Bell v. State

• Decision Date: 17 February 1992
• Docket Number: No. A91A1515,A91A1515
• Citation: 203 Ga.App. 109,416 S.E.2d 344
• Parties: BELL v. The STATE.
• Court: Georgia Court of Appeals

Page 344

416 S.E.2d 344

203 Ga.App. 109

BELL v. The STATE.

No. A91A1515.

Court of Appeals of Georgia.

Feb. 17, 1992.

Reconsiderations Denied Feb. 27, 1992

and March 2, 1992.

Certiorari Denied April 9, 1992.

Beauchamp & Associates, Kermit S. Dorough, Jr., Albany, for appellant.

Britt R. Priddy, Dist. Atty., Nancy G. Grigg, Asst. Dist. Atty., for appellee.

SOGNIER, Chief Judge.

Willie James Bell was indicted for murder and possession of a firearm in the commission of a felony. A jury found him guilty of voluntary manslaughter and the firearm possession charge, and he appeals from the judgment of conviction and sentence entered on the jury's verdict.

1. Although the record shows that at a pretrial motions hearing, the trial court agreed to reinspect the prosecution's file in camera in light of any special defenses, it is not necessary that we determine whether the trial court actually did so because appellant did not object to any alleged failure, and we are thus foreclosed from reviewing this issue on appeal. Wisdom v. State, 234 Ga. 650, 652, 217 S.E.2d 244 (1975).

2. Appellant asserts error regarding two incidents that occurred during jury selection. The first involved an outburst of crying by a woman in the crowded courtroom. The trial judge was not aware of the woman's identity until she was identified as the victim's mother by appellant's counsel, and the woman's identity was never disclosed to the jury. The trial court denied appellant's ensuing motion for a mistrial or, in the alternative, to quash the jury panel. "Many, if not most, trials by jury involve some degree of emotion by at least one party or the other. It would be unreasonable to expect that all emotions be completely frozen during a trial by jury when such effective bridle on emotions cannot be sustained elsewhere. Demonstrations and outbursts which occur during the course of a trial are matters for the trial court's discretion." (Citations and punctuation omitted.) Forney v. State, 255 Ga. 316, 318(3), 338 S.E.2d 252 (1986). Here, the trial court immediately had the woman escorted from the courtroom and gave the jury a curative instruction, after which all jurors indicated, in response to the trial court's question, that they could disregard the incident and remain impartial. Under these circumstances, we find no abuse of the trial court's discretion in denying appellant's motion. Id.

The second incident involved a juror who approached the judge with a question after the outburst. She indicated that she would rather not serve, vaguely expressing a fear of what might happen should the jury's verdict go a certain way. The trial court's questioning of this juror, rather than constituting impermissible comment, as urged by appellant, was merely an attempt to understand the basis for the juror's hesitation, and we find no error in the trial court's denial of appellant's motion to quash the jury panel based on this incident.

3. Appellant contends the trial court erred by admitting bone fragments and certain photographs into evidence on the ground that they were proffered solely to inflame the jury. We do not agree with appellant that these exhibits were irrelevant to the issues tried, as a police officer testified that the bone fragments were recovered near the victim's body immediately after the shooting, and the photographs depicted the victim's body at the scene shortly after the shooting. "[R]elevant evidence 'may be excluded if its probative value is substantially outweighed by the danger of unfair prejudice, confusion of the issues, or misleading the jury, or by considerations of undue delay, waste of time, or needless presentation of cumulative evidence.' " Hicks v. State, 256 Ga. 715, 720-721(13), 352 S.E.2d 762 (1987). However, "such considerations are appropriately committed to the trial court's sound exercise of discretion, and we find no abuse of discretion here," id. at 721, 352 S.E.2d 762, particularly since neither the bone fragments nor the photographs (all but one of which depicted the victim covered by a sheet) was particularly gruesome. Compare Brown v. State, 250 Ga. 862, 866-867(5), 302 S.E.2d 347 (1983) (photographs depicting victim after autopsy and incisions inadmissible unless necessary to show some material fact brought out only after autopsy).

4. We find no error in the trial court's jury charge. Contrary to appellant's contention, the trial court did charge the jury on self-defense and voluntary manslaughter. No evidence was adduced at trial which would indicate self-defense other than the evidence showing that appellant and the intended victim were engaged in mutual combat, and a charge on justification as related to mutual combat was given. McCord v. State, 176 Ga.App. 505(1), 336 S.E.2d 371 (1985) and Gerald v. State, 189 Ga.App. 155(1), 375 S.E.2d 134 (1988), relied on by appellant, are inapposite, as those cases involved an incorrect charge on justification in mutual combat, and the charge here was a correct statement of the law.

We do not agree with appellant that this case is controlled by Johnson v. State, 151 Ga.App. 887(1), 262 S.E.2d 201 (1979), because unlike the circumstances in Johnson, appellant intentionally pointed the gun at his intended victim. A charge on accident was not warranted under these circumstances.

The court's charge on inferred intent and transferred intent was a correct statement of the law and...