*1 Daniels v. trial,
4. At the robbery one of the armed victims testified that she had not noticed having weapon Clark’s at the time of the rob- bery. Because of that Clark contends that the evidence may support a conviction robbery, for robbery not for armed count. See Hicks v. contention, His however, overlooks his own confession in which he ad- mitted committing the robbery armed a handgun, a fact which corroborated the testimony grocery of another employee store actually who gun had the held to her back Clark. Carley Sognier, JJ., concur. affirmed. —
Rehearing denied October Sacks, Robert C. for appellant. III,
Thomas C. Lawler District Attorney, Allyson Baillus, F. As- sistant
77083. MARTINEZ v. THE STATE. Judge.
Sognier, Francisco Martinez was convicted of the offense aggravated as- sault and he appeals.
1. Appellant contends the trial court erred refusing to allow him question Edward Hoffman regarding general reputation victim, Smith, Robert impeach order to Smith. The trial court refused to admit this evidence based on the fact that Hoffman and Smith were inmates incarcerated at Georgia State Prison in Reidsville where the assault on inmate, Smith occurred. Appellant is likewise an serving year a 20 sentence for robbery armed year and a 10 sentence aggravated proffered assault. The evidence showed that Smith has a bad prison.
At Smith appellant testified up ran behind while Smith was lending magazine Nelson, co-defendant, Gustavo and that appellant repeatedly stabbed Smith in the back and the head while Nelson him. held Nelson testified he present was not when started, but shortly arrived thereafter. Appellant testified that after he had seen possession Smith in personal of some items taken day before, cell the appellant approached Smith and told him to return his belongings. Appellant stated Smith then cursed him pulled piece wire, out handle, rag with a for a which Smith weapon against appellant. Appellant used as a Smith stabbed him twice in the testified that after ap- legs,
head and three times pellant managed get weapon away they struggled from him as appellant on the floor and that then stabbed Smith in self-defense. they various other witnesses at trial testified to what saw *2 fight stopped, anyone before the there was no fight who had observed the start of the and no evidence was adduced that corroborated either Smith’s or version as to how why began.
The record thus reveals merits of self-defense charge against claim, him, his sole defense to the could have been solely by weighing credibility appel- determined lant’s testimony against credibility of Smith’s “As a general may particularly conflicting, party rule, and when the evidence is any might
show fact or circumstance that aifect the credit of an opposing (293 (4) Arnold witness. 13 501) (1982). “Impeachment process whereby is the an attack is credibility (2nd ed.), Agnor’s made on the § of a witness.” Ga. Evid. credibility appellant sought 5-1. the witness whose to attack victim, “where, here, was the witness, the ‘victim’ can be and is a subject impeachment, ‘by he is as would be evi- general dence Ga. as to his bad character.’ Ailstock v. We note that this is not a sequence questions case which the § under OCGA 24-9-84 was improperly compare Harper (3) asked, 28) (1981), impeachment testimony or where the either re- specific lated to inadmissible acts or was not material because no ac- Compare tual conflict existed the evidence. at 483- arguments why impeachment Two have been set forth as to evidence argues to introduce was not admissible. The State impeaching by repu- before this court that evidence a witness only reputation community tation is if relevant it is the witness’s in a neighborhood consisting abiding penal of law citizens. Because a composed type institution of convicted felons cannot be the of honest upright “community” “neighborhood” required pur- poses argues repu- § 24-9-84, of OCGA the State evidence of Smith’s tation therein was excluded. provides: may impeached by §
OCGA 24-9-84 “A witness be evi- general impeaching dence as to his bad character. The witness should questioned knowledge general first be as to his character of the lastly may witness, next as is, to what that character he be asked if Nothing from that character he would believe on his oath.” impeaching testimony solely this sectioñ indicates that the is limited reputation challenged neighborhood witness com- posed which abiding place of law citizens. to ascertain “[T]he place people, generally, man’s is the where have had true opportunities forming a correct estimate of his best character. not, instance, every It is obvious that this be the neighborhood Reynolds, R. Co. v. Atlantic &c. where a man’s home is situated.” Pethel v. SE App. 8, 10 “neighbor- that Smith’s fact is the penal hood” he is institution is incarcerated and which composed of negate pe- his fellow inmates does fact that nal place people institution is the where opportu- the best nity form a correct for the estimate Smith’s character. Co., Atlantic R. case,” at 48 “exceptional see (1), “neighborhood” is the penal institution where he is incar- and we merit in argument. cerated find no the State’s argument, The other upon by relied trial the State’s to this premise is based since all the subject inmate-witnesses for their Beasley (see crimes 560) (1983)), showing con- general victed felon’s fellow among his convicts was bad *3 oath, that his incarcerated cellmates would believe him not under was not relevant and not jury. could be considered the the Under presented by however, circumstances appeal, agree we do not with the trial court that
