Davis v. State, A89A1728

• Decision Date: 20 February 1990
• Docket Number: No. A89A1728,A89A1728
• Parties: DAVIS v. The STATE.
• Court: Georgia Court of Appeals

Page 253

392 S.E.2d 253

194 Ga.App. 833

DAVIS v. The STATE.

No. A89A1728.

Court of Appeals of Georgia.

Feb. 20, 1990.

Rehearing Denied March 13, 1990.

Certiorari Granted April 19, 1990.

John D. McCord III, T. Stanley Sunderland, Buford, for appellant.

Gerald N. Blaney, Jr., Sol., David M. Fuller, Faye S. Pous, Asst. Solicitors, for appellee.

POPE, Judge.

John Miron Davis was charged by accusation with battery and simple battery. He was tried by a jury and acquitted of the battery charge but convicted of simple battery. He appeals.

1. Davis's first enumeration, in which he contends the trial court erred by denying his amended motion for a new trial, is not supported by citation of authority or argument. Accordingly, this enumeration is deemed abandoned pursuant to Rule 15(c)(2) of this court. Fowler v. State, 188 Ga.App. 873, 874(3), 374 S.E.2d 805 (1988).

2. Davis enumerates as error the trial court's denial of his motion for a directed verdict of acquittal made on the ground of a fatal variance between the allegata and the probata. We find no merit in this enumeration. The accusation charged Davis with simple battery by striking his wife "in the face with his fist, causing a black eye." However, a portion of Davis's left arm had been amputated, and the victim testified that he struck her not with his fist but with his stump. " 'The general rule that allegations and proof must correspond is based upon the obvious requirements (1) that the accused shall be definitely informed as to the charges against him, so that he may be enabled to present his defense and not be taken by surprise by the evidence offered at the trial; and (2) that he may be protected against another prosecution for the same offense.' (Citations omitted.) [Cit.]" DePalma v. State, 225 Ga. 465, 469-470, 169 S.E.2d 801 (1969). The variance complained of here did not subject Davis to either of these dangers, and thus we find no error. See Hancock v. State, 188 Ga.App. 870, 374 S.E.2d 757 (1988).

3. The record reveals the trial judge instructed witnesses not to "discuss your testimony with each other or any third person while the trial is pending," and that a State witness, Joyce Goodroe, refused to discuss the case with Davis's attorney during a lunch break, based on her understanding that the trial court's instruction prohibited such a conversation. Davis contends the trial court's instruction to witnesses regarding the rule of sequestration was erroneous, and that the trial court failed to cure that error by affording him the opportunity to interview Goodroe after correcting her mistaken impression.

The trial court questioned Goodroe outside the presence of the jury, told her that "it would not have been improper ... for [her] to talk to [Davis's counsel]," and inquired whether she would have talked to him but for her misunderstanding of the court's instruction regarding sequestration. After first referring again to needing the court's permission, Goodroe finally said: "No, I don't think so. I don't believe I would have, sir." On that basis, the trial court refused to allow Davis's counsel to recess the trial to interview the witness, and permitted her to testify over his objection and despite counsel's statement in his place that the question he planned to ask Goodroe was one that could not have been asked prior to the beginning of the trial.

We find that the trial court not only took care to correct the witness' misapprehension about the propriety of speaking with defense counsel, but also ascertained that the witness would not have spoken with counsel even had she not been laboring under the erroneous belief that she was instructed not to do so. Accordingly, any possible error in refusing to grant Davis a recess to interview the witness would be harmless. It is elementary that "[t]he absence of harm, even when there is error, affords no cause for reversal. [Cit.]" Royal v. State, 189 Ga.App. 756, 758, 377 S.E.2d 526 (1989).

4. Davis contends the trial court erred by denying his motion to strike the testimony of Goodroe or, in the alternative, give the jury a limiting instruction concerning her testimony. The victim testified the simple battery alleged in the accusation took place on April 10, 1988, during an argument inside the mobile home she shared with Davis. Goodroe's testimony, admitted as part of the res gestae over Davis's objection, was that she was a neighbor and that on that day, as she was in her yard watering her flowers, she noticed Davis's wife "beating frantically on a neighbor's door" and observed Davis follow her in his pickup truck. Goodroe stated that she saw Davis get out and jerk at his wife, trying to hit her, and that he pulled and kicked her. Goodroe testified that she then called the police. At the close of the State's evidence, counsel for Davis argued that it was possible for the jury to convict Davis of simple battery based solely on his conduct as testified to by Goodroe, which was not the battery alleged in the accusation, and moved the court to strike Goodroe's testimony, or to give limiting instructions. The trial court refused. We find no error. Although the State argues that the evidence is admissible under exceptions to the hearsay rule and the dissent cites Harrell v. State, 241 Ga. 181(2), 243 S.E.2d 890 (1978), which is a case dealing with the exception to the hearsay rule embodied in OCGA § 24-3-2, the issue is not a hearsay problem. Davis objected to testimony by Goodroe of what she saw (Davis jerking at, kicking and pulling the victim on the neighbor's porch), saying that the testimony described a simple battery other than that charged in the accusation.

The simple battery described in Goodroe's testimony "occurred during the commission of the offense for which [Davis] was charged, and thus was an integral part of the res gestae and admissible in evidence. [Cits.]

" 'Surrounding circumstances constituting part of the res gestae may always be shown to the jury along with the principal fact, and their admissibility is within the discretion of the trial court. (Cit.) Hence, acts and circumstances forming a part or continuation of the main transaction are admissible as res gestae and it does not matter that the act is another criminal offense and does not tend to establish the main offense. (Cit.) [Cits.]" Cooper v....