401 S.E.2d 758 | Ga. Ct. App. | 1991
Lead Opinion
Defendant Quick appeals his convictions of two counts of armed robbery, two counts of aggravated assault, and one count of possession of a firearm during commission of a felony. Held:
1. The first enumeration of error complains of the trial court’s denial of motions for mistrial predicated on the district attorney’s cross-examination of defendant. However, following defendant’s refusal to answer certain questions the trial court, acting on the State’s motion to strike, directed the jury to disregard every question that had been asked of defendant and to disregard every answer given by defendant. The grant of the motion to strike defendant’s testimony has not been enumerated as error. Furthermore, defendant did not renew his objection following the instructions to the jury. Under these circumstances, even if the State’s questions were improper, the error was cured by the trial court’s instructions. Hilburn v. State, 166 Ga. App. 357, 358 (2) (304 SE2d 480).
2. The second enumeration of error contends the jury improperly considered certain extra-record evidence. In support of defendant’s
“Where a motion for mistrial is made on the ground of inadmissible evidence illegally placed before the jury, the corrective measure to be taken by the trial court is largely a matter of discretion, and where a proper corrective action is taken and no indication of an abuse of that discretion appears, the refusal to grant a mistrial is not error. Osteen v. State, 83 Ga. App. 378, 381 (63 SE2d 692).” Waters v. State, 168 Ga. App. 918, 920 (310 SE2d 774). See also Jones v. State, 139 Ga. App. 643 (1), 644 (229 SE2d 121). In view of the corrective actions taken by the trial court, there does not appear to be any reasonable possibility that the list, which was briefly placed in possession of the jury, contributed to defendant’s conviction. See Bobo v. State, 254 Ga. 146 (327 SE2d 208).
3. The trial court’s charge to the jury stating the substance of OCGA § 16-2-6 was not improper or burdenshifting in violation of Sandstrom v. Montana, 442 U. S. 510 (99 SC 2450, 61 LE2d 39). See Wilson v. Jones, 251 Ga. 23 (1) (302 SE2d 546).
4. The fourth enumeration of error complains of the denial of defendant’s motion for discharge and acquittal under OCGA Title 42, Chapter 6. First, we note that insofar as defendant’s motion sought to rely upon the provisions of OCGA § 17-7-170, such is unfounded as
5. Defendant’s final enumeration of error complains of the denial of his motion for mistrial predicated on communications in the courtroom between the sheriff and several jurors during a recess in the case. “Where an unauthorized contact or communication is made to a juror, a valid conviction is not otherwise vitiated unless the defendant was actually prejudiced by the communication. [Cits.]” Dudley v. State, 179 Ga. App. 252, 255 (3) (345 SE2d 888) (1986). “[W]here such an improper communication occurs, there is a presumption of harm and the burden is on the State to show the lack thereof. [Cits.]” Jones v. State, 258 Ga. 96 (366 SE2d 144).
In the case sub judice, the State presented the testimony of the sheriff that the topic of the conversation at issue was the poultry business, a subject having no relevance to the case sub judice, and that no mention was made of the case sub judice. The trial court was authorized to conclude that the State had satisfied its burden to show lack of harm to defendant. Jones v. State, 258 Ga. 96, supra.
Judgment affirmed.
Concurrence Opinion
concurring specially.
I concur fully in the judgment, but write specially in regard to Division 2. The transcript reveals that jewelry, currency, an ink pen, and a syringe (items found in appellant’s possession when taken into custody) were inadvertently left in the bottom of a bag containing the State’s exhibit of appellant’s jacket. A list itemizing these extra items was attached to the bag. These items were removed from the jury when the mistake was discovered. The foreperson of the jury then asked the trial judge about the items and was told that the items were not offered into evidence, that they did not go out with the jury, and that the jury was “not concerned with anything that may have been in the bag except the jacket.” When the foreperson argued with the trial judge over whether the items had been admitted, the trial judge strongly admonished the jury that only the jacket was admitted into evidence and that they were not to concern themselves with the other items. When the foreperson later repeated the jury’s question about the contents of the sack, the trial judge instructed them, “Let me put it to you as concise and as distinct and plain as I know how under the
The transcript supports the appellant’s contention that the jury displayed more than a casual interest in the items mistakenly submitted to them and raises questions as to the efficacy of the trial court’s instructions to the jury to disregard those items. However, pretermitting the issue whether appellant waived any objection to the jury’s contact with the list on the bag, even conceding that error was committed when the jury was allowed to come into contact with both the list and the items in the State’s exhibit, that error was harmless in view of the overwhelming evidence of appellant’s guilt. As established at trial, appellant entered the service station operated by Horace Logan and robbed both Logan and his assistant, Andy England, at gunpoint. Appellant then forced the two men outside, still at gunpoint, at which time Logan’s nephew and another man drove up to the service station. The arrivals, alerted by Logan’s shouts, took cover as appellant fired two shots at them. Logan attacked appellant as he was shooting at the arrivals. In the fight appellant struck Logan repeatedly with the gun. The gun was dislodged from appellant’s hand, and he fled to the nearby woods. Logan, unaware appellant was unarmed, retrieved his own gun and with his nephew unsuccessfully tried to find appellant. Returning to the service station, Logan managed to bluff appellant into surrendering by claiming the woods were surrounded. Logan and the other men then held appellant until police arrived. The money taken from Logan and England was found in appellant’s possession, and Logan and the other men at the service station all positively identified appellant as the perpetrator of the charged crimes.
Applying the standard set forth in Johnson v. State, 238 Ga. 59, 61 (230 SE2d 869) (1976), it is highly probable that any error in allowing the jury to come into contact with the items in the State’s exhibit did not contribute to the jury’s verdict. See also Wilson v. State, 145 Ga. App. 33, 35-36 (6) (243 SE2d 304) (1978); Brooks v. State, 236 Ga. 108 (223 SE2d 79) (1976). Therefore, I concur in the majority’s affirmance of appellant’s conviction.
I am authorized to state that Judge Carley joins in this special concurrence.