Davis v. State, 27955
| Decision Date | 06 September 1973 |
| Docket Number | No. 27955,27955 |
| Citation | 230 Ga. 902,199 S.E.2d 779 |
| Parties | James Robert DAVIS v. The STATE. |
| Court | Georgia Supreme Court |
Fred A. Gilbert, Atlanta, for appellant.
Lewis, R. Slaton, Dist. Atty., Richard E. Hicks, Morris H. Rosenberg, R. Andrews Weathers, Arthur K. Bolton, Atty. Gen., Courtney Wilder Stanton, David J. Bailey, Deputy Asst. Attys. Gen., Atlanta, for appellee.
Syllabus Opinion by the Court
The appellant was convicted of the offenses of rape, aggravated sodomy and child molestation in the Superior Court of Fulton County. He was sentenced to life imprisonment and twenty years. From these convictions and sentences, he has filed a direct appeal to this court. Held:
1. The appellant contends, in his first enumeration of error, that the trial court erred in denying his counsel a 15-minute recess, at the close of the state's case, for the purpose of interviewing witnesses. The trial transcript shows that the court granted a recess at defense counsel's request. The record fails to show, when court reconvened, any objection was made by counsel to the brevity of the recess or his inability to complete his conference with the witnesses. It is doubtful under our contemporaneous objection rule that a question is here presented for review. See Joyner v. State, 208 Ga. 435(3), 67 S.E.2d 221 (1951). In any event, a recess or continuance is subject to the sound discretion of the trial court. Massey v. State, 226 Ga. 703, 177 S.E.2d 79 (1970). There is nothing in this record to show the trial court abused its discretion and no error appears.
2. The trial court did not err in refusing to declare a mistrial because of the testimony of the arresting officer, and subsequent argument of the district attorney to the jury, regarding the appellant's conduct at the time of his arrest. The officer's testimony was to the effect that the appellant was coming at him with a knife in his hand when the officer struck appellant on the head. An objection was made to the district attorney's question as leading and a mistrial was also requested by defense counsel. The trial court sustained the objection but overruled the mistrial motion. The district attorney then asked several more questions about the defendant's conduct at the time of arrest which were answered without objection. A second motion for mistrial was made by defense counsel during the closing argument of the district attorney when he referred to the defendant's conduct as an assault upon the arresting officer. The trial court also overruled this motion. Defense counsel's objection in each instance was that this evidence and the argument of the district attorney tended to show the commission of a separate crime and put the defendant's character in issue. Appellant relies on Hodges v. State, 85 Ga.App. 617, 70 S.E.2d 48 (1952) and insists that this was prejudicial to defendant requiring the grant of a new trial. One of the exceptions to this rule, recognized in the Hodges case, supra, is where evidence of the commission of an independent crime is part of the res gestae. Katzensky v. State, 228 Ga. 6(1), 183 S.E.2d 749 (1971). The evidence discloses the defendant was engaged in the act of rape at the very time of the police officer's arrival. The testimony of the officer and the argument of the district attorney, objected to by defense counsel, related to the events which occurred immediately after the officer discovered defendant in the act of rape. Enumerations of error 2 and 3 are not meritorious.
3. Enumeration of error No. 4 contends the trial court erred in permitting the district attorney upon cross examination of appellant, over objection, to inquire into the type of drugs for which appellant was receiving treatment. The record reveals that appellant had previously testified without objection on direct examination that he was living at the Renewal House and, on cross examination, that the purpose was to receive treatment for drugs. No error is shown here. The scope of cross examination lies largely within the discretion of the trial court. It will not be disturbed by this court unless it is shown there has been an abuse of that discretion. No such abuse is disclosed by this record. Moore v. State, 221 Ga. 636(2), 146 S.E.2d 895 (1966); Gravitt v. State, 220 Ga. 781(6), 141 S.E.2d 893 (1965).
4. Appellant contends in enumerations of error 5, 6 and 7 that the trial court erred in permitting testimony and argument regarding appellant's unlawful entry into the home of a witness called by the state. This witness was used as a rebuttal witness to defendant's testimony that he was at the home of his mother until 1:45 a.m. on the morning of the crimes. The rebuttal witness offered by the state testified the defendant broke into her home through a front window and was there at 1:30 a.m. on the same morning. She and her son lived in a neighboring apartment to the victims involved in this case....
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