Green v. State, A92A1746
| Decision Date | 18 March 1993 |
| Docket Number | No. A92A1746,A92A1746 |
| Citation | 429 S.E.2d 694,208 Ga.App. 1 |
| Parties | GREEN v. The STATE. |
| Court | Georgia Court of Appeals |
Friedman, Donaldson & Phillips, Robert P. Phillips III and Todd A. Hall, Savannah, for appellant.
Spencer Lawton, Jr., Dist. Atty. and David T. Lock, Asst. Dist. Atty., for appellee.
After being tried for murder, two counts of aggravated assault, armed robbery, and two counts of possession of a firearm during the commission of a felony, Johnny Green was convicted only of the armed robbery. He now appeals that conviction. Green contends the trial court erred by refusing to accept a verdict even though the jury had returned to the courtroom and had announced it had reached a verdict on all charges, by recharging the jury after it had reached a verdict, by giving a repetitive, inaccurate and misleading recharge that was unduly coercive and unfairly suggestive, by excluding the testimony of a clinical psychologist, and by refusing to grant a timely motion for a continuance.
Green's brief does not comply with Rule 15 of this court; the argument is not numbered sequentially following the enumerations of error, but is one continuous argument. Rule 15 (c)(1). Further, some arguments are without citations of authority. Rule 15(c)(2). Held:
1. The transcript shows that Green's first two enumerations of error, concerning charging the jury after the jury announced it had reached a verdict on all counts, arises from the trial court's attempt to correct what it believed was an erroneous response to the jury's request for further instruction. Before the recharge could be given, however, the jury advised that it had reached a verdict. Although the jury was returned to the courtroom, it was directed not to announce its verdict, and this verdict was not published. Then the trial court recharged the jury to correct the earlier instruction, and returned the jury for further deliberation. The jury later returned, and published in open court, a verdict finding Green guilty of armed robbery. We find no error.
The trial court is obliged to charge the jury on the law applicable to the case. Pope v. State, 52 Ga.App. 411, 413, 183 S.E. 630. Therefore, the trial court was authorized to correct any errors in the charge (Turner v. State, 178 Ga.App. 888, 889-890, 345 S.E.2d 99; Barraza v. State, 149 Ga.App. 738, 739, 256 S.E.2d 48), and could do so sua sponte. Litmon v. State, 186 Ga.App. 762, 763, 368 S.E.2d 530. Thus, the only issue is whether the trial court was precluded from doing so because the jury advised that it had reached and was ready to announce its verdict. Since "[v]erdicts acquire their legality from return and publication" (Bradley v. State, 135 Ga.App. 865, 870, 219 S.E.2d 451), there was no verdict in this case until it was received and published in open court. Bell v. State, 163 Ga.App. 672, 674, 295 S.E.2d 147; Harden v. State, 160 Ga.App. 514, 516, 287 S.E.2d 329. Therefore, we hold that it was not error to recharge the jury because the verdict was not yet received in open court. Mathews v. State, 176 Ga.App. 394, 395, 336 S.E.2d 259; Maltbie v. State, 139 Ga.App. 342, 345, 228 S.E.2d 368. As the cases Green relies upon concern verdicts which were announced in open court or were incomplete for some reason, they are not persuasive. Moreover, since the court did not know what the jury's verdict had been prior to the giving of the corrective charge, it cannot be said that the recharge was an attempt to alter the jury's verdict. It must be assumed that the verdict as it was actually published was the correct verdict given under the corrective charge. Accordingly, the first two enumerations of error are without merit.
2. Green's third enumeration contends that the recharge was repetitive, contained inaccurate and misleading statements of the law, was unduly coercive and unfairly suggestive. The argument intended to support the enumeration, however, simply restates or rephrases the enumeration, e.g., "the recharge ... was not a correct statement of the law" or "failed to charge the correct law," recites generally what the court stated, e.g., the "court first talked about what was theoretically possible" and "the court talked about conspiracy which it commingled with the definition of robbery," but the argument cites no authority, identifies no particular erroneous statement of the law, and contains no reference to the transcript. (Citations and punctuation omitted.) Chesser v. Wallace, ...
To continue reading
Request your trial
-
Washington v. State
...no verdict in this case until it was received and published in open court." (Citation and punctuation omitted.) Green v. State , 208 Ga.App. 1, 2 (1), 429 S.E.2d 694 (1993). As a result, the jury's notes that it had deadlocked were not controlling once it returned its verdict. See State v. ......
-
Cawthon v. State
...a single sentence making a conclusory allegation that evidence was insufficient to support his conviction); Green v. State , 208 Ga. App. 1, 2-3 (2), 429 S.E.2d 694 (1993) ("The principal purpose of argument is to provide guidance to this [C]ourt on the basis for a claim of error and for ci......
-
Davis v. State
...attempted to lift fingerprints. 15. See Carter v. State, supra, 237 Ga.App. at 706(1)(b), 516 S.E.2d 556. 16. Green v. State, 208 Ga.App. 1, 2-3(2), 429 S.E.2d 694 (1993). 17. (Citation and punctuation omitted.) Joint Venture v. McDaniel, 224 Ga.App. 716(1), 481 S.E.2d 836 18. Pickens v. St......
-
Wellstar Health Sys., Inc. v. Sutton, s. A12A1426
...they had acquitted defendant of murder was not a verdict because it was not received and published in open court); Green v. State, 208 Ga.App. 1, 2(1), 429 S.E.2d 694 (1993) (although jury advised court that it had reached a verdict, there was no verdict at that point because it had not bee......