Frazier v. State, 51907

• Decision Date: 14 May 1976
• Docket Number: No. 51907,No. 2,51907,2
• Citation: 227 S.E.2d 284,138 Ga.App. 640
• Parties: G. W. FRAZIER v. The STATE
• Court: Georgia Court of Appeals

Page 284

227 S.E.2d 284

138 Ga.App. 640

G. W. FRAZIER v. The STATE.

No. 51907.

Court of Appeals of Georgia, Division No. 2.

May 14, 1976.

Jim Jenkins, Atlanta, for appellant.

William F. Lee, Jr., Dist. Atty., Newnan, Robert H. Sullivan, Asst. Dist. Atty., Carrollton, for appellee.

PANNELL, Presiding Judge.

The defendant was indicted for violating the Georgia Controlled Substances Act and for simple battery. He was acquitted on the simple battery charge and was convicted of possessing marijuana in violation of the Georgia Controlled Substances Act. He appeals the judgment of conviction.

The evidence shows that appellant lived in a rented trailer which was located on approximately 17 acres of wooded land owned by a third party. Law enforcement officers proceeded to this property to serve a search warrant for appellant's 'trailer, outbuildings, vehicles and occupants.' One of the officers located appellant in the woods behind the trailer through the use of a pair of binoculars. Appellant was sitting over an open box with a clear bag of marijuana, which he was apparently weighing with a set of hand scales.

The officer proceeded to the place where appellant was located. As the officer approached the area, appellant looked up and saw him. Appellant then attempted to run and was caught by the officer. The officer testified that a fight ensued, and appellant was placed under arrest.

1. Appellant urges error in the trial court's denying his motion to sever the possession of marijuana and the simple battery counts. Code § 26-506 provides: '(b) If the several crimes arising from the same conduct are known to the proper prosecuting officer at the time of commencing the prosecution and are within the jurisdiction of a single court, they must be prosecuted in a single prosecution except as provided in subsection (c). (c) When two or more crimes are charged as required by subsection (b), the court in the interest of justice may order that one or more of such charges be tried separately.'

Appellant argues that the interests of justice required that the judge sever the charges against him and order separate trials thereon. In his motion, appellant urged severance on the ground that he desired to take the stand and testify regarding the simple battery charge; he wished to assert his right to remain silent regarding the marijuana charge. He argues on appeal that a trial on both counts forced him to take the stand and assert his fifth amendment privilege regarding the marijuana charge, which prejudiced his case.

'The only test under the new Criminal Code is whether the interests of justice will be served by ordering separate trials. The judge may order the charges tried separately but he is not required to do so if in his opinion the interests of justice will not be served thereby.' (Emphasis supplied.) Henderson v. State, 227 Ga. 68, 76, 179 S.E.2d 76, 83. In the present case, both charges were part of one transaction. The circumstances of appellant's flight from the officer would have been admissible upon a trial of the single count of possessing marijuana. See Richardson v. State, 113 Ga.App. 163, 147 S.E.2d 653. "From the nature of the entire transaction it would be almost impossible to present to a jury evidence of one of the crimes without also permitting evidence of the other crimes to be introduced since they were all a part of one continuous transaction . . ." Owens v. State, 233 Ga. 905, 910, 213 S.E.2d 860, 864. We think the trial judge was justified under the facts of this case in concluding that the interest of justice would not be served by ordering separate trials.

2. Appellant contends that the court erred in limiting his questioning of potential jurors during voir dire.

(a) The trial judge sustained the State's objections to numerous questions dealing with the juror's opinion regarding various criminal laws and the application of the standard of proof in criminal cases. We have carefully examined each of these questions and have concluded that the judge properly prohibited the question in each instance.

"Although counsel has a right to inquire as to the qualifications of the veniremen and their prejudices so as to provide a foundation for a challenge for cause or a peremptory challenge . . . it is well settled that it is simply not the province of counsel to question prospective jurors as to their attitudes or knowledge of matters of law . . . In examining a prospective juror, counsel for the accused should not ask technical legal questions in regard to the presumption of innocence, but should confine his questions to those which may illustrate any prejudice of the juror against the accused, or any interest of the juror in the cause." Lundy v. State, 130 Ga.App. 171, 173, 202 S.E.2d 536, 539.

( b) The trial court also prohibited the defense counsel from asking the prospective jurors if they had ever served on a grand or petit jury. The trial judge has the discretion to limit the examination of prospective jurors to questions dealing directly with the specific case. Under Code § 59-705, counsel 'shall have the right to inquire of the individual jurors examined touching any matter or thing which would illustrate any interest of the juror in the cause, including . . . any fact or circumstance indicating any inclination, leaning or bias which the juror might have respecting the subject-matter of the suit . . .' (Emphasis supplied.) Whether or not the potential juror had previously served on a grand or petit jury would not have been relevant to the 'subject matter of the suit.' See McGinnis v. State, 135 Ga.App. 843(2), 219 S.E.2d 485. Accordingly, the trial judge committed no error in prohibiting the above questions.

(c) The trial court sustained the State's objections to all questions relating to the following: (1) The employment of the prospective juror's children; (2) Whether or not they smoked cigarettes; (3) Whether or not they drank alcohol; and (4) What newspapers or magazines they regularly read.

' The single purpose for voir dire is the ascertainment of the impartiality of jurors, their ability to treat the cause on the merits with objectivity and freedom from bias and prior inclination. The control of the pursuit of such determination is within the sound legal discretion of the trial court, and only in the event of manifest abuse will it be upset upon review.' Whitlock v. State, 230 Ga. 700, 706, 198 S.E.2d 865, 868. 'The language of Code Ann. § 59-705 is broad, but the trial judge still retains the discretion to limit the examination to questions dealing directly with the specific case and to prohibit general questions . . .' Hill v. State, 221 Ga. 65, 69, 142 S.E.2d 909, 912. As stated in division 2(b) above, counsel has the right to inquire of the individual jurors respecting any fact or circumstance indicating any inclination, leaning or bias which the juror might have respecting the subject matter of the suit. Although the above questions might indicate a leaning or bias of the juror regarding some particular subject, they do not relate to the juror's leaning or bias respecting the subject matter of this particular suit. We, therefore, hold that the trial court did not abuse its discretion in refusing to permit counsel for the accused to ask the prospective jurors the above questions.

3. In closing argument, the district attorney made the following remarks to the jury: 'I have every confidence in the world that you will do the right thing. I didn't have to ask you eight, ten, or twenty questions about...