*1 suрerior matters, and thus these as to is silent her notes proper. ruling probate presume was court’s entitled court was Burns See viola- a traffic Appellant’s committed he had not that contention Terry stop illegal Ohio, Boyle’s 392 U. S. rendering under tion, probate 889) (1968), court’s is belied 1868, 20 LE2d SC appellant Boyle stopped summary that evidence, indiсates which speeding. for allegation support the su- record does not 5. The impartial from this court perior remand fair and was not guilty before, find this and we once found it had because utterly allegation merit. without Cooper, McMurray, Judgment J., J., concur. P. affirmed. 9, 1992 Decided March denied March Reconsideration Virgil Hearn, Virgil Brown, D. Associates, L. Eric L. Brown & Bentley Allen, III, Anne C. C. Adams McBerry, Attorney, Tommy Floyd, R. Assis- Thomas District K. Attorney, appellee. tant District v. THE STATE. FERRELL
A91A2074. Judge. Pope, of viola- four counts C. Ferrell was indicted on Defendant Charlie Georgia took action Act. The State Controlled tions of the to sever the trial Substances 4. 3 and the trial of Counts
of Counts and from charges in Counts contained convicted of the Defendant was appeals. by denying his First, trial court erred defendant asserts the is the indictment Defendant dismiss the indictment. motion to grand jury appearing witness witnesses void because thereby showing was officers, the indictment law enforcement list are testimony. charges solely hearsay in the contained All four based alleged defendant to sale of cocaine indictment relate to confidential “body bug.” The officer with a informant who was wired in- between of the conversations who monitored formant and the defendant ing. transmission proceed- grand at the was a witness competent testify transac- to the as a witness The officer was hearsay. testimony Thus, tions, havе been his would not (2) (a) in Felker v. rule forth to the set prop- 621) (1984), dismiss the indictment motion to competent erly witness was ex- the record shows denied because guilty beyond grand jury. Moreover, “the verdict of amined before a reasonable cause probable that there was doubt demonstrates fortiori charge for which he was con- with the offenses the defendant (Punc- any possible harmless.” Hence, error has been rendered victed. (2) (b) omitted.) Isaacs tuation and citation *2 by denying argues him court erred also Defendant hearing prosecutor opportunity on his as a witness call the to argument We need not address this indictment. to dismiss the motion because clearly beyond scope enumeration of of defendant’s it is 522) 199 Ga. Chezern error. See 25) (1991); Rigenstrup (1990). in this case related to the 1 and 2 of the indictment Counts possession alleged included offense of of cocaine sale and the lesser alleged posses 3 and related to the sale a certain date. Counts sion The State took action to sеver the of cocaine on another date. Typically, and 4. and from the trial of Counts 3 trial of Counts motion to sever separate charge offenses a multi-count trial of Georgia Supreme Court, however, The has is made adopted the defendant. provide ABA Standards on Joinder of Offenses which
certain prosecuting upon application either the of offenses severance “ ‘(i) appropri attorney if before it is deemed or defendant guilt promote fair determination the defendant’s or inno ate to (ii) upon during offense; if the de cence of each or trial consent of necessary fendant, it to achieve a fair determination оf the is deemed guilt defendant’s sider whether innocence of each offense. The court should con or charged view of the number of offenses com plexity offered, will able of the evidence to be the trier of fact be to apply intelligently distinguish the law as to each the evidence and Dingler [Cit.]” offense.’ 463-464 (1975). permitting the State to Defendant the trial court erred application made at sever the offenses because no to sever was or required arraignment to be before the time of made, however, as all motions are Superior above, Rule 31.1. As noted to Uniform Court application may during be made trial the de- an to sever if necessary аchieve a fair trial. fendant consents and it is deemed to Contrary dissenting judges, not to the we do con- conclusion of objection when, severance clude that the defendant waived his to objection hearing severance, to the conclusion of the of defendant’s attorney problem it. “I don’t have a stated: this in the record.” The statement wanted to to immediately preceding light comment be considered of the must going judge, with the trial of the first two referred to forward who merely opinion, the defendant was the indictment. our counts of indicating preserving go while still to forward with trial a readiness attorney clearly objection an stated to severance. Since defendant’s illogical severance, assume the statement was was it is attorney very ruling to the to which the meant to voice consent stating objection. presented argument Moreover, no evidence or whatso- the State necessary promote a fair trial and the trial ever that severance was court made no such dеtermination. asserted the State has an absolute prosecuting attorney
Instead, the right of a to elect to sever counts “try day them a time all multi-count indictment and could one at right long.” instead, and, has such We do not that the State prevail application sever, conclude that as well as the defendant must order to on an nеcessary
show that severance is promote a fair trial. Id. say
We that severance was harmless to the defendant’s cannot prosecute strategy. may The State have chosen to trial separately stronger If because the evidence was on those counts. successfully charges defendant could have and defended the of Counts 3 might proof also have weakenеd the State’s on the first two *3 judgment Thus, counts. the is reversed.
