Fletcher v. State, 62673

• Decision Date: 02 October 1981
• Docket Number: No. 62673,62673
• Citation: 285 S.E.2d 762,159 Ga.App. 789
• Parties: FLETCHER v. The STATE.
• Court: Georgia Court of Appeals

Page 762

285 S.E.2d 762

159 Ga.App. 789

FLETCHER v. The STATE.

No. 62673.

Court of Appeals of Georgia.

Oct. 2, 1981.

Robert L. Richards, Greenville, for appellant.

Arthur E. Mallory, III, Dist. Atty., Robert S. Ogletree, Asst. Dist. Atty., for appellee.

DEEN, Presiding Judge.

Joseph R. Fletcher was convicted of armed robbery and two counts of aggravated assault.

1. As no objection was made at trial to the in-court identification of him by eye-witnesses to the crimes that the identification was based upon an impermissible out-of-court identification, appellant cannot raise this issue on appeal. Stripling v. State, 155 Ga.App. 636, 271 S.E.2d 888 (1980). The trial court did not err in ruling at the hearing on the pre-trial motion that the lineup was not impermissively suggestive. The fact that the defendant was the only man in the lineup wearing short pants did not unduly draw attention to him because only one of the two persons who viewed the lineup was able to identify him.

2. The trial court did not err in allowing a witness to testify as to the extent of his injuries. The defendant was charged with aggravated assault. "Assault with a deadly weapon is an essential element of the offense of aggravated assault (Code Ann. § 26-1302), and it was necessary to describe the injuries inflicted to establish that the [weapon] was capable of being a deadly weapon." Haygood v. State, 142 Ga.App. 627, 629, 236 S.E.2d 696 (1977). As counsel did not request an instruction that the testimony was to be used for a limited purpose as alleged by the defendant, there is nothing for this court to review on appeal. Jefferson v. State, 157 Ga.App. 324, 277 S.E.2d 317 (1981). The court also did not err in failing to grant a mistrial when no such motion was made. As this issue was not raised in the court below, it is deemed to be abandoned. Royle v. State, 151 Ga.App. 88, 258 S.E.2d 921 (1979).

3. As no objection was made in the court below that the district attorney was leading a witness, there is nothing for this court to review on appeal for the reasons set forth in Divisions 1 and 2 above.

4. The trial court did not charge the jury in a fragmented manner. After the charge, the district attorney requested further instruction on simple assault as required under Emmons v. State, 142 Ga.App. 553, 236 S.E.2d 536 (1977). After the charge was completed, the court asked counsel if there were any objections to the charge. He replied in the negative. The following morning the court gave an expanded charge on assault and after beginning deliberations the jury returned and requested an additional charge on circumstantial evidence. The defendant cannot complain of that portion of the charge to which he stated that he had no objections. Carter v. State, 155 Ga.App. 49, 270 S.E.2d 233 (1980). Mere repetition of the subject of the charge is not grounds for reversal. Bennett v. State, 156 Ga.App. 617, 275 S.E.2d 701 (1980).

5. The trial court did not err in allowing the court reporter to read back the testimony of one of the witnesses following a jury request for such testimony. The trial court in its discretion may permit a jury at its request to rehear testimony after beginning its deliberation. Johns v. State, ...