Seese v. StateSeese v. State
Sеese was convicted of two counts of aggravated assault (OCGA § 16-5-21). He enumerates as error the trial court’s failure to give, sua sponte, jury charges on alibi and identification. Seese also claims ineffective assistance of counsel.
On December 6, 1995, at about 11:00 p.m., Seese walked along a sidewalk toward a car parked in the parking lot of Applebee’s Restaurant on Marietta Parkway. The car was occupied by Charman Hob-good and William Young, both of whom had just returned to their parked car from Christmas shopping. Hobgood saw Seese approach ing and noticed he had a gun in his hand. When Seese passed in front of the car, just a hood-length from Hobgood, he raised his arm and pointed the gun tоward the windshield. Hobgood exclaimed: “That man’s got a gun!” Young told Hobgood to act like she did not see Seese. The frightened couple pretended to be kissing, hoping that Seese would ignore them and walk on. Young saw Seese walk to some bushes and aim the gun at him and then at Hobgood. Seese repeated this motion and then walked away. Hobgood and Young called the police.
The police immediately suspected Seese, who lived in a house behind Applebee’s аnd was arrested in 1993 for carrying a gun on the restaurant premises. Young was able to pick Seese out of a photogrаphic line-up and to identify him at trial. Hobgood identified Seese at trial but could not make a positive identification frоm police photographs.
Seese testified that he was not at Applebee’s on the night of the assault. He claimed to have been at O’Shea’s bar, located near Applebee’s on Franklin Road, from 10:00
1. In his first two enumerations of error, Seese contends the trial court erred in failing to give a jury charge on his sole defense of alibi. The court did not give a charge on alibi because, although Seese’s attorney initially requested the charge, he withdrew it. Seese’s attorney did not reserve exceptions to the charge as a whole when the court inquired.
Seese waived any right to enumerate this as error. “ Tn order to avoid waiver, if the trial court inquires if there are objeсtions to the charge, counsel must state his objections or follow the procedure . . ., of reserving the right to object on motion for new trial or on appeal.’ ”
1
Here,, as in
Phillips v.
State,
2
defense counsel neither objected nor reserved the right to later object. “ ‘[Ujnder such circumstances, (appellant) has waived the right to raise the issue on appeal.’
Jackson v. State,
Moreover, alibi is not an affirmative defense, either under statute or common law. It generally challenges the assertion of defеnd ant’s presence at the scene of the crime, 4 obviously a necessary element. As established in Rivers v. State 5 it was not error for the court to fail to charge specifiсally on alibi absent a request. 6 The rationale is that “since the true effect of an alibi defense is to traverse the stаte’s proof that the defendant committed the crime, the charge that the burden is on the state to prove that the dеfendant committed the crime beyond a reasonable doubt itself necessarily covers the question of whether the еvidence of alibi was sufficient to create a reasonable doubt.” 7 We have held that even if alibi is “the sole defense,” a request must be made. 8
2. The second enumeration contends the trial court erred in failing to give a charge on identity. Seese neither requested the charge nor reserved exceptions to the charge as a whole when the сourt inquired. Again, he failed to preserve error, if any, for our review. 9
3. Seese argues for the first time on appeal that he was denied effective assistance of counsel because his trial attorney did not request jury charges on alibi or identity and failed to reserve exceptions to the charge. Following his trial, Seese was appointed new counsel who filed a motion for new trial. The motion, which did not allege ineffective assistance of counsel, was denied. Seese then filed a motion for reconsideration and argued that he was denied effective assistance due to thе failure to request a jury charge on the misdemeanor offense of pointing a gun at another, OCGA § 16-11-102. The court denied the mоtion, which ruling is not appealed. There is now new counsel yet again.
“[Seese] through appellate counsel raises a second claim of ineffective assistance of counsel against trial counsel, basing that claim on grounds which are different from those supporting the original claim of ineffective assistance. ... A defendant has an obligation
Judgment affirmed.
Notes
Phillips v. State,
Id.
Id.
Johnson v. State,
See
Griffin v. State,
Rivers, supra at 300; OCGA § 5-5-24 (c) is not implicated.
Johnson, supra.
Hamby v. State,
Hayes v. State,
Bailey v. State,