Thaxton v. StateThaxton v. State
- Reporters:
- , ,
- Before:
- Pope
Norman Ellis Thaxton, Jr. was indicted for murder (
1. Defendant’s first and second enumerations of error in essence challenge the sufficiency of the evidence to support the guilty verdicts returned on the charges against him. Construed most strongly in favor of the verdicts, the evidence showed that Willie Battle, the victim, and Nathaniel Respress, a person defendant knew “pretty well,” got into a fight in front of Jeanette’s, a place near Roberta in Crawford County where patrons “dance and drink and play games.” Defendant succeeded in eventually breaking up the fight. Defendant’s statement to police following his arrest (although repudiated by him at trial) indicated that Battle beat Respress badly, and that Respress “got back in [defendant’s] car [and] said, ‘Pm going to get my gun and kill his ass.’ ” Defendant drove Respress home, where Respress obtained a shotgun and returned to defendant’s car stating, “Carry me back over to Jeanette’s.” They returned to Jeanette’s where Respress shot and killed Battle. Defendant then took Respress to his aunt’s home in Jackson, Georgia. Defendant left and was arrested in Monroe County while returning to Roberta.
Defendant was jointly charged with Respress for Battle’s murder. “Even though [defendant] may not have inflicted the fatal wound, he
Having found sufficient evidence to affirm defendant’s conviction of voluntary manslaughter, we are compelled to reverse his conviction of hindering the apprehension of a criminal. We agree with the State that the crime of hindering the apprehension of a criminal is not included within the crime of murder, see
Moore v. State,
240 Ga. 210 (1) (240 SE2d 68) (1977);
Pressley v. State,
207 Ga. 274 (5) (61 SE2d 113) (1950), or of manslaughter, see
Moore v. State,
94 Ga. App. 210, 213 (94 SE2d 80) (1956). However, “[a] person commits the offense of hindering the apprehension or punishment of a criminal when, with intention to hinder the apprehension or punishment of a person whom he knows or has reasonable grounds to believe has committed a felony ... , he: (1) [h] arbors or conceals such person; or (2) [c]onceáis or destroys evidence of the crime.”
2. Defendant’s third enumeration posits two arguments assigning error to the trial court’s admitting into evidence certain statements made by defendant to the police following his arrest. As to defendant’s alleged intoxication, we find no error in the trial court’s finding that although defendant had been drinking earlier on the night of the shooting, his observed behavior at the time the statements were made (shortly after his arrest and again several hours later) “was not inconsistent with the ability to freely and voluntarily waive rights for the purposes of making a confession. [Cit.]” Smith v. State, 141 Ga. App. 720, 721 (234 SE2d 385) (1977); accord Carter v. State, 257 Ga. 510 (3) (361 SE2d 175) (1987); Allen v. State, 231 Ga. 17 (2) (200 SE2d 106) (1973), cert. den., 414 U. S. 1159 (1974).
We likewise find meritless defendant’s assertion that the second interrogation of him by police was conducted after he had told them he did not wish to talk with them. Counsel on appeal correctly notes that trial counsel raised no objection on this ground in the court below. “It is well settled in this state that while evidence may be subject to objection, yet if the only objection made was not properly sustainable or not made on the proper ground, no reversible error is committed by the trial court in allowing the evidence to be submitted to the jury. [Cit.] Thus what would perhaps otherwise be a valid reason why evidence should not be admitted will not be considered on appeal unless that specific reason was urged below. [Cits.]” Moore v. State, 176 Ga. App. 251, 252 (335 SE2d 716) (1985). This rule applies to confessions and/or incriminating statements, objections to which may likewise be waived through nonobjection at trial. Reeves v. State, 241 Ga. 44 (1) (243 SE2d 24), cert. den., 439 U. S. 854 (1978); Abrams v. State, 223 Ga. 216 (9) (154 SE2d 443) (1967); Hill v. State, 214 Ga. 794 (1) (107 SE2d 662) (1959).
3. Finally, we find no merit in defendant’s challenge to the trial court’s charge on impeachment. Although the language of the charge has been disapproved and trial courts urged to discontinue its use, the charge provides no basis for reversal on constitutional grounds. Noggle v. State, 256 Ga. 383 (4) (340 SE2d 175) (1986). In any event, trial counsel’s negative response to the trial court’s inquiry concerning objections to the charge raised “a procedural default which bars subsequent appellate review of the charge.” Rann v. State, 183 Ga. App. 234, 236 (358 SE2d 644) (1987); Kelly v. State, 174 Ga. App. 424 (4) (330 SE2d 165) (1985); see also Gaines v. State, 177 Ga. App. 795 (1) (341 SE2d 252) (1986).
Judgment affirmed in part and reversed in part.
Birdsong, C. J., and Deen, P. J., concur.