Mapp v. StateMapp v. State
- Reporters:
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- Before:
- Birdsong
Police were called to the home of James Edward Mapp and his mother on a report to the effect that Mapp was drunk and disorderly. A scuffle ensued amongst appellant Mapp and the police. According to appellant, the trouble started when a police officer, who was appellant’s former brother-in-law, gratuitously arrived at the scene and began to push appellant around. One officer sustained a broken nose during the scuffle but indicated he thought this was an accident. Appellant was arrested and indicted for felony obstruction and misdemeanor obstruction. At trial he was acquitted of obstruction as to the officer who is his former brother-in-law, but convicted of felony obstruction of the officer whose nose was broken and of obstruction of another officer.
The record shows appellant filed lawsuits in federal court against attorneys who were consecutively appointed to represent him, as well as against the trial judge. The suit against the trial judge was dismissed before trial of the case. The first appeal was remanded for a hearing as to appointment of appellate counsel. Mapp v. State, 199 Ga. App. 47 (403 SE2d 833). Thereupon, appellant’s new counsel filed an extraordinary motion for new trial on grounds of ineffective assistance of trial counsel, which was heard and denied. Held:
1. Appellant complains that his former brother-in-law was allowed to testify before the grand jury, while appellant was not, thus unfairly bringing about an indictment which would not have resulted if appellant could have told his side of the story.
2. Appellant contends the trial court, having granted appellant’s motion for full recordation, erred in failing to have the voir dire and the recharge of the jury recorded.
It is the duty of the judge to direct the recordation of the trial proceedings in felony cases.
3. It was not reversible error per se that the trial court refused to provide appellant with a transcript of his probation revocation hearing. Harper v. State, 170 Ga. App. 601, 603 (4) (317 SE2d 567). Appellant has the duty to show not only error, but harm. “ ‘ “ ‘When [an appellant] brings a case here, he must show error which has hurt him. This court is not an expounder of theoretical law, but it administers *649 practical law, and corrects only such errors as have practically wronged the complaining party.’. . .” ’ Robinson v. State, 229 Ga. 14, 15 (189 SE2d 53).” Stamey v. State, 194 Ga. App. 305, 309 (390 SE2d 409). Appellant having shown no harm occasioned by the trial court’s failure to provide him a transcript of the probation revocation hearing, we will not reverse the conviction.
4. Appellant contends the trial judge erred in refusing to recuse himself, and in failing to refer the matter to an appropriate forum, inasmuch as appellant had sued the judge in connection with this prosecution.
5. Appellant contends the trial court erred in charging on the defense that the arrest was illegal because appellant had committed no underlying offense to justify an arrest.
Appellant has not complied with Rule 15 (a) (1) of this court, which requires a statement in Part One of appellant’s brief, setting forth “the method by which each enumeration of error was preserved for consideration by this court.” However, the record shows affirmatively that after the charge to the jury the trial court inquired of counsel whether there were any exceptions to the charge, and counsel for appellant responded in the negative. If the trial court asks whether there are any objections to the charge, counsel must either state his objections or reserve his right to object on appeal. Laster v. State, 196 Ga. App. 854, 855 (397 SE2d 191). Appellant did neither in *650 this case; he is therefore precluded from raising the objection on appeal. See Wigley v. Hambrick, 193 Ga. App. 903, 905-906 (389 SE2d 763). In any case, the charge was not required to be given because it was not necessary that the State prove the underlying offense, but merely that the officers were acting in lawful discharge of their duties. Whaley v. State, 175 Ga. App. 493 (333 SE2d 691).
6. Appellant contends the State did not prove any underlying offense which would have justified the arrest. In Whaley, at p. 494, we held: “It is not necessary for the State to prove the underlying offense that causes the officers to act; it is only necessary to prove the elements of the obstruction statute, i.e., that the act constituting obstruction was knowing and wilful. ... In [Whaley] . . . there is no question that appellant was acting knowingly and wilfully when he began struggling with the officers. Moreover, the officers were acting within the meaning of the statute since they were attempting to effectuate a lawful arrest.” What this means is that the State need not prove appellant was engaged in disorderly conduct or was guilty of such offense. What is necessary is that the officers were acting in the lawful discharge of their duties when they attempted to arrest the defendant. Whaley, supra; see, e.g., Johnson v. State, 201 Ga. App. 88, 89 (410 SE2d 189). It was proven that the officers were called to the home of appellant and his mother to investigate and handle a violent disturbance, and the jury could not reasonably conclude police were not acting in the discharge of their lawful duties. We find no merit in this enumeration.
7. Finally, appellant contends in three enumerations that he had ineffective assistance of trial counsel. The State first contends that our previous remand with allowance of an out-of-time appeal did not authorize the trial court to hear any other matter. But, it was held in Ponder v. State, 260 Ga. 840, 841 (400 SE2d 922) that “the grant of an out-of-time appeal constitutes a permission to pursue appropriate post-conviction remedies, including a motion for new trial. ... [A] claim of ineffective assistance of counsel may not be asserted in an out-of-time appeal unless appellate counsel pursues a motion for new trial, subsequent to the grant of the out-of-time appeal.” The procedure followed by counsel in this case was correct.
As to the claim of ineffectiveness of trial counsel, the singular contention of appellant is that trial counsel failed to preserve the error of the trial court’s failure to charge on the requirement that the State prove an underlying offense authorizing the police to arrest appellant. Inasmuch as the State did not have to prove the elements of an underlying offense (see Division 5), and appellant was not entitled to the charge, it cannot be said counsel’s performance was deficient in failing to object to the failure to give it or that appellant was prejudiced by such deficiency. See Brinson v. State, 191 Ga. App. 151 *651 (381 SE2d 292). The trial court’s ruling was not erroneous. See Smith v. State, 256 Ga. 483 (351 SE2d 641).
8. We find the evidence in the case to be sufficient to persuade a rational trier of fact of appellant’s guilt of the crimes convicted, beyond a reasonable doubt. Jackson v. Virginia, 443 U. S. 307 (99 SC 2781, 61 LE2d 560).
Judgment affirmed.
Beasley and Andrews, JJ., concur.