Coats v. State, 29525

• Decision Date: 25 June 1975
• Docket Number: No. 29525,29525
• Citation: 234 Ga. 659,217 S.E.2d 260
• Parties: Howard COATS, Jr. v. The STATE.
• Court: Georgia Supreme Court

Page 260

217 S.E.2d 260

234 Ga. 659

Howard COATS, Jr. v. The STATE.

No. 29525.

Supreme Court of Georgia.

June 25, 1975.

Worozbyt & Beskin, Theodore S. Worozbyt, Donald C. Beskin, James Martin Gecker, Atlanta, for appellant.

Lewis R. Slaton, Dist. Atty., Wallace Speed, Richard E. Hicks, Asst. Dist. Attys., Arthur K. Bolton, Atty. Gen., Atlanta, for appellee.

PER CURIAM.

This is an appeal from convictions for murder, carrying a pistol without a license, and carrying a concealed weapon. The case was tried before a jury; appellant defended against the murder charge on the ground of self-defense; he contends that the convictions on the two pistol charges were erroneous in that there was no evidence that he did not have a license to carry a pistol or that his pistol was concealed; the jury convicted on all three charges; and the appellant received concurrent sentences of life imprisonment for murder and twelve months for each of the pistol convictions.

The issues on appeal relate to the sufficiency of the evidence to support the convictions, the manner in which the chief witness for the defense was impeached, and the failure of the trial court to grant a motion to sever the misdemeanor charges from the murder charge for purposes of trial.

1. The first two enumerated errors complain that a verdict should have been directed for the appellant on the murder charge, and that the evidence was insufficient to support the conviction for murder.

We have reviewed the transcript of the evidence and conclude that these two enumerated errors are without merit. The only issue created by the evidence as a whole was whether appellant fired his gun at the victim in self-defense. Appellant's evidence tended to prove self-defense; the State's evidence tended to prove that, after an earlier argument, appellant walked over to the victim and shot him three times without immediate provocation and that the victim fired one shot in return as he fell to the floor; the issue of guilt or innocence was a matter of determining the credibility of the witnesses and resolving the conflicts in the evidence; and these matters were for the jury to decide. Young v. State, 232 Ga. 176, 205 S.E.2d 307 (1974).

2. The third and fourth enumerated errors complain of efforts on the part of the State to impeach the appellant's best witness, one Chumley. After cross-examining Chumley, the prosecution offered documentary proof of four prior convictions of the witness. Before the prosecution made the offer, appellant, anticipating what was to come, moved for a hearing out of the presence of the jury. The motion was denied, and the prosecution then offered the record of each conviction, stating generally the nature of each offense involved. Appellant objected to two of the convictions, one on the ground that it was for a misdemeanor not involving moral turpitude, and the other, a felony conviction, on the ground that it failed to show on its face that Chumley had been represented by a lawyer. The objections were argued briefly by both sides, and the court sustained the objection to the misdemeanor conviction and instructed the jury to disregard it; the felony conviction was ruled admissible; the court then recessed for lunch; and immediately after lunch, the prosecution withdrew the challenged felony conviction, and the jury was instructed to disregard it.

Appellant argues that the trial court abused its discretion in refusing a hearing out of the presence of the jury. When the admissibility of evidence is challenged, a hearing out of the presence of the jury on the question of admissibility is often appropriate and sometimes required. Holcomb v. State, 128 Ga.App. 238, 196 S.E.2d 330 (1973); Jackson v. Denno, 378 U.S. 368, 84 S.Ct. 1774, 12 L.Ed.2d 908 (1964). It is not, however, always required. Woolfolk v. State, 81 Ga. 551, 8 S.E. 724 (1889); Shouse v. State, 231 Ga. 716, 203 S.E.2d 537 (1974). The manner in which a trial is conducted is generally within the discretion of the trial judge. Kellar v. State, 226 Ga. 432, 175 S.E.2d 654 (1970). Appellant has shown no reversible error in the trial judge's decision to permit the misdemeanor conviction to be tendered subject to objection, where the objection was sustained and the jury instructed to disregard the conviction.

Appellant argues strenuously, however, that it was an error of constitutional magnitude to permit the jury to become aware of a prior felony conviction of the witness which did not show on its face that the witness had been...