*1 Benham, JJ., Carley and February 10, 1987. Howe, Jr., Winn, D. B. appellants. Nicholas Donald Demorest, Henry, Lawrie E. Philip C. TEAT
73159. v. THE STATE.
Sognier, Appellant was under convicted the influence of alcohol and appeals. he In his appellant sole enumeration error contends the by denying request trial court abused its discretion his for a con- pursuant 17-8-25, tinuance OCGA based the absence of a sub- poenaed witness who the was sole witness for the defense.
The subpoenaed appeared witness was in and court on 21, 1986. The case was continued on that date at the absent, State of its witnesses case was and the was re- 13,1986. subpoenaed scheduled for present witness was also, on that date in appear record, but for reasons which do not the mistrial was declared. The by appellant witness was contacted the day before the retrial of the instant case and was advised that his presence in court day. was the next The witness stated present court, would be in but when appellant drove on the morn- ing pick witness, of trial up gone city the in to work another continuance, was not available trial. Appellant requested stating witness would testify only sumed or four night three beers on the his Appellant’s arrest. coun- sel also stated after the mistrial in the was declared first “the was excused.” The trial appellant’s request court denied for a continuance on no ground longer that the witness was subpoena court had no his in attendance court. Appellant this ruling contends was error. nothing
There is
in the record to indicate who excused the wit-
mistrial,
ness
court,
latter,
after the
if
appellant or the
indicate whether the
completely
excused the witness from the
otherwise would
extend
term,
17-7-191; Brady
from term
mony circumstances such not the rea- reflect harmless. The record does mony cannot be called the witness not not mistrial, and does reflect son for the requirements OCGA 17- met at that trial. testified of witness and due the absence to a continuance granting 8-25 its us, that the court lost we cannot conclude the record before thus, appellant’s witness and the attendance par- This request for a continuance. justifiably denied here, a con- where, previously granted ticularly the court true wit- of one of its essential due to the absence tinuance to the State we fairness deem Thus, of that fundamental observance nesses. 219, (see Cal., U. S. Lisenba 314 concept of justice essential to our deny (12) 166)), appel- error to (62 280, LE find SC 86 we 236 lant’s a continuance. J., Deen, J., Carley, P. Ben- Birdsong, C. J., Banke, J., P. Beasley, JJ., McMurray, P.
ham and J., Pope, dissent. Judge, Presiding dissenting.
Banke, was not authorized to majority holds that the trial court . . . from “completely the absent had been excused clude that witness counsel’s power subpoena” on the mere basis defense effect, had excused indicating that statement absent evidence return been instructed to at the witness and whether not required mean trial court was cross- later date. Does this issues? Does it mean that the state examine defense counsel these produce defense counsel’s evidence to substantiate so, proof If in such matters has been statement? then burden of 17-8-25; Alderman v. See dramatically altered. OCGA § (2) (246 642) State, State, (1978); Ga. 241 496 Brown v. 169 SE2d Ga. (313 777) (1984). 520, App. 521 SE2d indeed a valid once presumption
While there is issued, is ended in force from term to term until the case continues (see obviously dispelled be presumption may subpoena. excused from the showing that the witness been I do showing, counsel himself who makes such a Where is defense the absence grant not believe that a refusal a continuance based on to “funda results denial the defendant’s power mental fairness.” If it was not within the
737 this case to show subject original that the witness was still sub poena, certainly then within his simply to have a new him. issued to It was appellant’s responsibility to prepare case for not the state’s I the court’s. would hold that the trial court did not abuse denying its discretion in con motion for Grimes v. 372, tinuance. See generally App. Ga. 168 377 863) (1983); SE2d OCGA 17-7-192.
I am authorized to state that Presiding Judge McMurray and Pope Judge join in this dissent. 14,
Rehearing 11, denied Scott, Howard T. appellant. Stula, Solicitor,
Ken Kristopher Shepherd, Solicitor, Assistant
73186. LAYMAC v. THE STATE.
Beasley, Laymac appeals from the of by conviction two counts of homicide vehicle in the degree by second driving reason of on the wrong side of (OCGA (b) the road 40-6-40), 40-6-393 too fast for §§ (OCGA (OCGA 40-6-181). conditions and speeding 1. He asserts that the trial court improperly commented on the evidence when it charged jury: “Jurors, in regard the photo- graphs that case, have been entered into the evidence in the I charge you impossible difficult and often to obtain a photograph scene an alleged precise occurrence with exactness prevailing.” gist of appellant’s , argument by is that giving this charge, jury essence asked the to excuse the state failing produce what he contends was photograph. a critical This was harm- evidence, ful says, comment on the concentrated a sub- stantial portion of his pro- defense on the fact state did not any duce photograph alleged “yaw vehicle, mark” from his according testimony is a rotating mark tire when left the rear begins vehicle to track the front outside vehicle turn, in a tight causing rotating tire’s wall to pave- side scrub the ment.
It is reversible error for a judge express criminal case to an opinion intimate “In jury issues. OCGA 17-8-57. order to determine whether a trial court has an improperly expressed opinion in its charge as to what proved, charge has not been the whole