Herring was convicted by a jury for kidnapping with bodily injury, OCGA § 16-5-40, and aggravated assault with an automobile console lid, OCGA § 16-5-21. He was acquitted of other charges, and his motion for new trial was denied.
The evidence is viewed in a light most favorable to the verdict, and the defendant no longer enjoys the presumption of innoсence; in addition, an appellate court does not weigh the evidence or determine witness credibility but only determines whether the evidence is sufficient under the standard of
Jackson v. Virginia,
Herring and his wife had been married eight months at the time of this incident, and she was two months’ pregnant. They had an argument, and Herring threw a wine glass at her while she was bathing. She went to the bedroom, and he punched her in the face. She attempted to defend herself with a baseball bat, but he grabbed it and struck her on the face with it. Herring left their home, and Mrs. Herring went to the apartment of neighbor Hollis and made a “911” call.
Herring went to Hollis’ apartmеnt and asked to speak to his wife. Mrs. Herring agreed, but when she stepped outside, Herring put her in a “head lock” and dragged her down three flights of stairs, opened the driver’s side door, threw her in, and drove off. He repeatedly hit her, including striking her on the face with the console lid from their car. Mrs. Herring suffered a brokеn nose and other serious injuries including a miscarriage.
Knowing that Herring was without money, Mrs. Herring persuaded him to return to their apartment on the pretext of giving him money. Herring covered her head with a towel to conceal her wounds, and the two walked up the back steps. A police officer was waiting on the second floor. Mrs. Herring ran to him, and Herring ran in the opposite direction but was arrested at his home the next day.
1. In his first enumeration of error, Herring alleges the trial court abused its discretion by excusing a juror. The case was in the middle of trial, and the court took an overnight recess until 9:00 a.m. the following morning. The State had rested, and the defense had two witnesses remaining to testify, including Herring. The juror telephoned the court to say he had experienced mechanical difficulties with his truck on the way to court and would be unable to appear on time for the trial, but would call back as soon as possible to let the court know his progress. When the juror had not called back by 9:35 a.m., the court replaced the missing juror with an alternate and resumed the trial, over Herring’s objection.
The juror subsequently called from work, near the repair shop where his truck was being serviced, and informed the court it would not be ready until later that afternoon. He provided the court with his work number and indicated a desire to continue as a juror. During the morning recess and after the juror had already been replaced, the court contacted the juror to instruct him that he must either come to the courthouse voluntarily or be transported by a deputy sheriff on a bench warrant.
After the charge conference at the end of the evidence presentation, the sheriff brought the juror into the courtroom. He told the court his truck was taken to the nearest repair shop between 8:30 and 8:45 and was currently being serviced. He indiсated that when *811 he called from the repair shop and spoke with courthouse personnel, he was told to call back in an hour or so. The juror then telephoned work. His employer permitted a co-worker to come to the repair shop and transport the juror to work, but would not аllow the co-worker to transport the juror to the courthouse. The juror indicated he did not know the court could send a sheriff’s car for him that morning, and if he had known, he would have requested it. The juror’s explanation was confirmed.
Herring contends the court erred in failing to investigate before dismissing and replаcing the juror or to wait to hear directly from the juror regarding his situation, and that no good cause was established to excuse the juror.
OCGA § 15-12-172 provides: “If at any time, whether before or after final submission of the case to the jury, a juror dies, becomes ill, upon other good cause shown to the court is found to be unable to perform his duty, or is discharged for other legal cause, the first alternate juror shall take the place of the first juror becoming incapacitated.”
This Code section implicitly authorizes the trial court to exercise its discretion.
Baptiste v. State,
The court did not abuse its discretion. It had no information at the time the trial was set to proceed as to where the juror was, how long he would be without transportation, or when he would be able to return to court. Information discovered after replacement, that the juror would have been able to continue serving if the sheriff fetched him, does not change this conclusion. The court did not have to keep everyone waiting (beyond the 35 minutes they did wait) for an indeterminate period of time for the juror to report.
This is not a situation where the jury was deadlocked or had begun deliberations, when the need for investigation and the possibility of harmful error are heightened. See
Hill v. State,
2. The second enumeration is that the court allowed the State to violate
Brady v. Maryland,
Mrs. Herring testified at the bond hearing, when it was possible Herring would gain release, that she voluntarily went to the car with her husband and that he struck her in self-defense and only to avoid an accident after she grabbed the steering wheel. Bond was set at $30,000 cash. Herring was unable to post bond. At the hearing on the motion for reduction, Mrs. Herring testified that she did not voluntarily get into the car, nor did Herring strike her in self-defense or to avoid having a crash.
