Collins v. State, A89A0075
Decision Date | 10 April 1989 |
Docket Number | No. A89A0075,A89A0075 |
Parties | COLLINS v. The STATE. |
Court | Georgia Court of Appeals |
Lucas & Bond, Kenneth E. Lucas, and Warner Robins, for appellant.
Carl A. Veline, Jr., Sol. and Robert Turner, Asst. Sol., for appellee.
Defendant was accused and convicted of public indecency. (OCGA § 16-6-8.) He was sentenced to serve 12 months on probation and ordered to pay a $1,000 fine. This appeal followed. Held:
1. On May 28, 1987, defendant was sunning himself on the back porch of his home. He was wearing socks, shoes and underwear. The underwear was pulled down close to defendant's knees, exposing his genitals. A neighbor and a police officer clearly saw defendant's genitals. The observers were 69 feet away and their view was unobstructed.
The trial court did not err in overruling defendant's motion for a directed verdict of acquittal. The evidence was sufficient to enable any rational trier of fact to find defendant guilty of the offense of public indecency beyond a reasonable doubt. McGee v. State, 165 Ga.App. 423, 424(2), 299 S.E.2d 573; Hester v. State, 164 Ga.App. 871(1), 298 S.E.2d 292; Collins v. State, 160 Ga.App. 680(1), 288 S.E.2d 43. Whether the act was performed in a "public place" within the meaning of the statute was a question of fact which the trial court properly left for the jury's resolution. Rushing v. State, 133 Ga.App. 434, 435(1), 211 S.E.2d 389; OCGA § 16-1-3(15).
2. The trial court charged the jury and it retired to deliberate. Soon, the jury sent a note to the judge which read: "Question: Is charge of public indecency (lewd exposure of sex organ) still unlawful if no person can view or see the sex organ?"
The trial court responded to the jury's inquiry without consulting counsel. It sent the jury a note and a photostatic copy of the portion of its charge defining public indecency. The note read:
Thereafter, while the jury was deliberating, defendant's counsel learned about the communications between the jury and the trial court. He attempted to locate the solicitor so the matter could be discussed. In the meantime, the jury returned to the courtroom and rendered its verdict. Before sentence was imposed, defendant moved for a mistrial on the ground that the jury was recharged in defendant's absence. The trial court overruled the mistrial motion.
Defendant contends the trial court erred in recharging the jury in his absence and in denying his motion for mistrial. We agree.
Stewart v. State, 165 Ga.App. 428, 429, 430, 300 S.E.2d 331.
Pursuant to an application of the foregoing principles, it is clear that the trial court erred in communicating with the jury in the absence of defendant and his counsel. The State concedes as much. It argues, however, that defendant could not have been harmed by the communication because it simply amounted to a recharge of a portion of the charge originally given. This argument fails in light of Hopson v. State, 116 Ga. 90, 91(2), 42 S.E. 412.
In Hopson v. State, supra, the trial court, in the absence of that defendant and his counsel, gave the jury a second charge which was virtually the same as the first charge. The Supreme Court held that "the fact that the 'recharge' was, in substance, the same as the original charge" did not Id. at 91, 92, 42 S.E. 412.
In the case sub judice, the recharge cannot be deemed harmless. After all, the jury was instructed on a substantive issue in the absence of defendant and his counsel. Compare Leverette v. State, 104 Ga.App. 743(1), 122 S.E.2d 745. Moreover, the recharge coming as it did in written form, was not in accord with good practice. See Woodard v. State, 91 Ga.App. 374(2), 85 S.E.2d 723. Surely, defendant and his counsel should have been afforded an opportunity to object to the recharge and the manner in which it was given. See Hopson v. State, 116 Ga. 90, 91, 42 S.E. 412, supra.
Under the particular facts and circumstances of the case sub judice, defendant is entitled to a new trial because the jury was recharged in the absence of defendant and his counsel. Accordingly, the judgment is reversed.
3. Preliminarily, defense counsel stated that he intended to cross-examine the victim as to whether she was pursuing a "vendetta against [defendant] because of rumors or accusations that he made about her character." The trial court replied that it would not allow such a cross-examination because the "rumors" concerned the victim's past sexual conduct. Defendant asserts that, in so ruling, the trial court erroneously denied his right to a thorough and sifting cross-examination because he was not permitted to demonstrate the victim's bias. See OCGA § 24-9-68. The State contends, on the other hand, that the trial court ruled properly because evidence concerning the victim's past sexual conduct is irrelevant. See Butler v. State, 173 Ga.App. 168(1), 325 S.E.2d 835. Because we reverse on other grounds (see Division 2), we need not decide whether the trial court's ruling constituted harmful error. We suggest, however, that upon retrial, the trial court permit a limited inquiry concerning the victim's...
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