Geckles v. State
Decision Date | 12 November 1985 |
Docket Number | No. 70878,70878 |
Citation | 338 S.E.2d 473,177 Ga.App. 70 |
Parties | GECKLES v. The STATE. |
Court | Georgia Court of Appeals |
Barry V. Smith, Rome, for appellant.
Stephen F. Lanier, Dist. Atty., Deborah D. Haygood, Asst. Dist. Atty., for appellee.
Carl Geckles brings this appeal from his convictions of rape and aggravated sodomy. Held :
1. On July 12, 1984 appellant was charged in Floyd County Superior Court Indictment No. 23163 with the crimes of incest and sodomy. These crimes were alleged to have been perpetrated upon the same victim (S.M.B.) on March 17, 1984. On November 16, 1984 the trial court granted appellant's motion to dismiss the incest count of the indictment. The trial court determined after a hearing on the matter that appellant was not related to the victim by blood or marriage as required by OCGA § 16-6-22(a). Apparently no prosecution of the sodomy charge in Indictment No. 23163 has occurred. On November 8, 1984 appellant was charged in Indictment No. 23738 with the crimes of rape and aggravated sodomy. These crimes were also alleged to have been perpetrated upon the same victim, S.M.B., but on February 7, 1984. Appellant's convictions in this case are founded upon this latter indictment. Based upon these facts, appellant first enumerates as error the trial court's denial of his plea in bar and subsequent motion in arrest of judgment.
(a) Relying on OCGA § 16-1-7 and McCannon v. State, 252 Ga. 515, 315 S.E.2d 413 (1984), appellant first argues that his prosecution under Indictment No. 23738 was barred as a multiple prosecution of the same transaction. Assuming arguendo that both indictments concerned the same conduct, appellant's assertion State v. Cooperman, 147 Ga.App. 556, 557, 249 S.E.2d 358 (1978). Irwin v. State, 117 Ga. 706, 45 S.E. 48 (1903). See also State v. Hooper, 132 Ga.App. 413, 415, 208 S.E.2d 161 (1974). Neither OCGA § 16-1-7 nor the holding in McCannon v. State supra, require reversal of appellant's convictions under the facts in this case.
(b) Appellant also argues that under OCGA § 16-1-8 his "acquittal" of the incest charge in Indictment No. 23163 barred his subsequent prosecution for rape in Indictment No. 23738. Again assuming arguendo that both indictments concerned the same conduct, this assertion has no merit. Caldwell v. State, 171 Ga.App. 680, 320 S.E.2d 888 (1984). Since appellant had not been placed in jeopardy under Indictment No. 23163, the provisions of OCGA § 16-1-8 did not attach to the dismissal of the incest count of that indictment.
2. Appellant's second enumeration cites as error the trial court's denial of his motion for mistrial or continuance. Appellant's motion came during the State's opening statement to the jury wherein the State proposed to establish the date of the offenses charged in the indictment (No. 23738) as March 17, 1984 rather than the date actually alleged in the indictment, February 7, 1984. Appellant asserted that he intended to rely upon the defense of alibi, and that the proposed variance in date deprived him of his sole defense. The trial court asked appellant's counsel what showing he had for a continuance and how much time he needed, to which counsel responded: The trial court refused to limit the State to proving the date alleged in the indictment, but offered to consider a request for a continuance if counsel believed that there was a possibility he could establish an alibi for the other date and if counsel would state in his place that he had been misled by the subject variance. After conferring with appellant, counsel requested 60 days, due primarily to other pending trial appearances. Counsel stated in his place that appellant would be denied effective assistance of counsel if he did not have at least 60 days. Upon further inquiry by the court, counsel admitted that he was appointed to this case in June 1984 (trial began on January 30, 1985), that he had prepared pretrial motions and attended hearings as to Indictment No. 23163 ( ), and that he had filed a demand for trial upon said earlier indictment.
The rule in this state is that "the [S]tate may prove any date within the period of limitations as held in the general time-variance cases ...; but if defendant, relying upon an alibi defense for the time alleged in the indictment, is surprised and prejudiced by a time variance, upon his motion therefor he will be afforded sufficient time to prepare his defense to meet the new date." Caldwell v. State, 139 Ga.App. 279, 287, 228 S.E.2d 219 (1976). OCGA § 17-8-22. Morris v. Slappy, 461 U.S. 1, 11-12, 103 S.Ct. 1610, 75 L.Ed.2d 610 (1983); Hall v. State, 22 Ga.App. 112(1c), 95 S.E. 936 (1918).
Foster v. State, 213 Ga. 601, 603, 100 S.E.2d 426 (1957). No showing has been made on appeal as to how any additional time would have benefited appellant or how the lack of time harmed him. See Davis v. State, 240 Ga. 763(1), 243 S.E.2d 12 (1978). In the absence of any showing of harm and Campbell v. State, 240 Ga. 352, 356, 240 S.E.2d 828 (1977), cert. den., 439 U.S. 882, 99 S.Ct. 218, 58 L.Ed.2d 194 (1978). Accord Edgehill v. State, 253 Ga. 343(3), 320 S.E.2d 176 (1984); Mann v. State, 167 Ga.App. 829(1), 308 S.E.2d 12 (1983). See also Cherry v. State, 159 Ga.App. 75(1), 282 S.E.2d 717 (1981).
3. In his third enumeration of error appellant utilizes a blunderbuss or shotgun technique to challenge several adverse rulings of the trial court which permitted certain witnesses to give testimony which was purportedly irrelevant, illegally prejudicial and/or hearsay. This technique is not in compliance with the mandate of OCGA § 5-6-40 which requires "an enumeration of the errors which shall set out separately each error relied upon." Compare Mull v. Emory Univ., 114 Ga.App....
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