Cherry v. State
| Decision Date | 13 March 1985 |
| Docket Number | No. 69018,69018 |
| Citation | 329 S.E.2d 580,174 Ga.App. 145 |
| Parties | CHERRY v. The STATE. |
| Court | Georgia Court of Appeals |
Joseph E. Williams, Atlanta, Gordon Greenhut, Decatur, for appellant.
Gary C. Christy, Dist. Atty., for appellee.
Vincent Cherry was convicted of two counts of cruelty to children.
1. Appellant contends the trial court erred by allowing the district attorney, over objection, to ask during voir dire: This question was argumentative, inflammatory and prejudicial, and was not a proper question on voir dire. Nevertheless, after appellant's objection was overruled he did not request a postponement until a new panel of jurors could be selected or offer a challenge to the poll of the jury. These are the two remedies available where, upon the call of a case but before a jury is struck, the panel of potential jurors is exposed to a prejudicial remark (or, as here, a prejudicial question). Nave v. State, 171 Ga.App. 165, 167(3), 318 S.E.2d 753 (1984); Bankston v. State, 169 Ga.App. 955(1), 315 S.E.2d 671 (1984). Since appellant did not pursue his proper remedy, it was not error to overrule his objection to the prosecuting attorney's question. See Hill v. State, 221 Ga. 65, 66(1, 2), 142 S.E.2d 909 (1965).
2. We need not consider whether the trial court erred by failing to declare a mistrial or admonish the jury to disregard the opening statement of the district attorney that "this is a case about a grown man who took his frustrations out on an eight year old girl and on a little three year old boy by repeatedly flogging them, these two precious little children, with a belt...." Although appellant objected to this statement, he did not request a rebuke or move for mistrial so there is nothing for us to review. Sims v. State, 159 Ga.App. 692(1), 285 S.E.2d 65 (1981).
3. Appellant contends error by allowing one victim's pre-school teacher to testify as to whether in a day or two after spanking her own children they were still in pain, as such testimony was not relevant. We do not agree. In our opinion the question was relevant as tending to show that appellant used excessive force, amounting to cruelty, in spanking the victims. Fain v. State, 165 Ga.App. 188, 189(2), 300 S.E.2d 197 (1983).
4. Appellant contends the trial court erred by denying his motion for a mistrial after the prosecuting attorney improperly placed appellant's character in issue through testimony of the victims' mother. He also contends error by allowing the State to impeach its own witness by such testimony.
In regard to these contentions the victims' mother, a State witness, testified on cross-examination that she and her children got along well with appellant. The prosecuting attorney was allowed to ask on redirect examination in regard to this issue if she had been to a hospital for a serious cut on her hand inflicted by appellant.
OCGA § 24-9-82 provides that a witness may be impeached by disproving facts testified to by him (her). Thus, once the mother testified on cross-examination that she and appellant got along well it was proper to show they had a serious "misunderstanding" during which appellant assaulted the mother with a stick, resulting in a cut on the mother which required four stitches to close.
As to the State impeaching its own witness, it is readily apparent from the transcript of the mother's testimony that she would not say anything in support of the charges against appellant and was a hostile witness. There is no longer a requirement of any show of surprise before a party is allowed to impeach his own witness. Davis v. State, 249 Ga. 309, 314(3), 290 S.E.2d 273 (1982). Thus, it was proper to allow the State to impeach its own witness.
In regard to appellant's contention that such evidence improperly placed his character in issue, if evidence is relevant and material to a case it is not inadmissible because it incidentally puts a defendant's character in issue. Davis, supra at 310, 290 S.E.2d 273(1). This rule is particularly applicable where, as here, appellant raised the issue of the nature of his relationship with the victims and their mother on cross-examination. When appellant induced the complained of testimony he is in no position to complain. Drake v. State, 142 Ga.App. 14, 15-16(1), 234 S.E.2d 825 (1977). Thus, enumeration of errors 4 and 5 are without merit.
5. Appellant contends error by admitting in evidence an oral statement made by appellant to a deputy sheriff. No objection was made to the admission of appellant's statement at a Jackson-Denno hearing (...
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Glover v. State, A08A0060.
...child's injuries to those of other child abuse victims over the course of her experience was properly admitted. Cherry v. State, 174 Ga.App. 145, 147(6), 329 S.E.2d 580 (1985). Moreover, even assuming that admission of the testimony was erroneous, we nevertheless conclude that, based on the......
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Boatright v. State
...improper statement may be examined for reversible error.' " Oller v. State, 187 Ga.App. 818, 823, 371 S.E.2d 455; see Cherry v. State, 174 Ga.App. 145(2), 329 S.E.2d 580. We are satisfied that the statement, especially in view of the prompt action by the trial judge, did not constitute prej......
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McWilliams v. State
...v. State, 167 Ga.App. 542(1), 307 S.E.2d 54 (1983); Smith v. State, 238 Ga. 146, 148(2), 231 S.E.2d 757 (1977); Cherry v. State, 174 Ga.App. 145, 147(8), 329 S.E.2d 580 (1985). b. Appellants also contend the trial court erred by charging the jury on the offense of theft by deception because......
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Morris v. State, 72548
...time on appeal. It is well settled that issues not raised in the court below will not be considered by this court. Cherry v. State, 174 Ga.App. 145(5), 329 S.E.2d 580 (1985). 4. Appellant attacks his conviction for enticing a child based on the state's alleged failure to prove the asportati......