158 Ga. App. 570 | Ga. Ct. App. | 1981
Charles David Kemp was convicted of two counts of armed robbery, kidnapping, rape and aggravated sodomy. He was sentenced to concurrent life sentences for rape and aggravated sodomy and
1. In his first enumeration, Kemp argues that the state’s attorney made several prejudicial comments and references which allegedly pointed to evidence' not admitted concerning an undisclosed relationship with a female police officer (an assault) which occurred several months earlier than the offenses for which Kemp was on trial. The trial court would not allow the evidence of the earlier assault (though very similar in design and modus operandi) in what obviously was an abundance of caution to avert possible prejudice. However, the evidence offered as to the officer’s arrest of the appellant for the crimes for which he presently was on trial and as to all the circumstances of that arrest clearly was admissible. State v. Luke, 232 Ga. 815 (209 SE2d 165); Hawkins v. State, 137 Ga. App. 483, 484 (224 SE2d 118). The argument of the state’s attorney that certain (unidentified) evidence might be forthcoming through the witness and subsequent evidence that Kemp showed signs of fear of and possible recognition by the female officer when he was arrested again without connecting that recognition and flight with the earlier assault certainly was less harmful than the evidence of the circumstances of the earlier assault (which we believe was fully admissible). It was only the fortuitous fact that appellant had earlier assaulted the very female police officer, who subsequently arrested him for the present series of crimes, that any potential problem occurred with the witness’ testimony. We conclude that the trial court acted fairly in its regulation of the trial and the admission of the evidence and argument involved. We do not view the proceedings with the same alarm as does counsel for the appellant. Our reading of the record indicates a scrupulous regard for the protection of the rights of the appellant. We discern no error or prejudice in the argument of counsel or the admissibility of the evidence. Sierra v. State, 155 Ga. App. 198 (270 SE2d 368).
2. In his second enumeration of error appellant argues that he was not granted a full hearing outside the presence of the jury on the issue of pretrial identification by the victim of the rape and robbery. In point of fact, appellant requested a hearing outside the jury and was granted that right. However, he did not make such a request before the trial started but only as particular witnesses came to testify. Eventually appellant complained that he had not called all the witnesses he wanted on the issue and from that base now complains that he was denied the “complete” right to such a hearing.
If there was a piecemeal approach to the admissibility of the pretrial identification procedures, it was the result of the appellant’s
3. In his last enumeration appellant complains that he was denied the right of discovery in that the trial court did not give him copies of statements of witnesses who testified for the state. He adds to this enumeration the allegation that the trial court erred in failing to seal and deliver to this court as a part of the record the exhibits of the state’s file that the trial court examined in camera.
In the first instance, it is admitted by appellant’s counsel that he was given the right (and exercised that right) to examine the state’s file. Counsel admitted that he had seen all the desired statements but simply could not recall the full substance of each statement. The state objected to delivering the statements as they existed at the time of trial because trial notes had been placed thereon by the state’s attorney. The trial court did in fact examine some of the witnesses’ statements and in one instance, disclosed information to the defense and stated as to the others that nothing exculpatory appeared therein. Appellant has made no showing before this court that the procedure followed denied him the opportunity to fully cross examine the state’s witnesses or that the state’s counsel purposefully withheld evidence that would have affected either the issue of guilt or the sentence imposed upon the defendant.
This court recently has examined contentions similar to those made by counsel in this case and rejected the position advocated by appellant. We conclude first that appellant was afforded full discovery rights. Even though counsel saw all the statements, counsel for appellant has shown this court no reason why we should exercise our discretion to call before this court the state’s records examined in
Judgment affirmed.