Herring argues that an important component of his defense was the victim’s inconsistent sworn testimony. He contends onе basis for the change in testimony between the original bond hearing and the bond reduction hearing was the pendency of a forgery case prosecution by the same district attorney’s office. Although the investigating officer recommended indictment, Mrs. Herring’s case had not been prosecuted by the timе her husband’s case came to trial.
Herring learned of meetings between the prosecutor and Mrs. Herring during trial after an in camera inspection of the State’s file, when the court supplied Herring with copies of documents discussing the forgery case and the decision to dismiss it. Herring argues he was harmed bеcause the jury could not hear about the meetings relating to the disposition of the charges against Mrs. Herring, which would have caused her to change her testimony and affected her credibility. He maintains he was further harmed by the court quashing the subpoena served on the prosecutor in an attemрt to elicit this evidence *813 for the jury to consider in evaluating her credibility.
Herring cites
Hines v. State,
No
Brady
violation occurred, since the materials were made availablе to Herring during trial.
Brady
does not require pre-trial disclosure of materials sought by the defendant.
Dennard v. State,
Hines is inapposite since the record shows counsel was permitted vigorous cross-examination оf Mrs. Herring, including questioning her about the pending forgery investigation, the change in her testimony, and meetings she had with the prosecutor. Further, Herring declined the court’s offer of the opportunity to recall Mrs. Herring.
3. Herring next contends the court contravened OCGA § 24-2-2 by admitting evidence of prior domestic violence by Herring towards his wife to show course of conduct and bent of mind, when the prior incidents were not sufficiently similar to the incidents on trial. This case is similar to
Bohannon v. State,
As in
Bohannon,
the State satisfied the three-prong test of
Williams v. State,
4. Each incident consisted of physical violence by Herring against the same victim. Each occurred during the course of the parties’ eight-month marriage. Most, as this one, occurred when Herring *814 had been consuming alcohol. The fact that they occurred in a variety of places and over different matters did not ehminate their relevance to show Herring’s behavior, a manifestation of his bent of mind.
“The rule allowing the admission of similar transaction evidence is usually applied more liberally with evidence of prior attempts by the accused to commit the same crime upon the victim of the offense for which he stands charged. Certain otherwise inexplicable assaults, such as occur in a series of incidents of wife or child abuse, particularly lend themselves to this exception to the ‘other offenses’ rule on questions of both identity and motive.” (Citations and punctuation omitted.)
Parcell v. State,
5. Herring next contends the trial court abused its discretion in allowing the State to introduce the similar transaction evidence prior to evidence relating to the charged offenses. He cites
Gilstrap v. State,
Gilstrap
“expressly declined to dеtermine the limits on the trial court’s discretion as to the order of the admission of evidence,” since the order of proof is generally within the trial court’s discretion and will not be disturbed on appeal absent abuse. (Citations and punctuation omitted.)
Bailey v. State,
6. Herring urges error in the imposition of a ten-year sentence for aggravated assault. The State agrees. Verdict was for both kidnapping with bodily injury and aggravated assault. The court noted that the two crimes merge, see OCGA § 16-1-6, and imposed a mandatory sentence of life imprisonment for the kidnapping conviction and, as an alternative to merger, ten years concurrent for aggravated assault “just in case something happens on appeal.”
Aggravated assault is a lesser included оffense of, and is accordingly merged with, the crime of kidnapping with bodily injury.
George v. State,
7. Herring enumerates as error the court’s allowing the State to cross-examine him about certain statements he made to police before given
Miranda
warnings, after the court ruled those statements inadmissible at a
Jackson v. Denno
hearing. Although Herring objected, he did not give any particular reason. In order to preserve a ground for error, the objecting party must state the specific ground upon which it is based. “[A]n otherwise valid reason why evidence should not be admitted will not be considered on appeal unless the specific reason was urged below.”
Fletcher v. State,
8. Herring maintains the court erred in failing to give his justification defense charges based on OCGA § 16-3-20. The court’s lengthy instruction to the jury in this regard was adjusted to the evidence and fully and properly informed the jury as to justification and self-defense. The court was not required to give the exact language of Herring’s request when the same principles were expressed in the general chargе.
Howard v. State,
9. The final enumeration is that the evidence was insufficient to support the verdict. As Herring recognizes, this Court addresses sufficiency under the standard of
Jackson v. Virginia,
Judgment affirmed in part and reversed in part.