Clark v. State
| Decision Date | 15 September 1986 |
| Docket Number | No. 72741,72741 |
| Citation | 348 S.E.2d 916,180 Ga.App. 280 |
| Parties | CLARK v. The STATE. |
| Court | Georgia Court of Appeals |
Joe A. Weeks, Atlanta, for appellant.
James L. Webb, Sol., Norman R. Miller, Asst. Sol., for appellee.
The defendant, Wayde Clark, appeals from his conviction of two counts of simple battery and one count of criminal trespass. On the evening of October 10, 1984, Officer J.N. Wood, of the City of Atlanta Police Department, received a radio call to meet Ms. Margaret Willoughby at a certain location. She told him Wayde Clark was her boyfriend and they had an argument and he had beat her and pulled a knife. She wanted to press charges because Clark had told her he was going to damage her apartment and her personal property. They proceeded to her apartment and she pointed out Clark who was talking to three other people. Officer Wood testified that he walked up to Clark and asked him if his name was "Wayde," and he said "no" and started walking away. The officer asked Clark to stop because Ms. Willoughby had told him Clark had a knife and he wanted to make a search. He told Clark to place his hands on a car and started a pat-down search. Clark moved his hands from the car. This was repeated three times. Officer Wood said he placed him under arrest "the third time trying to search him, he came off the car trying to strike me." Clark was handcuffed and placed in the back seat of the patrol car and Wood started to write up his report. Clark kicked out the left rear window of the patrol car and Officer Wood radioed for assistance. The police paddy wagon and three other officers responded. Clark testified that the officers told him to come out of the car but he told them to come in and get him. The officers physically removed Clark from the patrol car and placed him in the paddy wagon. Only two officers testified, but they stated that Clark hit and kicked them during this transfer.
Clark testified that he did not beat up Willoughby and Officer Wood first approached another man and asked him if he was "Wayne Clark." He volunteered that he was Wayde Clark and the officer started to search him and kicked his feet out from under him. He said he did not resist arrest and did not have a weapon. Clark appeals from a jury verdict of guilty and judgment entered on that verdict. Held:
1. The trial court did not err in denying a motion for a directed verdict. A directed verdict is proper only when there is no conflict in the evidence and the evidence introduced, with all reasonable deductions and inferences, shall demand a verdict of acquittal. OCGA § 17-9-1. Clark admitted he kicked out the window of the police car and both officers testified that defendant hit and struck them several times when they were transferring him from the patrol car to the paddy wagon.
On appeal the test to be applied to determine whether the trial court erred in denying a motion for a directed verdict is that of Jackson v. Virginia, 443 U.S. 307, 99 S.Ct. 2781, 61 L.Ed.2d 560, i.e., whether the evidence is sufficient to enable any rational trier of fact to find the existence of the offense charged beyond a reasonable doubt. Humphrey v. State, 252 Ga. 525, 527, 314 S.E.2d 436. The evidence was in conflict, but the evidence in support of the verdict of the jury was sufficient to enable a rational trier of fact to find the offenses of battery and criminal trespass were established beyond a reasonable doubt. Hence, the trial court did not err in denying defendant's motion for a directed verdict of acquittal.
2. Defendant enumerates as error, "failing to grant a mistrial to the defendant." Haywood v. Wooden Peg, 174 Ga.App. 806(1), 331 S.E.2d 109. However, it is apparent from the brief that the error complained of was "[t]he state's attorney improperly testif[ying] as to the contents of a document from the Municipal Court of Atlanta." Hence, we will consider the allegation of error. See OCGA § 5-6-48(f).
At trial, the defendant testified that he appeared in municipal court on these charges and "the judge dismissed the four simple battery charges and said he was going to bind the criminal trespassing over...." On cross-examination, the prosecutor asked him if he said the trial judge in the municipal court "did not bind over ... four counts of simple battery...." The defendant answered: Counsel for defendant objected and a bench conference was held but not recorded. No further mention was made of the "bind-over sheet" of the municipal court at that time. At a later point in the trial, counsel made a motion for mistrial on the basis that "Mr. Miller told the jury that he had a document that was never identified." The motion was denied. Following closing arguments, after the jury had retired, the court perfected the record to show that on the prior afternoon he had charged the jury "to disregard any mention of anything that they heard about a bind-over from the City of Atlanta Court ... to totally disregard anything they had heard about any bind-over...."
First, we note that the objection made in the trial court ("Mr. Miller told the jury that he had a document that was never identified") is not the error enumerated on appeal ("[t]he state's attorney improperly testified as to the contents of a document from the Municipal Court of Atlanta"). Where the objection urged below is not argued on appeal, it will be treated as abandoned, and where an entirely different objection or basis for appeal is argued in the brief which was not presented at trial we will not consider that basis as we are...
To continue reading
Request your trial
-
Floyd v. State
...are inextricably intertwined with the appellant's right to have it suppressed if it is illegal. OCGA § 5-6-48(f); see Clark v. State, 180 Ga.App. 280(2), 348 S.E.2d 916. In the Fourth Amendment right to be free from unreasonable search and seizure inheres the fundamental principle that the ......
-
State v. McCloud
...to warrant a man of reasonable caution in the belief that an offense has been or is being committed. [Cits.]" Clark v. State, 180 Ga.App. 280, 283(3), 348 S.E.2d 916 (1986), citing Carroll v. United States, 267 U.S. 132, 45 S.Ct. 280, 69 L.Ed.2d 543 (1925). Whatever may have been the motive......
-
Glenridge Unit Owners Ass'n, Inc. v. Felton
...Plaintiff's Request No. 2 was not given, but that failure is not enumerated as error and is deemed abandoned. Clark v. State, 180 Ga.App. 280, 282(2), 348 S.E.2d 916 (1986); MacDonald v. MacDonald, 156 Ga.App. 565, 566(1)(a), 275 S.E.2d 142 (1980). The brief fails to enlighten as to what it......
-
McGinnis v. State
...proof was not needed to establish his identity. This ground was not advanced at trial and will not be considered. Clark v. State, 180 Ga.App. 280, 282(2), 348 S.E.2d 916 (1986). Objection was interposed at the close of the state's evidence, at which time the state had no idea whether defend......