*1 82 here, plaintiff where sustained peculiar
It true that harm cars, may injury stepped speeding police when she back to avoid the particular resulting not have been But it is harm foreseeable. foreseeable, may anticipated. so harm long which must be as some be “ may negligence, necessary ‘In order that a be liable in it is not party anticipate been contemplated he should have or even able to particular ensued, precise sus- consequences injuries or sufficient, if, by plaintiff. tained exercise of reasonable It care, might injury the defendant have foreseen that some would result omission; injurious act of a consequences generally from his or that Atlanta Co. might expected.’ Light have Gas nature been [Cit.]” 705) Mills, 690, 51-12- App. 696 OCGA § 9. question,
I believe the make evidence was sufficient to it a court, jury verdict, be approved by the trial should not dis Dillard, 574, App. turbed. Green v.
(1985). Only plainly, palpably “the evidence does not and in where disputably proximate show a lack of is the case not one for the cause” jury’s County Hosp. Theofanidis, decision. Auth. v. DeKalb July Decided
Rehearing July A. Eichelberger, Gwendolyn Tyre, James R. Andrew J. Hamil- ton, Radakouich, Nina M. appellant. for Vincenzi, Long,
Nick appellee. John STATE. WATSON THE Judge. Beasley,
Appellant guilty was found assault aggravated with intent rape. victim appellant The identified young as the man she whom permitted to enter to telephone her home for aid for his disabled car. house, After ascertaining alone in she was assailant chased the face, out porch onto a where he hit knocking her her to ground. He attempted pull house, her into the back tried to shorts, remove her porch and beat her on the head floor before he gave up away. efforts and ran rebuttal,
1. On State called a witness who testified she had appellant received calls from seeking a date earlier that him, summer. When she his age, she tried to after discourage learned which she receiving sexually started suggestive calls appellant. recognized she that of unidentified man whose voice rebuttal witness stated that August, appellant called sometime Although himself, her. re- identified sponded negatively, and asked he could visit she person knocked on her several minutes later recognized seeking glass door, The woman directions and a water. entry. and refused the visitor The trial voice as testimony transaction, court admitted the over as evidence of a similar *2 appellant’s objection.
Generally,
of criminal acts
the defendant is irrele-
place
vant and inadmissible because it tends to
the defendant’s char-
independent
acter in
offenses
24-2-2.
evidence. OCGA
evidence of
was,
fact,
shown
is admissible
that the defendant
in
perpetrator
independent
of the
offense and there is a “sufficient
similarity
independent
or connection between the
crime and
of-
charged,
proof
prove
fense
of the former tends to
the latter.
only separate
[Cit.] . . . The
crimes which are admissible are those
logically
that are either similar or
connected
the crime
for which
being
defendant is
tried. Crimes which are not similar or which are
logically
being
connected to the crime for which
tried
defendant
Johnson,
should be excluded from
State
evidence.”
v.
The second is rather Both involved the August mind that both visits occurred 1984. the homes of women older following same factors: uninvited visits very defendant, defendant but not than which women were known to (the him closely on seen a number of the case trial had worked); reasons plausible, she innocent times store where homes; entry into the loss of cour- given gain permitted effort premises efforts when age and abandonment of and retreat from resisted; women sexual desire exhibited. foisted in We When the facts of the regard. find no error other “ sufficiently connected to the facts of the crime stance ‘are similar or ” “ motive, identity, plan, charged,’ prove the other is admissible ‘to ” State, Hill scheme, mind, bent of or course conduct.’ (1985); Perry State, App. Ga. Hunter v. 177 Compare App. 326 identity presented. The defenses of alibi and mistaken
Then, in closing argument, objected connection with state to de- plan specific identity fense counsel’s cases of mistaken comment personally which he experience knew about from his or had read about, presumably newspaper The court limited ar- articles. gument experiences everyone but common disallowed instances *3 requiring a recitation of in facts not evidence which concerned cases not of common knowledge. pursued the matter Counsel the outside presence jury, Daniel, Prac., and a discussion of Ga. Crim. Trial (pre-1984 ed.), 23-5, The court into ensued. also took account the § American Bar Association Standards concerning Func- Defense (1982). in argument tion to jury, the 4-7.9 Its remained ruling § steadfast, limiting argument on facts outside the record to matters public common knowledge.
Having considered counsel’s stated intention the basis for and the ruling, court’s we find no error.
Evidence of the specific cases counsel to talk wished about would totally have been if during they irrelevant offered the trial because were not related to this case. they Nor were “well-established histori- facts,” cal facts which were public knowledge. matters of common In- stead, they were may cases about which the facts well have been in dispute. It is true that “the right ‘open far-ranging . . argument’ and . —
belongs parties both right defendants also have argue the ,” recently reacknowledged Supreme in Court Walker the 254 Ga. Yet right counsel, circumscribed. OCGA prohibits 17-8-75 hearing jury, from making “statements prejudicial matters are which evidence.” 3. The charges given after began deliberations evidence, enumeration, newly final relating correct. The discovered require does not a new trial. Banke, Deen, J., J., J., P. Judgment McMurray, C. P. affirmed. J., JJ., Deen, J.,
Birdsong, Carley, Pope, P. Sognier, P. and concur. Benham, J., specially. also concurs dissents.
Deen, Presiding Judge, specially. concurring concurring fully majority While I opinion, also concur specially make the following observations.
