435 S.E.2d 709 | Ga. Ct. App. | 1993
Appellant was convicted by a jury of hindering the apprehension of a criminal, carrying a pistol without a license and carrying a firearm at a public gathering. He appeals from the judgment entered on the convictions.
This appeal arises from a shooting incident resulting in the death of a young man. Viewing the evidence in a light to support the ver
1. Appellant first enumerates as error the denial of his motion for a directed verdict.
(a) “A person commits the offense of hindering the apprehension
(b) “A person commits the offense of carrying a pistol without a license when he has or carries on or about his person, outside of his home, motor vehicle, or place of business, any pistol or revolver without having on his person a valid license. . . .” OCGA § 16-11-128. Appellant argues that he was not guilty of carrying a pistol “outside of his home, motor vehicle, or place of business” without a license. (Emphasis supplied.) Thus, the fact that he was carrying the pistol in a motor vehicle which was not his own did not negate the need for a license.
(c) “A person is guilty of a misdemeanor when he carries to or while at a public gathering any . . . firearm. . . . For the purpose of this Code section, ‘public gathering’ shall include, but shall not be limited to, athletic or sporting events, churches or church functions, political rallies or functions, publicly owned or operated buildings, or establishments at which alcoholic beverages are sold for consumption on the premises.” (Indentation omitted.) OCGA § 16-11-127 (a), (b). Appellant contends that he was not guilty of carrying a firearm at a public gathering because he did not carry it inside the Lodge where alcoholic beverages were being sold. However, we have held that the offense of carrying a firearm at a public gathering may occur in a parking area on the grounds of and in close proximity to a public gathering. See Farmer v. State, 112 Ga. App. 438 (1c) (145 SE2d 594) (1965). Moreover, there was testimony from which the jury could conclude that the “younger crowd” who could not go into the Lodge often gathered in the Lodge’s parking lot on Saturday nights and that. on the Saturday night of the incident a large number of people were gathered there, “hanging out,” eating and talking. From this, the jury could reasonably find that the parking lot itself was the site of a public gathering, so that appellant brought the pistol to a public gather
As reasonable jurors could find appellant guilty of all three offenses beyond a reasonable doubt, the trial court did not err in denying appellant’s motion for a directed verdict. See Jackson v. Virginia, 443 U. S. 307 (99 SC 2781, 61 LE2d 560) (1979).
2. Citing Sims v. Georgia, 385 U. S. 538 (87 SC 639, 17 LE2d 593) (1967), appellant next argues that the trial court erred in denying his motion for mistrial after the prosecutor in his opening statement referred to a statement made by appellant’s co-defendant which had not already been ruled admissible. The Georgia Supreme Court has held that “[although it was improper for the district attorney to refer to statements made by the defendants prior to a Jackson v. Denno hearing to determine their admissibility, there was no harm to the defendants because the reference was to ‘statements,’ a neutral term, rather than ‘confessions.’ The district attorney did not go into the content of the statements but merely referred in passing to them.” Brown v. State, 250 Ga. 862, 865 (2) (302 SE2d 347) (1983). As in Brown, the prosecutor in this case referred to a “statement” rather than a “confession” of the co-defendant and did not discuss the content of the statement but merely referred to it in passing. Moreover, unlike the defendants’ statements in Brown, the statement at issue in this case was subsequently ruled voluntary and admissible following a Jackson v. Denno hearing. Under these circumstances, the trial court did not err in denying the motion for mistrial on this ground.
3. In his third enumeration of error, appellant contends that the trial court should have granted his motion for mistrial after the trial court brought appellant’s character into issue by referring to his first offender status. In addition to the offenses for which appellant was tried below, he was charged in a separate indictment with the offense of possession of a firearm while on first offender status. The record indicates that the prosecution and defense had agreed that this separate offense would be tried separately as contemplated in Head v. State, 253 Ga. 429 (3) (322 SE2d 228) (1984). Nonetheless, while swearing the jury, the trial court inadvertently mentioned the second indictment, stating as follows: “You shall well and truly try the issue formed under these two bills of indictment between the State of Georgia and the persons hereafter named and a true verdict given according to the evidence. This applies to criminal action number 90R-021 charging Henry Lee Dennard and Demetrius Hubbard with the offense of murder, felony murder, aggravated assault, hindering apprehension of a criminal, carrying a pistol without a license, carrying a deadly weapon at a public gathering. It also applies to criminal ac
4. Lastly, appellant argues that the trial court erred in denying his motion to sever his trial from that of Dennard because if their trials had been severed, Dennard would have provided testimony helpful to appellant in appellant’s trial. See Habersham v. State, 190 Ga. App. 211 (1) (378 SE2d 489) (1989). Appellant’s counsel stated that if severance was granted, Dennard was willing to testify that he alone fired the gun, that there was no common intent or plan to fire the gun, and that Dennard was not aided or abetted by appellant. However, the proffered testimony of Dennard goes only to the charges of murder, felony murder and aggravated assault — all charges of which appellant was acquitted. The testimony was not relevant to the charges of hindering the apprehension of a criminal, carrying a pistol without a license and carrying a firearm at a public gathering of which he was convicted. Accordingly, the denial of appellant’s motion
Judgment affirmed.
We note that appellant could have avoided this problem if he had been alert and objected as soon as the trial court mentioned two indictments. We hesitate to call this a waiver, however, as we acknowledge that it would have been awkward at best to object while the court was in the process of administering the oath to the jury.