Harwell v. State

• Decision Date: 12 March 1998
• Docket Number: No. A97A1952,A97A1952
• Parties: , 98 FCDR 1201 HARWELL v. The STATE.
• Court: Georgia Court of Appeals

Page 672

497 S.E.2d 672

231 Ga.App. 154, 98 FCDR 1201

HARWELL v. The STATE.

No. A97A1952.

Court of Appeals of Georgia.

March 12, 1998.

Certiorari Granted June 15, 1998.

Hagler, Hyles, Adams & McKenna, Clark C. Adams, Jr., Columbus, for appellant.

J. Gray Conger, District Attorney, Margaret E. Bagley, Assistant District Attorney, for appellee.

BEASLEY, Judge.

Harwell was convicted of armed robbery (OCGA § 16-8-41(a)) and aggravated assault with intent to rob (OCGA § 16-5-21(a)(1)). He and an accomplice used a stun gun to rob the assistant manager at Harwell's former place of employment, a restaurant. According to the victim, the robbers "stunned ... or shocked [him] down the leg maybe four times on their way out" with the money. Although the assailants wore stocking masks, the victim observed the robbers' facial characteristics and was familiar with the lead robber's voice and "person." He identified Harwell as an assailant while examining a police photographic lineup some two weeks after commission of the crimes charged. A new trial was denied.

1. The first alleged error is the denial of Harwell's motion to exclude the testimony of a witness who was not on the State's witness list.

Applicable in this case is OCGA § 17-7-110, which was repealed by Ga.L.1994, p 1895, § 1, effective January 1, 1995, after Harwell's indictment. It provided: "Prior to his arraignment, every person charged with a criminal offense shall be furnished with a copy of the indictment or accusation and, on demand, with a list of the witnesses on whose testimony the charge against him is founded. Without the consent of the defendant, no witness shall be permitted to testify for the state whose name does not appear on the list of witnesses as furnished to the defendant unless the prosecuting attorney shall state in his place that the evidence sought to be presented is newly discovered evidence which the state was not aware of at the time of its furnishing the defendant with a list of the witnesses."

The purpose of this law was to give the defendant reasonable opportunity to interview a witness before trial. Willett v. State, 223 Ga.App. 866, 870-871(2), 479 S.E.2d 132 (1996). It is undisputed that, seven days before trial, the State's attorney verbally informed Harwell's counsel that the State would be calling an unlisted witness to testify at trial; that the State's attorney gave defense counsel this witness' address and telephone number at least four days before trial; and that defense counsel contacted the unlisted witness before trial but she "refused to talk to him." When defendant moved at trial to exclude her testimony, the court directed the State's attorney to compel the witness to talk to defense counsel. The State's attorney complied, as did the unlisted witness.

Defendant was not harmed by the State's failure to include the witness on the written list. The court did not abuse its discretion in denying the motion to exclude her testimony. See Logan v. State, 170 Ga.App. 809, 318 S.E.2d 516 (1984) (defendant not prejudiced by oral notification prior to trial); see generally White v. State, 253 Ga. 106, 109-110(3), 317 S.E.2d 196 (1984).

2. The court did not err in denying defendant's requested charge on impeachment. The reason is that defendant failed to proffer authenticated copies of the records of the two State's witnesses targeted. Drake v. State, 245 Ga. 798, 803(7), 267 S.E.2d 237 (1980).

3. Using the word "or," the court charged the jury two of the alternative methods of committing "aggravated assault" as found in OCGA § 16-5-21(a)(1) and (2). The indictment charged only that aggravated assault was committed because there was an assault "with intent to rob." It did not encompass assault "[w]ith any object, device, or instrument which when used offensively against a person is likely to or actually does result in bodily injury." Harwell contends this additional charge requires reversal. But the jury could not have been misled so that it convicted Harwell of the unindicted subsection (2) instead of the indicted subsection (1).

(a) The foreman wrote on the back of the indictment "guilty" of "Count # 2," and in Count 2 the indictment charged only subsection (2). That document is what the jury had out with it to study and decide upon. In writing on the back of the very indictment charging aggravated assault with an intent to rob, the jury was hardly confused that it was convicting him of assault with an offensive weapon likely to result in serious physical injury. Green v. State, 221 Ga.App. 694, 695(2), 472 S.E.2d 457 (1996), upheld a conviction of aggravated assault (even though the entire statute had been charged and even though the indictment only mentioned striking the victim with a pistol) because the foreman, in signing the indictment, wrote they found the defendant guilty as charged. Although we do not have the "as charged" language, the logical conclusion that the jury which signs the indictment was not misled still applies.

