Frazier v. State, 51907

CourtUnited States Court of Appeals (Georgia)
Writing for the CourtPANNELL
Citation227 S.E.2d 284,138 Ga.App. 640
PartiesG. W. FRAZIER v. The STATE
Docket NumberNo. 51907,No. 2,51907,2
Decision Date14 May 1976

Page 284

227 S.E.2d 284
138 Ga.App. 640
No. 51907.
Court of Appeals of Georgia, Division No. 2.
May 14, 1976.

Page 285

[138 Ga.App. 646] Jim Jenkins, Atlanta, for appellant.

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

Page 286

[138 Ga.App. 640] 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 [138 Ga.App. 641] 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 [138 Ga.App. 642] 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

Page 287

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...

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32 cases
  • Caldwell v. State, 52257
    • United States
    • United States Court of Appeals (Georgia)
    • July 9, 1976
    ...446. But see Royal v. State, 134 Ga.App. 203, 213 S.E.2d 561. Compare Hancock v. State, 127 Ga.App. 21, 192 S.E.2d 435; Evans v. State, 138 Ga.App. 640, 227 S.E.2d 6 California: People v. Morris, 3 Cal.App. 1, 84 P. 463(5); People v. Waits, 18 Cal.App.2d 20, 62 P.2d 1054; People v. McCullou......
  • Castell v. State, 39080
    • United States
    • Supreme Court of Georgia
    • March 16, 1983
    ...trial court did not err in refusing to allow the defendant to ask prospective jurors about their prior jury service, Frazier v. State, 138 Ga.App. 640(2b), 227 S.E.2d 284 (1976); to ask prospective jurors if they would be more likely to believe law enforcement officers, or less likely to be......
  • Henderson v. State, 39782
    • United States
    • Supreme Court of Georgia
    • September 8, 1983
    ...Code section is written in general terms. Illustrative of such generality and the problems it causes, it was held in Frazier v. State, 138 Ga.App. 640, 643, 227 S.E.2d 284 (1976), that the phrase "respecting the subject matter of the suit [action]" in OCGA § 15-12-133 (Code Ann. § 59-705), ......
  • Fatora v. State, s. 75000
    • United States
    • United States Court of Appeals (Georgia)
    • November 5, 1987
    ...experience as well as study and mental application. Carter v. Marble Products Inc., 179 Ga. 122(1) (175 S.E. 480); Frazier v. State, 138 Ga.App. 640, 645 (227 SE2d 284)." Dennis v. State, 158 Ga.App. 142, 143(3), 279 S.E.2d 275. In the case sub judice, the evidence showed that the State's p......
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