Parker v. State

Citation220 Ga.App. 303,469 S.E.2d 410
Decision Date21 February 1996
Docket NumberNo. A95A2703,A95A2703
PartiesPARKER v. The STATE.
CourtUnited States Court of Appeals (Georgia)

Zion, Tarleton & Siskin, Jonathan J. Wade, Tucker, for appellant.

J. Tom Morgan, District Attorney, Desiree L.S. Peagler, Gregory J. Lohmeier and Robert M. Coker, Assistant District Attorneys, for appellee.

ANDREWS, Judge.

Anthony Parker was convicted by a jury of aggravated sodomy, possession of a firearm during the commission of a crime, two counts of aggravated assault, and two counts of simple battery. He appeals from the judgment entered on the convictions.

All of the charges stemmed from a series of incidents which occurred at the victim's house on the evening of June 28, 1990. The victim testified that Parker, her boyfriend at the time, violently attacked her and threatened to kill her. She testified that Parker repeatedly struck her in the face with his fists, choked her, threatened to stab her through the heart with a pair of scissors, and held a gun to her head while threatening to kill her. The victim further testified that, immediately after these events, and while the gun was within his reach, Parker forced her against her will to put his penis in her mouth.

Physicians who examined the victim shortly after the attack testified that she had contusion and abrasion injuries to her head and face and tenderness around her neck. A police officer testified that he observed the victim at the hospital the evening of the attack and that her face was swollen. The State also produced similar offense evidence and evidence of prior difficulties between the victim and Parker. Parker testified and denied all the charges. He claimed the victim received her injuries when she got into a fight with another woman at a local grocery store.

1. On appeal from a criminal conviction, the defendant no longer enjoys the presumption of innocence, and the evidence is viewed in a light most favorable to the verdict. Grier v. State, 218 Ga.App. 637, 638, 463 S.E.2d 130 (1995). This Court does not assume the jury's role as factfinder by weighing the evidence or by determining the credibility of witnesses, but only determines whether the evidence was sufficient under the standard of Jackson v. Virginia, 443 U.S. 307, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979), for a rational trier of fact to find Parker guilty of the charged offenses beyond a reasonable doubt. The evidence was sufficient under this standard to support Parker's conviction on all the charges. Id.

2. Parker claims his Sixth Amendment right to assistance of counsel was violated when, after he completed his direct testimony at the conclusion of proceedings on a Friday afternoon, the trial court ordered defense counsel not to consult with him about his ongoing testimony during the weekend recess of the trial.

In Geders v. United States, 425 U.S. 80, 96 S.Ct. 1330, 47 L.Ed.2d 592 (1976), the Supreme Court held that the defendant's Sixth Amendment right to assistance of counsel was denied by a court order prohibiting any consultation between the defendant and his attorney during an overnight recess which occurred during the defendant's ongoing testimony. In Perry v. Leeke, 488 U.S. 272, 109 S.Ct. 594, 102 L.Ed.2d 624 (1989), however, the Supreme Court decided the Geders rule did not apply to a similar order entered by the trial court prior to a brief 15-minute recess taken during the defendant's ongoing testimony. In Perry, the Court stated that the defendant there had no constitutional right to confer with defense counsel to discuss his ongoing testimony and held that "just as a trial judge has the unquestioned power to refuse to declare a recess at the close of direct testimony--or at any other point in the examination of a witness--we think the judge must also have the power to maintain the status quo during a brief recess in which there is a virtual certainty that any conversation between the [defendant] witness and the lawyer would relate to the ongoing testimony." Id. at 283-284, 109 S.Ct. at 601. The rule is designed to prevent unethical "coaching" or other improper influence on the witness during ongoing testimony. Id. at 282-283, 109 S.Ct. at 600-01. Accordingly, the Court in Perry found that the order prohibiting consultation between the defendant and his attorney during the brief recess did not violate the defendant's Sixth Amendment right to assistance of counsel. In so holding, the Court noted that the contrary holding in Geders was based on a concern that during a long recess any consultation between the defendant and defense counsel would normally encompass matters beyond the defendant's ongoing testimony, which the defendant had a constitutional right to discuss with his attorney. Id. at 284. The Court in Perry concluded that: "It is the defendant's right to unrestricted access to his lawyer for advice on a variety of trial-related matters that is controlling in the context of a long recess. [Geders, supra at 88, 96 S.Ct. at 1335]. The fact that such discussions will inevitably include some consideration of the defendant's ongoing testimony does not compromise that basic right." Perry, supra at 284, 109 S.Ct. at 602.

