Green v. State, 71802
| Decision Date | 10 March 1986 |
| Docket Number | No. 71802,71802 |
| Citation | 342 S.E.2d 386,178 Ga.App. 203 |
| Parties | GREEN v. The STATE. |
| Court | Georgia Court of Appeals |
Eddie C. Varnadore, Marietta, for appellant.
Thomas J. Charron, Dist. Atty., James F. Morris and Nancy I. Jordan, Asst. Dist. Attys., for appellee.
Kenneth Avon Green appeals from his conviction of aggravated assault with a gun, a deadly weapon. The evidence presented at trial showed that at approximately midnight on May 24, 1985, three brothers, Darrell, Leon and Stanley Horne, dropped in on a dice game going on in a back room at the Bomber City Elks Club in Marietta. Darrell and Leon placed a couple of winning five dollar bets and then left after about five minutes, apparently annoying appellant who made some loud remarks to them and followed them out of the club with a gun in his hand. When Stanley joined his brothers outside, appellant walked up to him and said, "Give me my money." Upon Stanley's refusal appellant began hitting him with the pistol, which discharged, striking Stanley in the forehead. As Stanley ran away, appellant fired at him four more times, but missed.
1. We do not agree with appellant that the trial court erred in granting the State a four-hour continuance to produce its witnesses after announcing ready and giving its opening argument because no showing of due diligence was made. On the contrary, the assistant district attorney informed the trial court that the State's witnesses, the three Horne brothers, had missed their scheduled flight to Atlanta, and he would need the additional time until they arrived on a later flight and could be brought to court. All applications for continuance are addressed to the sound legal discretion of the trial court, OCGA § 17-8-22, and questions of this nature must of necessity be entrusted to its broad discretion. In the absence of any showing of harm to appellant by this delay, we find no abuse of discretion which would compel reversal. See Geckles v. State, 177 Ga.App. 70(2), 338 S.E.2d 473 (1985).
2. The trial court allowed testimony of one Joe D. Stukes that on October 15, 1983, at approximately midnight, he attended a party at someone's house where appellant and several other persons were playing dice. After Stukes participated and won a small amount of money, appellant began arguing that the money was not Stukes', so he left. Appellant chased after Stukes and demanded that Stukes give appellant "his" money or he would blow Stukes' brains out. Stukes complied and appellant left. At trial Stukes identified appellant as his assailant.
Appellant argues that evidence of other criminal acts may not be admitted unless it is substantially relevant for some purpose other than to show a probability that the accused committed the crime on trial because he is a man of criminal character, and that this act of gambling committed six months previously did not justify its use to show a pattern of conduct. See Walraven v. State, 250 Ga. 401(4b), 297 S.E.2d 278 (1982). We find no merit in this contention.
Evidence of an independent crime is admissible if it is shown, as was done here, that the accused was the perpetrator of the independent crime and that there is sufficient similarity between the independent crime and the offense charged that proof of the former tends to establish the latter. Walker v. State, 176 Ga.App. 783, 338 S.E.2d 36 (1985). It is not essential for admissibility that the similar crime resulted in a conviction. See, e.g., Sport v. State, 253 Ga. 689(1), 324 S.E.2d 184 (1985); Scott v. State, 172 Ga.App. 725(1), 324 S.E.2d 565 (1984); Mathis v. State, 172 Ga.App. 314(1), 323 S.E.2d 227 (1984). The evidence objected to was proffered to demonstrate appellant's propensity to threaten and assault other participants in dice games over relatively small amounts of money, and was sufficiently similar to be admissible for this purpose. Sport, supra.
3. During the course of his testimony Stukes related that when he picked up the money he had won in the dice game, "one of the guys in the house said that [appellant] said he was going to shoot me or he was going to kill me." Defense counsel objected on hearsay grounds...
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