Davis v. State
| Decision Date | 16 May 1989 |
| Docket Number | No. A89A0462,A89A0462 |
| Citation | 191 Ga.App. 566,382 S.E.2d 396 |
| Parties | DAVIS v. The STATE. |
| Court | Georgia Court of Appeals |
Verna L. Smith, for appellant.
Edward D. Lukemire, Dist. Atty., George R. Christian, Asst. Dist. Atty., for appellee.
Davis was originally indicted for four counts of burglary. In a superseding indictment, seven more burglary counts were added, for a total of eleven. The trial court granted a motion by the appellant to sever the four original counts from the seven additional counts, and the case proceeded to trial on the original counts. The appellant was convicted on one of the counts as charged, was found guilty of the lesser included misdemeanor offenses of theft by taking and criminal trespass, respectively, with respect to two of the counts, and was acquitted on the remaining count. He brings this appeal from the denial of his motion for new trial. Held:
1. The appellant contends that the trial court erred in admitting evidence of his involvement in three of the seven additional burglaries charged in the amended indictment. The evidence in question consisted of the testimony of two alleged accomplices who had been involved in these three burglaries, each of which had occurred within the same general vicinity and during the same time period as those for which the appellant was on trial. In each of the three additional burglaries, entry to the building had been gained by knocking a hole through a wall with a sledge hammer. This had also been the manner of entry in two of the alleged burglaries for which the appellant was on trial. The evidence concerning the additional burglaries was admitted with a limiting instruction to the jury that it could only be considered "solely with reference to the mental state, identity, or intent of the defendant insofar as the same is applicable to or refers to or illustrates the charge or charges" for which he was being tried.
' ' Kilgore v. State, 251 Ga. 291, 296-297, 305 S.E.2d 82 (1983). We hold that these conditions were satisfied in the present case and that, accordingly, the evidence in question was properly admitted.
2. The appellant contends that the trial court erred in admitting evidence that he had asserted his right to remain silent following his arrest. Although evidence was admitted concerning a statement the appellant had made after executing a waiver of his Miranda rights and before invoking his right not to answer any further questions, the appellant's invocation of his right to remain silent was not revealed to the jury. Accordingly, this enumeration of error is without merit. Compare Durden v. State, 250 Ga. 325(3), 297 S.E.2d 237 (1982).
3. During his cross-examination of the investigating officer, appellant's counsel inquired about whether fingerprints had been found at one of the crime sites. The officer responded: "There were no fingerprints because of the gloves." Counsel then asked whether there were any gloves on the prosecutor's table, to which the witness stated: At that point, counsel for the appellant moved for mistrial on the ground that the officer's response was violative of a prior ruling barring the admission of any statements made to law enforcement officers by the appellant's alleged accomplices. The motion was denied, and the jury was instructed to disregard the officer's remark.
On appeal, the appellant contends that the remark was so prejudicial that the trial court's denial of his motion for mistrial deprived him of his right to a fair trial. Viewed in the context of the strong evidence of the appellant's guilt properly before the jury and of the trial court's instruction to the jury to disregard the remark, we conclude that the denial of the motion for mistrial did not constitute an abuse of discretion. See generally Sabel v. State, 250 Ga. 640, 644, 300 S.E.2d 663 (1983), overruled on other grounds in Massey v. Meadows, 253 Ga. 389, 321 S.E.2d 703 (1984).
4. The appellant contends that the trial court erred in admitting into evidence an inculpatory custodial statement which the appellant had made during a conversation with a deputy sheriff at the conclusion of the first day of trial. This conversation had occurred while the two were standing together outside the courthouse waiting for the arrival of a patrol car to transport them to the county jail. The deputy testified that the appellant, with apparent reference to the testimony elicited earlier that day from his two alleged accomplices, spontaneously remarked to him:...
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