Goodrum v. State
| Decision Date | 28 April 1981 |
| Docket Number | No. 61729,61729 |
| Citation | 158 Ga.App. 602,281 S.E.2d 254 |
| Parties | GOODRUM v. The STATE. |
| Court | Georgia Court of Appeals |
Alfred D. Fears, William P. Bartles, Jackson, for appellant.
E. Byron Smith, Dist. Atty., Tommy K. Floyd, Asst. Dist. Atty., for appellee.
The defendant brings this appeal from his conviction of the offense of aggravated assault. Held:
1. It is alleged that the trial court erred by intervening in defense counsel's cross-examination of a state witness.
The defendant was charged with shooting Sammy Robinson with a rifle. A confrontation occurred at the home of Donish Pye when the defendant demanded Robinson pay him $3.00 that he owed him. Robinson was the foreman of a construction crew on which the defendant worked. Robinson had fired him. A witness testified that when the defendant demanded $3 Robinson reached in his pocket and brought out his money but also had a closed knife. The defendant returned to his car and produced a rifle. The witness, Freddie Childs, stated that he pushed Robinson back into Pye's house and took the $3 to Robinson who refused to accept it and departed. Robinson then drove to his home, approximately "five houses" down the same street. The witness saw the defendant drive in the same direction. As Robinson was trying to unlock his front door the defendant "jumped out and when he come out, he come out with the gun and went to shooting."
On cross-examination the witness was asked: The district attorney objected on the basis that counsel was The court sustained the objection and instructed the jury to disregard as "(t)here has been no evidence that anybody gave anybody a signal...." The next question by counsel was:
Although a defendant has a right to a thorough and sifting cross-examination of the witness (Code Ann. § 38-1705 (Code § 38-1705)), the scope of cross-examination is not unlimited (Decker v. State, 139 Ga.App. 707, 708, 229 S.E.2d 520), and the extent of examination is largely within the discretion of the trial judge and will not be controlled by an appellate court except for abuse of discretion. Mitchell v. State, 236 Ga. 251, 256, 223 S.E.2d 650. In the instant case, counsel has been curtailed on this same subject matter just prior to the ruling now complained of on appeal. We find no abuse of discretion of the procedure used by the trial court. Post v. State, 201 Ga. 81, 83, 39 S.E.2d 1.
2. Defendant contends it was error for the trial court, over objection, "to allow the state to introduce testimony into evidence not properly the subject of redirect examination." On redirect the district attorney explained that he had only one question, and proceeded to ask it. A ruling of the court was not obtained.
"Redirect examination and recross are strictly speaking, not for the purpose of introducing new matter, but the judge in his discretion may permit the questioner to inquire about something which he should have asked about during an earlier step but which was overlooked." Green, Ga. Law of Evidence 317, Witnesses § 126; Accord, Aycock v. State, 62 Ga.App. 812 (2), 10 S.E.2d 84; Watson v. State, 153 Ga.App. 545, 548 (3), 265 S.E.2d 871; see also Britten v. State, 221 Ga. 97, 101, 143 S.E.2d 176; Butler v. State, 226 Ga. 56 (9), 172 S.E.2d 399. The trial court did not abuse its discretion.
3. Defendant enumerates as error the trial court's refusal to charge his requested instructions on "presumption of innocence," "bare suspicion," "reasonable doubt," "presumption that no crime has been committed," and "presumption of innocence" and "reasonable doubt" as it applies to facts "susceptible to two (2) interpretations."
"Where the charge given substantially covers the applicable principles, failure to give requested instructions in the exact language requested is not error." Leutner v. State, 235 Ga. 77, 81, 218 S.E.2d 820; Crawford v. State, 236 Ga. 491, 493, 224 S.E.2d 365. The trial court adequately and fairly charged the jury on the subject matter of all requested instructions. Enumerations of error 3, 4, 5, 7, and 8 are without merit.
4. Counsel also requested a charge upon the duty of a juror to discuss and consider the opinions of other jurors. The charge was similar to the so-called "Allen" or "dynamite" charge usually reserved for deadlocked juries. See Allen v. United States, 164 U.S. 492, 17 S.Ct. 154, 41 L.Ed.2d 528. We have held before that "the trial jurist should have discretion as to the time when the jurors should be informed as to their duties in this respect" and it is not error to refuse to give it in charge in the initial instructions. Mize v. State, 140 Ga.App. 17 (5), 230 S.E.2d 81; see also Thornton v. State, 145 Ga.App. 793, 794, 245 S.E.2d 22.
5. The court did not err in giving a charge on flight. The witness Childs stated that he saw the defendant shoot the victim, then get in his car and leave. A witness who lived across the street from the victim saw "a black man" shoot Sammy Robinson from the "middle of the street" while Robinson "was unlocking his door." After the man shot Robinson, "(h)e got in his car and left." Mrs. Brown, Robinson's next door neighbor, heard the shots and went outside. She saw Robinson, still attempting to open his door. She asked him if he was shot. He said yes. Mrs. Brown also knows the defendant. She did not see him or his automobile at that time.
" 'It is for the jury to determine whether the flight of the defendant, if any such has been proven, was due to a sense of guilt or for other reasons, and if for other reasons no inference utterable to the defendant on trial should be drawn.' " Byers v. State, 236 Ga. 599, 600 (2), 225 S.E.2d 26. Thus, where the defendant departs the scene immediately after the incident, it is not error to give in charge "flight" of the defendant for it is for the jury to determine if his sudden departure was due to consciousness of guilt or other reasons. Nair v. State, 236 Ga. 892, 894 (2), 226 S.E.2d 61. The state requested the charge. Under the facts of the instant case, it was not error to give it.
6. Defendant contends that the offense for which he was convicted was a "reducible felony" under Code Ann. § 26-3101 (Ga.L. 1968, pp. 1249, 1334) and "it was harmful error for the Trial Court to fail to charge the Jury that they could recommend misdemeanor punishment upon a finding of guilty." We do not agree.
Code Ann. § 26-3101 (a) provides, in part, that "the jury that determines the sentence may recommend that the defendant be punished as for a misdemeanor." However, under Code Ann. § 27-2503 (Ga. L.1974, pp. 352, 357), in non-capital cases the judge now determines sentence after a verdict or plea of guilty. This Court held that "(t)he legislature's...
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... ... Page 893 ... which was overlooked.' Green, Ga. Law of Evidence 317, Witnesses § 126; [Cits.]" Goodrum v. State, 158 Ga.App. 602(2), 281 S.E.2d 254 (1981). "The trial judge, in his discretion, found the evidence brought in on re-direct examination to be relevant and admissible. Absent a [251 Ga. 268] showing of gross abuse of discretion, we find no error. [Cits.]" Maher v. State, 239 Ga. 305, ... ...
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