1. Concerning the contention that the trial erred disal- court lowing the during closing counsel argument highlight reported facts of certain and celebrated historical cases media, “[a]mple news it should opportunity be noted that for full ar- certainly gument important right parties, an case, criminal, the main of a trial civil the denial would furnish reason, generally, sufficient for a ... stage new trial. In of litiga- that tion, clearly even where the merits are he against losing party, should having have such mental satisfaction as he could derive speech. slaughtered finished He should not be with his address bosom, warm his being finally alive and undelivered. His case lost, forever argument unheard, perhaps, with his he feel would feel, justly hearing sometimes outrage deciding without greater, greater, calamity him was far than the of the adverse decision might get justice, itself. He but with it a wound from court more administer; painful any justice than court could for it is not impossible may a suppressed speech more occasion mental tor- Early Norton, ture than & Lane Oliver a lost case.” & (1879).1 Nevertheless, closing still argument curtailment remains example, within State, discretion the trial court. For Jordan (1984), this court held the trial court did not abuse its discretion in allowing prose- “Gracy cutor to refer some fellow” in Chicago. Similarly, case trial court’s such disallowance of in this case was no any abuse the broad discretion court. In possessed the trial *4 1 These, course, Bleckley, legendary Logan are the words the E. Justice whose bust appears Bleckley perhaps Georgia’s Building. in the rotunda of our State Judicial was most jurist, mentally. tall, physically Standing remarkable both six feet five inches he had a long grey shoulder-length hair; bench, following almost from on beard and his retirement the City lawyers, one occasion he travelled to New York to advise a conference of New York who Grice, later exclaimed that he looked like like See “The Santa Claus but talked Blackstone. Journal, All,” Georgia 1967). (August State Bar Tallest of Them He lived to 53 be almost years old; remarried, age marriage. resulting from 80 at the he with five children (Five well.) judicial marriage discharged duty children born of his first He his with fortitude, pain cot, presiding admirable occasion court while stretched out in on a ow ing Bleckley, Logan to a bad back. See Memorial E. of Honorable in this event, of the case any error in disallowance the harmless, as the was over- have classified evidence surely would to be chased, to had her ground, knocked the whelming that the victim was sexually appel- the assaulted porch, beaten on the and was head lant. the of similar correctly
2. The trial also admitted evidence court mind, identity, his appellant acts attributed to the to show bent (1) intent, making sexually suggestive The etc. various acts night,” for the calls, my gets as “hear voice where he balls off such date, personal during which making for a visit asking water, directions, attempts get glass one then asks house, sufficiently permission to seeking similar to one’s inside the are make assault on telephone proceeding use and then a sexual when that she was alone. he determined Judge, dissenting. Benham, states law on the of similar majority correctly
The admission apply acts but then fails it to the case at bar. admitted, independent
In order for of an offense to be similarity there must be a or connection between inde “sufficient pendent proof crime and offense of the former tends charged, only separate crimes which are prove the latter. [Cit.] or logically admissible are are similar connected to those that either for which is tried. which are being crime defendant Crimes not logically similar which crime for are not connected is defendant tried should be excluded evidence.” State (1) (272 321) (1980). Johnson, 246 Ga. position
I
agree
majority’s
proper
admit
the rebuttal
of the method
used in an
appellant
witness’ recitation
attempt
gain entry
to her home since it was similar to the means
gain entry
question
used to
into the victim’s home.
addressed
the case at bar
whether the act of
majority
suggestive
sufficiently
making
telephone calls to a woman
similar or
attempted rape
proof
connected to the
of another woman so
prove
former tends to
the latter. The State
the two acts
suggests
are “logically connected” because each involved “sexual overtones.”
52) (1975).
State,
See
Jessen
I also disagree majority’s that the trial court conclusion not err argument did when it coun- closing limited the attempt sel. “These bring comments were not an facts not evidence, are, suggest persons but at [innocent times, wrongfully eyewitness convicted on the basis of erroneous iden- find is well complaint We of which made tification] permissible attorney] simply within bounds. The [attempted [defense argue] arising and reasonable inferences there- (323 Jordan (2) . . .” from.
(1984). What Jordan should be goose is sauce for the sauce for the gander the case at bar. I error limit believe was defense coun- sel’s closing argument. July Decided
Rehearing July
Wade Crumbley, M. appellant. Smith, Byron E. Attorney, Floyd, District Thomas K. Assistant District Attorney, for appellee. In re B. D. C.
Benham, Judge. surviving parent a five-year-old brings appeal child from a custody Gwinnett Juvenile Court granting temporary order his child to its grandparents. Appellant maternal contends the court (1) particulars: erred several his denying custody request; find- abandonment; ing terminating parental rights. his
As to custody, the issue of begin we our review of the facts with principles several firmly that are “Upon fixed law of this state. parent, the death of either is custody survivor entitled to child; provided, however, court, upon petition, may exercise discretion custody child, as to the solely looking to the child’s interest and welfare.” OCGA surviving parent 19-9-2. “[W]here custody sues obtain her minor party child from third physical, child, who has but legal, custody parent custody by entitled to unless it shown clear evi convincing parent dence that right parental custody has lost his con trol Miele abandonment of the child or legal ground.” other Gregory, Here, petition brought by Miele the maternal grandparents. logic proof requirements convinces us should be no less when the petition is brought party. a third