Eddie Lawrence Williams was indicted and tried for two counts of burglary; he was convicted of Count 1 but found not guilty of Count 2. He appeals his judgment of conviction and sentence. Held:
1. The indictment for Count 1 burglary pertinently avers that appellant, on March 16, 1991, did “then and there unlawfully and without authority and with intent to commit a theft therein entered the building known and used as Lillie Cooper School, 1051 Augusta St., Dawson, of Terrell County, Georgia, the owner thereof.” The indictment does not aver that any specified property was stolen, and if it had, it would be surplusage.
Davis v. State,
On appeal the evidence must be viewed in the light most favorable to support the verdict, and appellant no longer enjoys a presumption of innocence; moreover, an appellate court determines evidence sufficiency and does not weigh the evidence or determine witness credibility.
Grant v. State,
2. Appellant claims the trial court erred in refusing to allow the jury to rehear certain evidence. In support of this contention, appellant cites this court to
Byrd v. State,
The record reflects that after commencing deliberation the jury informed the trial judge they had “a question about the initial call . . . that was made by . . . David King.” No request to review any particular testimony was made in regard to this particular question. The trial court in essence responded by informing the jury that as to questions of fact they needed to resolve the matter among themselves. The trial court then addressed the prosecutor and defense counsel by name. Appellant’s counsel, in apparent anticipation that the trial court would inquire whether there was any objection to the explanation given, interrupted the trial court and said, “No, sir, we don’t. . .
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the facts speak for themselves as in the record for the jury.” Thus, appellant acquiesced in the trial court’s response to the jury regarding the call of David King. See
Harmon v. State,
The jury also requested to hear the tape of appellant Williams’ testimony again. The trial court noted that there exists some question whether rehearing the testimony would place too much emphasis thereon to the jury. Thereafter, the trial court denied the request for an immediate rehearing of the testimony, stating: “Now if you can . . . you all go in and continue . . . your deliberations and then we will . . . pursue that point out here. . . .” Appellant entered no objection on the record to the procedure used by the trial court in disposing of this matter.
“ ‘Reopening evidence is in the sound discretion of the trial court and will not be disturbed when no abuse of discretion is shown.’ ”
Smith v. State,
3. Appellant, citing United States v. Amaya, 509 F2d 8 (5th Cir.) and Burroughs v. United States, 365 F2d 431 (10th Cir.), asserts that the trial court erred by giving a “time fuse” charge to the jury.
At approximately 5:36 p.m., the trial court, without objection thereto by appellant, sua sponte supplied the following procedural in *447 struction to the jury after being informed that the jury was making a little progress but was not very close to a verdict: “Well, what I’m going to do is I’m going to let you deliberate until 6:00 and at 6:00 o’clock if you have not reached a verdict I’m going to bring you back out and let you go home and we’ll come back ... in the morning. I don’t see any sense in staying here late tonight. But with that instruction you all can return to the jury room and deliberate until you have reached a verdict or until 6:00 o’clock, whichever may occur.” At 5:50 p.m., the jury returned a unanimous verdict of guilty of Count 1, burglary, and not guilty of Count 2, burglary.
The case of
Amaya,
supra, and
Burroughs,
supra are factually distinguishable from this case and are not controlling. In
Burroughs,
supra at 434, the trial judge coupled a form of dynamite charge with a charge which in effect entreated the jury to strive toward a verdict by a certain time. The court concluded that the charges viewed in totality “are subject to the clear inference that the judge was unduly anxious to conclude the lawsuit.” In
Amaya,
supra at 10-11, the trial court gave a dynamite-type charge and then gave the accompanying time constraint comment which inter alia informed the jury that one other jury had been allowed to deliberate for nine days before they finally reached a verdict. The court concluded that “it is reasonable to infer that the jury in the instant case may have taken from the judge’s remark that he was anxious to conclude the lawsuit.” No similar charges were given in this case. We are satisfied that the charge of the trial court, as given, created no fair risk that the jury would feel pressured to reach a verdict by 6:00 p.m., or that the charge conveyed to the jury any anxiety on the part of the trial court to conclude the lawsuit. Rather, the charge here given, when viewed in its totality and in relationship to the circumstances confronting the trial court, can reasonably be inferred only to have given the jury administrative guidance as to how long they would be allowed to continue deliberation that evening. Nothing in the charge constituted a form of “verdict urging,” and the charge contained no express or implied threats to the jury either that they might be held captive for days until a verdict was reached or that a mistrial might be forthcoming if a verdict was not promptly announced. The trial court exercises wide discretion in controlling and regulating the business of the court, and appellate courts should never interfere with the exercise of this discretion unless it is plainly apparent that wrong has resulted from the abuse.
Gwinnett County v. Vaccaro,
Judgment affirmed.