Wainwright v. StateWainwright v. State
- Reporters:
- , , ,
- Before:
- Beasley
Wainwright was convicted of six counts of aggravated assault with a deadly weapon.
The offenses were committed in the early morning hours on February 2, 1992. Wainwright, his friend Stephens, and another friend arrived at a local establishment shortly before closing time. Bobby Ingram and a number of his relatives and friends were there playing pool and drinking. Ingram suggested that his party adjourn to his home. The evidence is in conflict as to whether Wainwright and his two friends were invited as well, but they went with the others to Ingram’s trailer and were not prevented from entering. An argument later developed between Stephens and Ingram, and Ingram asked Wainwright and his friends several times to leave.
The evidence about what transpired thereafter sharply conflicted. Wainwright testified that he and his friends were in the process of leaving when the host and a number of the guests, armed with various weapons and household implements, attacked him. The State’s witnesses all testified that they had been unarmed and had not provoked Wainwright, and that after Stephens and one of the other guests began scuffling, Wainwright attacked several of those present with a metal level taken from his truck. Several of them suffered severe beatings, and at least one sustained broken limbs.
1. At Wainwright’s request, the court charged the jury on self-defense. Wainwright also requested a charge that a person is justified in using force against another to the extent that he reasonably believes that such force is necessary to defend a third person. Arguing that he assaulted the victims only in defense of Stephens, Wainwright contends the court erred in refusing to give this requested charge.
“A request to charge must be legal, apt, and precisely adjusted to some principle involved in the case, and be authorized by the evi
Although Wainwright asserts that some of the testimony given by the State’s witnesses may be construed as consistent with the theory that he assaulted some of the victims with the level in defense of Stephens, his own testimony on cross-examination contraindicates any such motivation. The prosecutor asked Wainwright specifically: “I want to make sure, you’re not saying you hit any of these people because you were defending Steve?” Wainwright answered: “No, sir, I was defending me.” This answer was reinforced and repeated several times. Given Wainwright’s clear testimony in this regard, the trial court did not err by refusing to give the requested charge. See Smith v. State, 260 Ga. 274, 276-277 (5) (393 SE2d 229) (1990); Jirles, supra.
2. Wainwright’s next two enumerations of error are directed at his sentencing as a recidivist under
(a) Citing
Riggins v. Stynchcombe,
231 Ga. 589 (203 SE2d 208) (1974), he maintains the court erred in sentencing him pursuant to
“Under Georgia’s old two-step felony trial procedure where sentence was imposed by the same jury which decided guilt, it was required that in order for any prior convictions to be considered in aggravation of punishment, they had to be included in the indictment. [Cit.] Since 1974 when Georgia adopted judge sentencing,
In Wainwright’s case, the maximum penalty for one aggravated assault was twenty years.
Jenkins v. State,
201 Ga. App. 654, 656-657 (3) (413 SE2d 460) (1991), cited by Wainwright, indicates that the rule is that the indictment must allege the prior offenses, if they are to constitute the basis for enhanced punishment under
The sentences imposed on Wainwright, 20 years imprisonment on each count, are within the statutory limits for the crimes as indicted, see
(b) Wainwright also contends he did not receive “unmistakable advance warning” as required by
State v. Hendrixson,
supra at 854, that the State intended to introduce the prior convictions in aggravation of sentence. Prior to the selection of a jury on the day trial commenced, the prosecutor provided Wainwright’s counsel with written notice that included the dates of the prior convictions, the nature of the offenses, and the sentences imposed. Both Wainwright and his counsel were given oral notice during the week prior to trial that the State would introduce prior convictions. At the sentencing, certified copies were introduced. It has been held that receipt prior to jury selection constituted timely notice pursuant to
The statute requires that “clear notice” be given. Potts v. State, 241 Ga. 67, 83 (14) (243 SE2d 510) (1978). Hendrixson does not detail what type of notice was given or how specific it was or when it was given; it only notes that the notice was in “compliance.” Hendrixson, supra at 855. Wainwright neither alleges nor shows any harm from any lack of specificity in the notice or from the timing of its giving, so we are compelled to conclüde that the notice received by Wainwright was sufficient.
3. Wainwright enumerates as error the court’s refusal to allow him to testify in his own behalf in mitigation of sentence. The colloquy between his counsel and the court, as revealed by the record, does not support his contention that he was prohibited from testifying.
After the prosecutor had presented evidence in aggravation of sentence, the court inquired whether defense counsel had any evidence to present in mitigation. Wainwright’s counsel responded: “I would assume then that he would have the opportunity to get up here and take the stand and testify maybe as to why he pled guilty, that type of thing?” There ensued some conversation as to whether such evidence would be helpful since, as the court pointed out, the convictions existed and Wainwright could not set them aside. Defense counsel concluded by saying: “No, sir. I can’t imagine any evidence we could offer.”
The trial court did not rule that Wainwright could not testify. Even if the trial court’s comment about the prior convictions was incorrect (see
Potts,
supra at 83 regarding defective convictions), Wainwright did not object or request to make an offer of proof as to the content of his testimony. His response by counsel was merely to indicate that Wainwright had no evidence to offer. This silence deprived
Judgment affirmed.
McMurray, P. J., and Cooper, J., concur.
Notes
Riggins is one of three cases dealt with in the Supreme Court opinion cited. Appellant’s argument actually relates to the positions taken by the other two appellants, Black and Couch. Their indictments, like Wainwright’s, did not allege any prior convictions. They complained that this meant that the grand jury did not expose them to the greater maximum sentences and also that this resulted in their not having proper notice of their exposure to greater maximum sentences. The maximum for one auto theft was seven years, whereas the maximum for a third or subsequent offense was twenty years. Former Code Ann. § 26-1813 (a), (b). Black was sentenced to 20 years and Couch was sentenced to 15 years. Riggins’ indictment, on the other hand, did allege the prior convictions. He complained that they were used to convict him because they were known by the jury which decided guilt or innocence.