Grant v. State

• Decision Date: 11 February 1977
• Docket Number: No. 53238,No. 2,53238,2
• Citation: 233 S.E.2d 249,141 Ga.App. 272
• Parties: Bobby GRANT v. The STATE
• Court: Georgia Court of Appeals

Page 249

233 S.E.2d 249

141 Ga.App. 272

Bobby GRANT v. The STATE.

No. 53238.

Court of Appeals of Georgia, Division No. 2.

Feb. 11, 1977.

J. M. Salome, Robert S. Windholz, Atlanta, for appellant.

Lewis R. Slaton, Dist. Atty., Joseph J. Drolet, Donald J. Stein, Russell Parker, Asst. Dist. Attys., Atlanta, for appellee.

QUILLIAN, Presiding Judge.

The defendant, James Burdshaw and Tommy Merritts, were indicted for the offenses of terroristic threats, two counts, and criminal possession of an incendiary. Defendant was acquitted of the two counts of terroristic threats, but convicted for criminal possession of the incendiary. He appeals. Held :

1. He enumerates as error, the failure of the court to direct a verdict of acquittal on the charges alleging terroristic threats. He argues that a verdict of acquittal was demanded by the evidence and the refusal to enter a directed verdict permitted the jury to consider "highly prejudicial evidence irrelevant to count three," the incendiary possession charge. He contends that the "prosecution inferred that the alleged Molotov Cocktail was somehow connected to the threats," and the refusal of the court to direct a verdict of acquittal at the close of the state's case, "prejudice(d) the appellant by allowing the jury to consider evidence wholly unconnected with the charge of possession of an incendiary."

(a) We decline to follow the argument of defendant. This court held in Henderson v. State, 134 Ga.App. 898(1), 216 S.E.2d 696, that the subsequent acquittal of a defendant rendered harmless alleged error in denial of a directed verdict of acquittal.

We will not speculate as to the reason for defendant's acquittal of the two counts alleging terroristic threats, but acquittal alone for those offenses would not prevent the prosecution from utilizing evidence admitted primarily to establish those offenses, if such evidence was also material and relevant to the remaining incendiary possession charge. Cf. Kincaid v. State, 137 Ga.App. 138, 139(1), 223 S.E.2d 152. For example, if a defendant made the statement to an alleged victim that unless he did a specified act he would be forced to "take other measures." Whether the defendant was charged with the offense of terroristic threats for uttering those words, or was charged with and acquitted of terroristic threats alleging those words were a threat, would not prevent introduction of that statement and its use in argument to support an element of a charged offense of criminal possession of an incendiary weapon. The communication to an alleged victim of a statement to "take other measures" is material and relevant to prove the purpose and criminal intent in possession of an incendiary device. If such utterance tends to identify a defendant as the guilty party, or shows motive, plan, scheme, bent of mind, and course of conduct, it would be admissible. McNeal v. State, 228 Ga. 633(5), 187 S.E.2d 271.

In addition such statements would be admissible as tending to show the animus or malice of defendant. Lampkin v. State, 145 Ga. 40(1a), 88 S.E. 563; Randall v. State, 176 Ga. 897, 898, 169 S.E. 103; Pierce v. State, 212 Ga. 88, 89(1), 90 S.E.2d 417; Harrison v. State, 60 Ga.App. 610, 614, 4 S.E.2d 602; see generally 22A C.J.S. Criminal Law § 607. Here, the defendant denied the terroristic threats and possession of weapons, and when they talked to the state's witnesses, testified that the alleged incendiary device was in the automobile because he had visited the co-defendant when he was working on his car and "(h)e grabbed his rag and tools and bottle and threw it in the back (of the car) and that was the end of it." The other defendant stated that he had drawn the gas out of his car to "prime the carburetor" but couldn't start his car. When the defendant arrived he "grabbed something out of the back, some stuff that goes on a Christmas tree and . . . stuck it down in the bottle and stuck it in the back of the car." The defendants were arrested at approximately 11:30 p. m., near the home of the alleged victim. Two pistols and the incendiary device were found in the car.

(b) One of the state's witnesses testified that the three defendants came to his house, looking for his wife's nephew. They were unsuccessful in locating him and told the witness that the nephew had robbed them of $5,700. The state's witness was called on the telephone and told that the caller was "one of the guys out there earlier that day . . . they wanted their money back . . . somebody knows where (the nephew) lives and (they) are going to get him and (their) money back, whatever it takes . . . if we have to fill your house full of lead." The next day someone called again attempting to locate the nephew. A policeman was listening on an extension phone. The caller asked the person "listening in" to hang up and then stated: "Somebody is still listening in. We are just going to drop the conversation now and we will proceed with step number three." Apparently, "step number three" involved the two pistols and the incendiary device as the three defendants were arrested by the police on stakeout duty at the home of the state's witness.

The supreme court, in Merino v. State, 230 Ga. 604, 605, 198 S.E.2d 311, 312, held that "it constitutes reversible error for the trial court to refuse to direct a verdict of acquittal where there is absolutely no conflict in the evidence and the verdict of acquittal is demanded as a matter of law." Applying this test to the facts of this case, it was not error for the trial court to refuse to grant a directed verdict of acquittal. Jones v. State, 139 Ga.App. 643(3), 229 S.E.2d 121.

2. Defendant alleges error was committed by the court in admission of (a)...