving of the corrеctive charge, it cannot be said that the recharge was an attempt to alter the jury’s verdict. It must be assumed that the verdict as it was actually published was the correct verdict given under the corrective charge. Accordingly, the first two enumerations of errоr are without merit.
2. Green’s third enumeration contends that the recharge was repetitive, contained inaccurate and misleаding statements of the law, was unduly coercive and unfairly suggestive. The argument intended to support the enumeration, however, simply restаtes or rephrases the enumeration, e.g., “the recharge . . . was not a correct statement of the law” or “failed to charge the correct law,” recites generally what the court stated, e.g., the “court first talked about what was theoretically possible” and “the court talked about conspiracy which it commingled with the definition of robbery,” but the argument cites no authority, identifies no particular erroneous statement of the law, and contains no reference to the transcript. “The mere repetition and rephrasing of an enumeration of error without more is not the argument anticipated [in Rule 15]. The principal purpose of argument is to provide guidance to this court on the basis for a claim of error and for citations of authority which tend to support аppellant’s allegation of error. A mere recital, or repetition, of the enumerated error is not argument.” (Citations and рunctuation omitted.)
Chesser v. Wallace,
3. Green’s fourth enumeration of error contends the trial court erred by excluding the testimony of a clinical psychologist. The argument made is included within the argument of the other enumerations, and has no citation of authority supporting Green’s contention the trial сourt erroneously excluded this witness. The thrust of the argument presented is Green’s defense “would have been” that he “lacked the mentаl acumen necessary to form criminal intent,” a defense recognized in our law, that under
4. Finally, Green contends the trial court erred by denying a timely motion for a continuancе so that he could receive final written psychological reports. As the party seeking the continuance, Green was requirеd to demonstrate that he used due diligence in obtaining the reports, and the record does not demand a finding that Green exercised diligence in securing the report.
Judgment affirmed.
Beasley, P. J., and Andrews, J., concur.