Here, in response to a motion by the prosecutor, the trial court prohibited consultation between Parker and his attorney over the weekend recess only with respect to Parker's ongoing testimony. Since the order applied to a weekend recess, the Geders rule applicable to consultation during long recesses controls. Assuming the Geders rule provides for unrestricted access even as to the defendant's ongoing testimony, there is nothing in the record showing that Parker or his attorney indicated a desire to confer over the weekend recess but were prevented from doing so by the trial court's order. In fact, defense counsel made no objection to the motion and told the trial court there were no plans for any consultation between him and Parker over the weekend recess. "We conclude that a defendant or the defendant's counsel must indicate, on the record, a desire to confer in order to preserve a deprivation of assistance of counsel claim." Crutchfield v. Wainwright, 803 F.2d 1103, 1109 (11th Cir.1986). In the absence of any such indication, we find no deprivation of the defendant's Sixth Amendment right to assistance of counsel. Parker's testimony at the motion for new trial hearing that he wanted to confer with defense counsel over the weekend recess was given long after the fact and does not serve to resurrect this claim.

3. Parker claims the trial court erred when, during jury deliberations, the jury sent a written question to the court, and the court sent a written response to the jury without consulting defense counsel.

The record contains a copy of a written note from the jury asking whether or not they could have Parker's written statement as evidence and a written response from the trial court stating: "No--the statement in written form cannot be given to you." There is no transcript of the proceedings relating to this inquiry and response, and nothing is in the record showing whether or not the trial court brought the jury's inquiry to the attention of defense counsel. At best, the testimony and colloquy at the hearing on the motion for a new trial showed a lack of recollection as to these events.

Parker has the burden on appeal to show error by the record. State v. O'Quinn, 192 Ga.App. 359, 360, 384 S.E.2d 888 (1989). The record was not supplemented by any of the methods provided in OCGA § 5-6-41 to establish the facts relating to this claim. Since the record is not sufficient for consideration of this enumeration, we find no error.

4. Parker claims the trial court erroneously admitted evidence of similar transactions.

The trial court conducted a pre-trial hearing at which the State made an affirmative showing establishing the admissibility of prior similar offenses committed by Parker against three of his ex-girl friends. The only objection made by Parker prior to trial was that the prior offenses were not sufficiently similar to the present offenses. Since no objection was made when the similar transaction evidence was introduced at trial, this claim was waived. Hunter v. State, 202 Ga.App. 195, 197-198, 413 S.E.2d 526 (1991). In any event, there was sufficient similarity between the prior offenses admitted by the trial court and the crimes charged such that proof of the former tended to prove the latter. Campbell v. State, 263 Ga. 824, 825, 440 S.E.2d 5 (1994); Obiozor v. State, 213 Ga.App. 523, 526, 445 S.E.2d 553 (1994). We will not address other claims of error made on appeal but not raised in the trial court.

5. Parker claims the trial court erred by admitting evidence of prior difficulties between him and the victim.

We find no error. In the first place, since no objection was made at trial when this evidence was introduced, any such claim was waived. Toney v. State, 216 Ga.App. 240, 241, 453 S.E.2d 813 (1995). Even if these claims had been preserved for appellate review, there is no merit to Parker's claim that admission of prior difficulties evidence is limited to murder cases (Sloan v. State, 214 Ga.App. 784, 785, 449 S.E.2d 328 (1994)), and no merit to the claim that the requirements of Williams v. State, 261 Ga. 640, 409 S.E.2d 649 (1991), were not complied with in the introduction of prior difficulties and similar transactions evidence. See Maxwell v. State, 262 Ga. 73, 74-75, 414 S.E.2d 470 (1992). This case was tried in 1990 prior to the Williams, supra, decision which, nevertheless, is given retroactive effect. Ramirez v. State, 205 Ga.App. 217, 218, 422 S.E.2d 3 (1992). Even if the trial court did not make specific rulings on the record that each of the elements enunciated in Williams for admission of the evidence was satisfied, there was no harmful error because the evidence was sufficient for the trial court to have concluded that the Williams requirements were satisfied. Morales v....

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    ...raised with the court during the bench conferences, and the trial court expressly credited counsel's testimony"); Parker v. State , 220 Ga. App. 303, 312, 469 S.E.2d 410 (1996) (holding that Parker acquiesced to his absence from a brief hearing at which a juror was discussed based on the fo......
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