Judgment Sognier, Carley, Cooper J., J., and and reversed. C. P. Birdsong, Beasley McMurray, Johnson, J., J., JJ., P. P. concur. part part. Andrews, JJ., concur in and dissent in Presiding Judge, concurring part dissenting in in and Birdsong, part. opinion; majority however, I concur in I Division of the as be- judgment compelled affirmed, lieve the should be I am as to to dissent judgment Division and as to the of reversal.
Appellant allowing asserts the in the trial court erred State to proceed only to trial on two counts of the as four-count indictment equivalent granting this would be the motion to sever counts against appellant. contained in the indictment by appellant’s 1. The State that this issue was waived fail- objection ure to raise until after the first witness testified at trial. holding majority, Like the regard I in tacit of the would not invoke waiver pre-trial to this issue as the record shows that at a procedure hearing, was discussed and counsel stated thereto. separate 2. While a trial court has discretion to sever the trial of (Lindsey State, in crimes named the same indictment 585)), general there also exists a rule that indictments by by grand jury returned attor- are not amendable the district ney. ing Notwithstand- Kesler it was record reflects that the trial of the contentions unilaterally proceed elected court which not the trial the State if it were an the indictment as as to treat a manner such with trial separated practical only. effect This to Counts indictment court-approved application) (rather to a than severed upon at the State indictment 4 from the Counts expressly that if the State at trial fact, asserted trial. complain counts, as “we can could not elects, “to sever” (I majority day long.” try with the time all one at a them right separate unilat- counts have an unlimited the State does not day try erally at a time all each count one an indictment and long.) would that “we announced” counts The State also asserted right separately, [it] if to sever it “the State has and that be tried wants including responses toto, the record to.” Examination of only application judge, fоr sever- not was no the trial establishes of ance the trial trial court and that it was not ever tendered to the judge severed, who the counts but was State who ordered (Compare the two counts for trial. fact called elected by procedure actually employed ABA state with Standards on upon timely 13-3.1, Offenses, § which authorizes the Jоinder of conditions.) application, grant After the severance under certain inartfully by counsel ob- first witness was called failure, try separation jected all of the counts to the State’s previously unaware that the and asserted she had been counts once separately. Subsequently, try the trial court State intended to speculated counts appellant’s objection good” “is and concluded whether stop prosecution were, that even it it would not of Counts colloquy, which had been called for trial. After additional incidental agreed the trial with a comment the State that there was no appellant’s objection engaging speculation sense as to whether (to counts) agree. separation good, stating: agree. I “I I going (Emphasis I one. . . .” mean think as far as on this forward supplied.) Appellant’s interrupted judge counsel and affirma- tively problem “Right. I don’t have a with it stated on the record: proceeding is, [that 2]. wanted to to trial on *4 (Emphasis supplied.) in the record.” to this appellant’s merit would find second enumeration without independent appellant show, First, as two reasons. has failed to to judice, prejudiced case denied his fair sub how he was or otherwise drug rights merely by being required proceed trial to with trial on two counts be shown to au- rather than four. Harm as well as error must (189 appeal. 14, State, thorize a Robinson v. 229 Ga. 15 reversal on (380 (3) 53); generally State, SE2d SE2d 253). see Tatum v. majority speculate harm as well as
The has chosen to as to how
483 only by proceeding two counts. may to trial on resulted have error purpose regarding be- record, a silent in face of This it does spite strategy, of an affirma- the lack in of and trial hind tive appellant as of been harmed appеllate has as to how assertion participated. very procedure This by in he which this moment speculation defies a verdict type in to overturn order blatant appellate appeal construe the bound to is court an that on basic rule being presumption in every and inference reasonable with evidence Apр. jury’s State, 305 upholding 137 Ga. Mills v. verdict. favor of proceeding 498). acquiesced (1) (223 Secondly, appellant in SE2d causing by in only conduct aided 1 such and trial on expressly with case, so it did called the When the State result. that Appellant’s only raise an respect counsel did not to Counts procedure point objection, record, to this abеrrant in the trial this indicating ready, Honor,” Your “The defense is announced: but implying proceed at least 1 and and trial on Counts to readiness subjected jury willingness to voir The to do so. court a to the trial only counts with the two be held on basis that trial would counsel dire on the appellant’s you panel: stating in which “This is a case Attorney involv- this case is announce that the District all have heard ing charge possession The was selected cocaine.” of sale object appellant’s did not Thereafter, counsel this same basis. only referring expressly opening portion statement of the State’s that responsive being