(b) Three other cases have held the jury was not confused or misled by an overbroad instruction where the judge also read the indictment to the jury verbatim, as is the case here. See Thomas v. State, 268 Ga. 135, 141(17), 485 S.E.2d 783 (1997) (upheld conviction where indictment charged assault with handgun but court also charged assault with intent to rob or rape; no jury confusion because "the trial court read the indictment verbatim in advising the jury of the offense of assault with a deadly weapon"); Chandler v. State, 213 Ga.App. 46, 47(2), 443 S.E.2d 679 (1994) (similar aggravated assault indictment and jury charge; conviction upheld because "[w]hile any reference to attempted rape or robbery certainly was extraneous, 'we find it highly unlikely that the jury was misled by (this portion of) the charge, since the court also read the indictment to the jury verbatim in advising them of the offense of (assault with a deadly weapon) charged against appellant' "); Moore v. State, 207 Ga.App. 892, 894-895(2), 429 S.E.2d 335 (1993) (aggravated assault with deadly weapon charged, and jury also charged on assault with intent to murder, rape, or rob; conviction upheld because "the jury was read the language of the indictment along with the statute and no fair risk of prejudice to defendant exists, it being highly probable the verdict was not the product of a misleading instruction").

(c) Another case excused an overbroad jury instruction because "the trial judge confined the elements of the crime to those charged in the indictment by instructing the jury that the State bore the burden of proving every material allegation in the indictment. This instruction was sufficient to dispel any possible juror confusion about the necessity of convicting [the defendant] for the acts charged in the indictment." (Citations and punctuation omitted.) McClain v. State, 220 Ga.App. 474, 475(2), 469 S.E.2d 756 (1996). Here the judge gave a similar limiting instruction.

(d) The jury had no questions indicating it was confused by the instruction as it related to the indictment, or confused because it detected that the instruction was broader than the indictment.

(e) The jury did find defendant guilty of armed robbery (Count 1), which required it to find that defendant took the money and checks "with intent to steal same." Thus it undeniably found the element described in OCGA § 16-5-21(a)(1), and it would not matter legally if the jury found in addition that the assault with the stun gun was "with ... [an] object, device, or instrument which, when used offensively against a person, is likely to or actually does result in serious bodily injury." OCGA § 16-5-21(a)(2). See Green, supra, 221 Ga.App. at 696(2), 472 S.E.2d 457 (upholding conviction of aggravated assault by striking with a pistol: "we do not believe that [defendant's] due process rights were violated simply because the jury may have also believed that the assault was committed with the intent to rob").

(f) But no reasons arose for it to have done so in the first place. There was no jury argument by the State that this latter charge is what it proved or that it was seeking a conviction of this subsection; there was no evidence that the stun gun was the type of weapon described in the subsection; the victim testified only that "They picked up the bag and stunned me or shocked me [with the stun gun] down the leg maybe four times on their way out." He was not hurt seriously, as is evident from the fact that "the second they left" he called 911 and when the detectives arrived he talked to them for about an hour. There is no mention of his going to the hospital or seeking any medical attention.

We must give some credit to the jury for common sense, for knowing that a stun gun used in the manner it was used in this case is not an "object, device, or instrument which, when used offensively against a person, is likely to or actually does result in serious bodily injury." It was not used to beat him over the head, for example.

(g) Perguson v. State, 221 Ga.App. 212, 213(1), 470 S.E.2d 909 (1996), says the error in charging the jury the unindicted alternative is reversible only "if a reasonable possibility exists that the jury may convict the defendant of committing the crime in a way not alleged in the indictment." There is not a reasonable possibility of that in this case.

The United States Supreme Court articulates the test as one of "reasonable likelihood," as recently recognized and applied by the Supreme Court of Georgia in Bridges v. State, 268 Ga. 700, 703, 492 S.E.2d 877 (1997). The latter instructs: "[E]rroneous jury instructions are not judged in isolation, but rather are considered in the context of the entire jury charge and the trial record as a whole to determine ' "whether there is a reasonable likelihood that the jury has applied the challenged instruction in a way that violates the Constitution." ' [Cit.] Second an...