to introduce was irrelevant and “an waste of absolute time.” jury was this case well aware all the that assault, as well as most of witnesses at felons. convicted jury aware, was also from the charge, trial court’s witnesses that convicted of crimes unworthy are belief. However, despite jury’s knowledge testimony by all of the untrustworthy, convicts was with was nevertheless faced conflicting testimony on a required material issue deter- it to believe, mine which convict say Smith or We cannot under these circumstances the fact that Smith’s was among bad even jury’s his fellow inmates would not affected the consideration of the given credit to be the trial order court’s State’s
“ (the ‘the introduction offered evidence of victim-witness’ character) (for bad which would otherwise be admissible impeachment) . . . at 483. was erroneous.’ testimony “The exclusion of the of this on character based ground the sole among a convict other [of convicts] error; considered, and, cannot be importance was view necessarily sought impeached, of the witness to be Pethel, (1). harmful a reversal of the at demands case.” Gilstrap State, 816-817 v. 250 Ga. appellant’s surrounding mo- factual circumstances 2. Since the present upon retrial, need not ad- we for continuance will not be tion presented in second that motion as dress the denial of enumeration. As to regarding trial court’s enumeration during leg requiring trial, it is well irons while to wear order established that “the jury, presence accused, prison wearing guilt shackles indicia of such should be free of garb, thing any- security personnel, being uniformed surrounded presumption might infringe that he is inno- else that App. 482, Collins v. cent. always restraining devices does While the use holding dimensions, id., the cases no constitutional amount to error of error was detailed, always presented relied on such devices have the use of evidence set forth in the record to demonstrable presumption infringement by, of inno- the court on the defendant’s e.g., See, cence. 874) (1984) (court Dennis struggled had recited facts that convict-defendant plus jury guards arraignment officials; and insulted court charge subject); Thomas v. 511) (1984) (defendant escaped twice from SE2d county three times: irons). Upon
jail leg retrial and once from courthouse while comparable above should of this circumstances to those set forth leg clearly elevating use of be demonstrated in the record to avoid restraining irons or sions. See error of dimen- devices to constitutional (1) (b) (225 89-90 Carley, J., Deen, J., concurs reversed. concurs. specially. Presiding Judge, concurring specially.
Deen, fully except I Mc can concur with this case for the citation of (1) (b) (225 Kenzey *4 Judge relegated In Quillian the latter case it to the status of physical precedent only by judgment only, voting, “concurs in the not with all of the made therein.” statements knowing precisely disagrees
Not in the with which statements he rely upon case, cited I am not it in the case sure we could or should judice, sub our the cloud or shadow of fall rendering suspect. instant it
Hugh McCullough, J.
Dupont Cheney, Attorney, Walker, K. David C. Assis- tant District
77109. PEACHTREE PURCHASING COMPANY v. CARVER. Presiding Judge.
Banke, (Peachtree) Purchasing Company Carver sued Peachtree to re- alleged pursuant “Employment cover monies owed him to an Termi- Agreement parties. nation and Release” into entered Peachtree allegations counterclaimed based on same ship that Carver had breached the agreement wrongfully appropriated and had a business relation- with one of its customers. A Carver, found in favor of awarding damages, plus prejudgment $43,750 $12,582in inter- attorney appeals. $35,590 est and fees. Peachtree evidence introduced at construed favor of the ver- following findings. dict, authorized the factual Peachtree is one of a companies number of Portman, Jr., controlled John and is purchasing equipment business of furniture, fixtures, and for hotels. company years Carver had worked for the for seven and had served as president years, its when, for the last three of those in December of by Stanley Steinberg, 1982, he was informed a senior officer management companies Peachtree, Portman and a director of brought presi- that someone else would be in to serve as Peachtree’s responded stay dent. Carver that he would be unable to with the com- pany January circumstances; under those 29, 1983, and on he and “Employment Agreement Peachtree entered into the Termination litigation agree- and Release” on which this is based. Pursuant to this ownership rights ment, Carver abandoned all interest and in the com- pany agreed Purchasing, good reputation to “maintain and corpora- Portman, Jr., Peachtree of John C. and of the partnerships, tions, and other business activities which John C. family presently Portman, Jr., or member of his immediate has ownership agreed an payments return, . interest. . .” In Peachtree to make totaling agreement specified $43,750. to Carver further “consulting agreement,” that the were to enter into a specified. terms and conditions of which were not agreement signed, At the time the termination Peachtree was for a hotel which was seeking being paid project purchasing agent to be hired as the company already being built in was, fact, San Francisco. The perform preliminary certain services connection with this opened large part upon
and had a West Coast office based in expectations regard. good its efforts and in this Because Carver had a