Ezebuiro v. the State.

• Decision Date: 08 March 2011
• Docket Number: No. A11A0111.,A11A0111.
• Citation: 707 S.E.2d 182,308 Ga.App. 282
• Parties: EZEBUIROv.The STATE.
• Court: Georgia Court of Appeals

308 Ga.App. 282

707 S.E.2d 182

11 FCDR 699

EZEBUIRO

v.The STATE.

No. A11A0111.

Court of Appeals of Georgia.

March 8, 2011.

Benjamin A. Davis Jr., Atlanta, for appellant.Lee Darragh, District Attorney, Juliet Aldridge, Assistant District Attorney, for appellee.BLACKWELL, Judge.

Chinwendu Ezebuiro was tried by jury in Hall County and convicted of robbery by intimidation in violation of OCGA § 16–8–40(a)(2). Ezebuiro appeals from the judgment of conviction, asserting that the trial court erred when it allowed the victim—a 66–year–old woman who, at the time of the trial, apparently required the help of medical personnel to travel to the courthouse—to testify in rebuttal while seated on an ambulance gurney. Ezebuiro also appeals from her sentence, contending that the trial court did not follow the proper procedures when it required her to make restitution to the victim as a part of her sentence. We see no error and affirm.

Viewed in the light most favorable to the verdict,¹ the record shows that, in January 2009, the victim advertised for someone to help her with light housekeeping and errands. Ezebuiro responded to this advertisement, and the victim made arrangements to interview Ezebuiro. As a part of the interview, Ezebuiro accompanied the victim on her errands, and during the course of the day, Ezebuiro had an opportunity to observe that the victim carried significant amounts of cash in her car.

After the errands were finished, the victim told Ezebuiro that she would contact Ezebuiro later with a decision about the job. Ezebuiro then became agitated and demanded to be paid for the time she had spent that day with the victim. When the victim explained that she had no cash in her house, Ezebuiro and the victim went to the victim's car, where Ezebuiro grabbed the victim's arm, turned her around, hit her with the car door, and took $500 cash and $300 in money orders from the car before leaving the scene. The victim contacted law enforcement, and Ezebuiro eventually was arrested and charged with robbery by intimidation and battery of a person aged 65 years or older.

The trial took place over four days, and the evidence was presented on the second and third days.² The prosecutor called the victim as a witness on the first day of evidence, and because the victim typically used a wheelchair and apparently could not travel to the courthouse without assistance, the prosecutor's office made arrangements for a medical transport company to bring the victim and her wheelchair to the courthouse. The trial court permitted the victim to testify while seated in her wheelchair, and Ezebuiro did not object to the jury seeing the victim in a wheelchair.

While investigating the robbery with which Ezebuiro eventually was charged, police investigators interviewed the victim and made an audio recording of the interview. When Ezebuiro was afforded the opportunity to cross-examine the victim on the first day of evidence, her lawyer did not ask the victim about this interview. But the following day, her lawyer played a portion of the audio recording of the interview while examining an investigator. The prosecutor then decided to recall the victim as a rebuttal witness, so that the victim could explain statements that she made during the interview.

When the prosecutor decided to recall the victim in rebuttal, there was not enough time to make arrangements with the same medical transport company to bring the victim again to the courthouse in her wheelchair, and the prosecutor's office instead asked the Hall County Fire Department to transport the victim to court. Hall County Fire Department paramedics did so, but they could not transport the victim while she was seated in a wheelchair, so they instead brought the victim to court on a gurney. For reasons that are not clear from the record, the paramedics did not bring along the victim's wheelchair, so that she might be transferred from the gurney to the wheelchair upon her arrival at the courthouse.

The victim testified in rebuttal while seated on the gurney,³ and Ezebuiro timely objected, claiming that the sight of the victim on a gurney would generate improper sympathy for the victim, perhaps imply that the condition of the victim was worsening, and in any event, prejudice Ezebuiro. The trial court overruled this objection, but it offered to explain to the jury why the victim was seated on a gurney, instead of her wheelchair. Ezebuiro objected, however, to the trial court giving the jury any such explanation.

After the victim testified, Ezebuiro moved for a mistrial. The trial court denied this motion, and the case was submitted to the jury, which returned a verdict of guilty on the robbery charge. The court sentenced Ezebuiro to one year of imprisonment, followed by seven years of probation. As a special condition of her probation, the court ordered Ezebuiro to make restitution in the amount of $800. Ezebuiro now appeals her conviction and the requirement that she make restitution as a special condition of probation.

1. We turn first to the contention that the trial court erred when it permitted the victim to testify while seated on a gurney. It is well settled that a trial court is vested with “considerable discretion in its conduct of court proceedings.” Lonergan v. State, 281 Ga. 637, 640(4), 641 S.E.2d 792 (2007). This considerable discretion includes discretion to make reasonable accommodations for the comfort and care of witnesses with special needs. See Williamson v. State, 234 Ga.App. 658, 658–59(2), 507 S.E.2d 765 (1998) (finding no abuse of discretion where trial court permitted grandmother to stand near nine-year-old victim of child molestation while he testified). Unless the trial court has abused its wide and considerable discretion, we will not interfere on appeal with the exercise of this discretion. See Lemley v. State, 245 Ga. 350, 353–354(3), 264 S.E.2d 881 (1980). We see no abuse of discretion here.

Ezebuiro does not dispute that the victim required the assistance of medical personnel to travel to the courthouse, and we accept that the victim required such assistance. When the prosecutor recalled the victim as a rebuttal witness, the press of time did not allow the prosecutor's office to make arrangements with the medical transport company that previously had brought the victim to court in her wheelchair. The prosecutor's office instead relied on the local fire department to bring the victim to the courthouse, and the fire department transported her in the only way it apparently could, on a gurney. It would have been better, of course, if the fire department also had brought along her wheelchair—so that she could be transferred from the gurney to the wheelchair before she entered the courtroom—but it did not. And after Ezebuiro sought a mistrial, the prosecutor testified out of the presence of the jury and explained that she had nothing to do with the decision of the fire department to leave the wheelchair behind.

When the victim arrived in the courtroom on a gurney, late in the afternoon of the last day on...