instead made a incident as to the one by By opening сonduct, behalf. statement para- in counsel, discussed detail as comments of graph clearly acquiesced appellant in fact assisted above, in and proceed procedure two to trial on the State’s announced by acqui- precluded appellant is counts. Under such circumstances appeal obtaining election to from State’s relief on escence proceed State, v. 259 Ga. 2. Harmon Counts and to trial on (2) (377 (3) (383 874); State, SE2d Ga. 164 Easterwood SE2d 857). complain appellant Additionally, of a result his “[a]n cannot causing.” procedure Wilburn aided own or conduct (405 889); App. (2) Hawkins v. SE2d Ga. 739 251). (2) majority the same evi- has construed The did not as to find that defеndant record in such a manner dence of apparently procedure, acquiesce con- in the State’s aberrant trial tacitly aid conduct did not that his own cludes my procedure employed view, this defies this case. principle appellate the evidence must view the cardinal sustaining light Ross v. the verdict. most record in favorable of State, App. 418); Grant evidence of record I construe the acquiescing thereby support finding and aid- that such of the verdict *5 appellant. part ing Even the effect of conduct occurred capable appellant is of two differ and trial conduct the statements apparent ing interpretations, the 5-4 dеcision of this as is appellate practice, long-established we should con with consistent uphold the verdict rather than and conduct to strue these statements overthrow supra; supra; Ross, Grant, see Wren it. 146). (196 And, we will not reverse the correct rul SE Tony given regardless ing therefor. of the reason of a trial court 557); (1) Ely Pollard, appel- this record toto that clear from examination of It is immediately upon really being tried not with lant was concerned being being subsequently sub- with tried and but questions potential jected 4. life sentence on Counts 3 and As the to a subsequently try appellant separated on the of whether the State can imposed in whether a life sentence can be Counts 3 and subsequent case, conviction is not at issue this the dis- event of a speculate concerning these matters. sent declines appel- my view, should be affirmed as none of conviction lant’s enumerations of error has merit. An accused is entitled to (4). perfect supra Ross, a fair trial not a one. respectfully Presiding I I dissent. аm authorized to state that Judge McMurray Judge join in Andrews this dissent. part. Judge, concurring part dissenting
Beasley, except my opinion, Presiding Judge Birdsong I with acquiescence prior objection. True, the there was constituted a waiver of the pre-trial hearing. then, at a But that en- problem statement, “I have a ded with the defense counsel’s don’t [trying two]. counts one and wanted Any ambiguous. ambiguity this in the record.” At most this is when the case was for trial first two counts. resolved The called on the ready announced on the first two counts defense maintaining objection. instead of announced, It was not until readiness was was se- after opening sworn, made,
lected and were and the first statements State’s called, witness was all on basis of a two-count that defend- position, by initiating ant resurrected the earlier a discussion about By trial of one late. transaction. then was too Decided March Booker,
Mable V. Attorney, Sanders, Annis, Dennis C. N. Assis- District Michael Attorneys, appellee. tant District A91A2082, v. BROOKS A91A2081, A91A2083.ANAYA
A91A2080, PARTS, INC.; and vice versa. AUTO Judge. *6 Presiding Carley, personal seeking brought Appellant-plaintiff suit, fоr to recover implied liability, products war- injuries ranty, of breach of theories under denying Appellee-defendant answered, ma- negligence. complaint. allegations trial trial The case of terial appellee jury verdict. The directed moved for a before recovery appellee’s granted under motion as warranty implied However, liability products theories. and breach of appel- appellee’s ruling motion as to its on reserved the trial court go theory recovery negligence the case to allowed under lant’s to theory. jury in favor returned a verdict After the on sponte acting appellant, ever enter- court, аnd without sua of ing judgment appellee’s granted jury’s motion for a verdict, judgment Nos. thereon. Case entered verdict and directed appeals judgment and, A91A2081, from this A91A2080 cross-appeals. appellee After the trial court A91A2082, No. Case appellee appellee’s grant judgment motion, filed its had entered Judgment rendered in the Alternative to for New Trial a “Motion appeals appellee A91A2083, [Trial] In Case No. Court.” of this motion. the denial
Case Nos. A91A2080 A91A2081 appellee’s granted for a di- noted, trial court 1. As entering judg- prior judgment thereon rected verdict and entered authority jury’s for the There is ment on the proposition verdict ruling having court, on a motion reserved its that a trial entering judgment may grant verdict, the motion for a directed after Mayor jury’s Palmerio, Ga. Savannah verdict. &c. on the 419, 224) (1978); Ridgeview Institute, Brandvain (1988), (a) aff’d 188 Ga. (382 authority proposi- However, is no there ruling having motion for on a reserved tion that a trial judgment entering may grant verdict, the motion directed before jury’s verdict. ruled on af ver is reserved and directed verdict “When a motion for notwithstanding judgment verdict, it is treated as a ter the App. 249, Diedrich, & Assoc. v. Miller & Meier dict.”