Hambrick v. StateHambrick v. State
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- Before:
- Beasley
Hambrick appeals his judgment of conviction and sentence for armed robbery,
1. Relying on Salisbury v. State, 221 Ga. 718 (2) (146 SE2d 776) (1966), appellant contends that the trial court’s preliminary instruction on the burden of proof, given just after the jury was impаnelled and sworn, improperly restricted them to consideration of the state’s evidence.
First, appellant made no contemporaneous objection to the instruction. A criminal defendant is not relieved “of the obligation to make timely objection throughout the trial. This obligation is essential to the court’s trying the case with as few errors as possible.”
Foshee v. State,
256 Ga. 555, 557 (2) (350 SE2d 416) (1986).
Second,
Salisbury,
supra, is inapposite. There the Court rejected as harmful error an instruction that if the State’s evidence proved the material allegations of the indictment beyond a reasonable doubt, “the defendant on trial would be guilty and it wоuld be your duty to so say by your verdict.” In contrast, the court here instructed that “the State has the burden of proof. That simply means that the State has the responsibility of presenting to you the evidence on which they contend shows the defendant is guilty of the offense as charged. . . . The defendant does not have to present to you any evidence and is
2. Appellant contends that he was improperly impeached by references to his post-arrest silence.
Appellant testified in his own defense that on the day in question he and his girl friend had been arguing, that hе had moved into his friend Jones’ apartment, and that he was in Jones’ company at 4:45 p.m. when the robbery occurred. Jones testified for the defense but was unable to specify whether he was with apрellant on that day. On cross-examination, appellant was asked whether this was the first time he had mentioned having had a fight with his girl friend, to which he responded in the negative. The State then inquired, “Did you tell anybody еlse when you were arrested?” Appellant’s counsel objected on Fifth Amendment grounds, and the State abandoned the question before any response was given. The State then asked again whethеr this was the first time he had told the story about the fight with his girl friend and moving into Jones’ apartment. An objection was asserted on the same grounds. The court admonished, “Counsel, he’s not bound to tell anybody anything. . . [There] wouldn’t be any ■need to ask him if the jury can’t make any determination from that. I already told them he had no burden to do anything.” The State abandoned the question, which when asked the first time had been answered “no.” No further relief was requested.
To the extent that the State sought to tread on territory protected by the Fifth Amendment privilege against self-incrimination, the court curtailed the inquiry. Compare Clark v. State, 237 Ga. 901 (1) (230 SE2d 277) (1976) (harmful error resultеd where the State was permitted to cross-examine defendant extensively regarding his failure to advise investigating officers of his alibi defense). Compare also Paschal v. State, 181 Ga. App. 794 (2) (354 SE2d 5) (1987).
The inquiry here, which yielded only responses that defendant had related his alibi earlier, and which was stopped by the court before prejudice arose, did not constitute a comment on defendant’s silence or failure to come forward, such as would mandate reversal on State evidentiary grounds under Mallory v. State, 261 Ga. 625 (5) (409 SE2d 839) (1991).
3. In three enumerations of error, appellant complains that he was compelled to give a handwriting exemplar during his cross-exami
The victim testified that he hired appellant and agreed to pay him $175 to do some painting at an apartment complex which he managed. The victim advanced appellant $20 for supplies for which he obtained a receipt, signed by appellant in his presence. Later in the day appellant robbed him at gunpoint of $300 in cash rental proceeds. Appellant denied his particiрation in the crime. The signed receipt was introduced in evidence without objection. On cross-examination, appellant denied that the signature on the receipt was his. The State then askеd, “You want to write your signature down for us so we’ll know what your signature looks like?” Appellant responded, “Sure. How many times?” He proceeded to sign his name several times. No objection was raised throughout this process, and the exhibit was received without objection.
Without deciding that the contentions were not waived, we address their merits. “[Although evidence may be compulsorily adduced from an accused, it is constitutionally impermissible to compel an accused to perform an act which results in the production of incriminating evidence. [Cit.] The distinction is between forcing an accusеd to do an act against his will and requiring an accused to submit to an act. While the latter ‘takes evidence from the defendant’ [cit.], and is constitutionally acceptable, the former compels the defendant, in essence, to give evidence which violates an individual’s right not to incriminate himself.” (Emphasis in original.) State v. Armstead, 152 Ga. App. 56 (1) (262 SE2d 233) (1979).
Appellant was not compelled to give the exemplar; he was asked to submit to the act, which he readily agreed to do. There was no violation of the Georgia constitutional right nor of
Nor was there a violation of
4. Appellant enumeratеs as error the jury charge on the entire armed robbery statute,
“It is not usually cause for new trial that an entire Code section is given. [Cits.] This is so even though a part of the charge may be inapplicable under the facts in evidence. [Cits.]” Keller v. State, 245 Ga. 522 (1) (265 SE2d 813) (1980). The indictment was read to the jury as part of the court’s instruction and was provided to them during deliberations. The targeted instruction was a correct statement of the law and, considering the entire charge, could not have misled the jury into convicting defendant of a manner not chаrged by the grand jury. Moreover, it was not disputed that the weapon, if any, was a handgun, so the jury could not have been confused. Cf. Estes v. State, 251 Ga. 347 (2) (305 SE2d 778) (1983). Compare Owens v. State, 173 Ga. App. 309 (326 SE2d 509) (1985), where defendant was indicted for trafficking in cocaine; an instruction that a conviction would be authorized upon a finding that he was in actual or constructive possession of the contraband constituted reversible error.
5. Appellant contends that the trial court violated
The charge is considered in its entirety in order to determine whether a portion of it improperly constituted an expression of opinion on the facts.
Sweat v. State,
173 Ga. App. 441 (326 SE2d 809) (1985). After fully instructing the jury on appellant’s defense of alibi, the court concluded: “Now, of course, the court dоes not suggest that there is evidence or is not evidence of an alibi. That depends on what you believe and what you think about the evidence. The defendant says he was not there. The state cоntends that the evidence does not show that he was not there. The evidence shows that he was there.
Judgment affirmed.
Birdsong, P. J., and Andrews, J., concur.