Heard v. State

• Decision Date: 15 February 1984
• Docket Number: No. 66801,66801
• Citation: 170 Ga.App. 130,316 S.E.2d 504
• Parties: HEARD v. The STATE.
• Court: Georgia Court of Appeals

Page 504

316 S.E.2d 504

170 Ga.App. 130

HEARD v. The STATE.

No. 66801.

Court of Appeals of Georgia.

Feb. 15, 1984.

Rehearing Denied March 7, 1984.

Milton F. Gardner, Jr., J. David McRee, Milledgeville, for appellant.

Joseph H. Briley, Dist. Atty., Fredric D. Bright, Asst. Dist. Atty., for appellee.

McMURRAY, Chief Judge.

Defendant was convicted of kidnapping with bodily injury, armed robbery, aggravated assault and theft by taking. He was sentenced to life for the kidnapping with bodily injury; to a total of 20 years (concurrent with one another and consecutive to the kidnapping sentence) for the armed robbery and aggravated assault; and to 10 years on probation (consecutive to all the sentences) for the theft by taking. Defendant appeals following the denial of his motion for new trial, as amended. Held:

1. Defendant argues that the trial court erred by denying his motion for continuance contending that he did not have sufficient time to prepare for trial having not been indicted until three days before his trial.

The decision to grant or deny a motion for a continuance is within the sound discretion of the trial court and will not be cause for reversal absent abuse of that discretion. Hawkins v. State, 167 Ga.App. 143, 145(1), 305 S.E.2d 797; Fleming v. State, 236 Ga. 434, 437, 224 S.E.2d 15. Here, the evidence reflects that defendant was represented by two court appointed counsel for over a month before his case went to trial. The assistant district attorney made arrangements for both defense counsel to interview the witnesses they desired. Further, the original list of witnesses (containing 28 names) was served on both defense counsel 18 days prior to the trial. We find no abuse of discretion of the trial court based on the ground that counsel had not had sufficient time to prepare for trial. See Hawkins v. State, 167 Ga.App. 143, supra at 145, 305 S.E.2d 797; Burnett v. State, 240 Ga. 681, 684(1), 242 S.E.2d 79.

2. Defendant contends the trial court erred by denying his motion in limine and motion for mistrial based on the admission of evidence by the state concerning the beer truck hijacker (victim's assailant) allegedly shooting a gun during the high speed chase through Jones County.

It is defendant's contention that by allowing the state to introduce evidence of this alleged gunshot incident, his character was being improperly placed into evidence and in essence, he was being forced to defend himself against charges for which he was not on trial. This contention is without merit. Evidence of a separate crime was admissible if this separate crime is committed as a part of the same transaction as that for which the accused is being tried and forms a part of the res gestae. Burger v. State, 242 Ga. 28, 32-33(8), 247 S.E.2d 834.

3. We next consider defendant's contention the trial court erred by denying his motion for change of venue based upon prejudicial pretrial publicity. A change of venue motion addresses itself to the sound discretion of the trial judge, and that discretion will not be disturbed on appeal unless abused. See Potts v. State, 241 Ga. 67, 75-77(8), 243 S.E.2d 510. "The test regarding prejudicial pre-trial publicity is whether the jurors summoned to try the case have formed fixed opinions as to the guilt or innocence of the defendant from their exposure to the pre-trial publicity. [Cits.]" Potts v. State, 241 Ga. 67, supra, at p. 76, 243 S.E.2d 510.

Here, the defendant has presented no evidence of fixed opinions on the part of the traverse jurors as to his guilt or innocence. Further, a reading of the record of the voir dire examination does not show that any of the jurors summoned to try the case had been prejudiced by the alleged inflammatory newspaper articles. Nor were they prejudiced by the radio or television broadcasts. Thus, we cannot conclude that the trial court abused its discretion in overruling defendant's motion for change of venue. See Mooney v. State, 243 Ga. 373, 385, 254 S.E.2d 337; Potts v. State, 241 Ga. 67, 75(8), 243 S.E.2d 510, supra; Graves v. State, 167 Ga.App. 246, 247(2), 305 S.E.2d 913.

4. Defendant next contends the trial court erred by denying his motions regarding the merger of certain offenses. Defendant was indicted for the offenses of kidnapping with bodily injury, armed robbery, aggravated assault and theft by taking. It is defendant's contention that aggravated assault is a lesser included offense of kidnapping with bodily injury and that theft by taking is a lesser included offense of armed robbery. As such, defendant argues that it was improper for him to be convicted and sentenced on all four of these counts since the lesser included offenses should have been merged with the greater offenses.

Defendant committed armed robbery when he took the victim's checks and currency at gunpoint. He subsequently committed theft by taking when he drove off in the victim's beer truck. "The evidence establishing the commission of the one crime is not the same as the evidence which established commission of the other crime." Holt v. State, 239 Ga. 606, 607, 238 S.E.2d 399. As such, in the instant case, theft by taking is not a lesser included offense as a matter of fact. See Holt v. State, 239 Ga. 606, 607, 238 S.E.2d 399, supra; Doucet v. State, 153 Ga.App. 775, 776-777(2), 266 S.E.2d 554; Parrish v. State, 160 Ga.App. 601, 603-604(2), 287 S.E.2d 603.

"The same rationale does not apply to the conviction for kidnapping with bodily injury and the conviction for aggravated assault of [the victim]. This is true because the elements of the crime of aggravated assault must have been proved in order to sustain a conviction for the crime of kidnapping with bodily injury. Therefore, the aggravated assault in this case is an included offense of the crime of kidnapping with bodily injury, and the conviction for aggravated assault is reversed." Brown v. State, 247 Ga. 298, 302-303(9), 275 S.E.2d 52. See Williams v. State, 238 Ga. 244, 246(7), 232 S.E.2d 238. Accordingly, the trial court is directed to vacate the conviction and sentence for aggravated assault.

5. We next consider whether the trial court erred in failing to make certain "Brady material" available to the defense following its in camera inspection of the state's file, and that the state suppressed and failed to provide the defense with exculpatory evidence.

"The statements of witnesses in the prosecutor's files (nothing more appearing) may not be reached by Code Ann. § 38-801(g) (Ga.L.1966, p. 502; 1968, pp. 434, 435; 1968, p. 1200) [now OCGA § 24-10-26], and to prevail on the basis of Brady v. Maryland, 373 U.S. 83, 87 [83 S.Ct. 1194, 1196, 10 L.Ed.2d 215] (1963), the appellant [here, the defendant] must indicate the materiality and the favorable nature of the evidence sought. [Cit.]" Hamby v. State, 243 Ga. 339, 340(2), 253 S.E.2d 759.

Defendant claims, in his brief, that had the victim's out of court statement relating to the height and weight of his assailant been available to defense counsel earlier, it might have resulted in the granting of defendant's motion to suppress the victim's in-court identification. We do not agree. In the victim's out-of-court statement (taken during a field interview), he described his assailant as being about 6'1"' or 6'2"' and weighing about 200-220 pounds. At trial, he stated that he described his assailant to law enforcement officers as being about 6'2"' or 6'3"' and weighing approximately 230 pounds. This testimony was essentially consistent with the victim's out of court statement and does not involve a "corruption of the truth-seeking function of the trial process" as found by the court in Williams v. State, 250 Ga. 463, 465, 298 S.E.2d 492, which was cited by the defendant. Further, prejudice is not shown here, where the defendant was furnished a list of witnesses prior to trial and had an opportunity to cross-examine these witnesses, and where the trial court determined from an in camera inspection that there was nothing in the prosecution's files that would be favorable to defendant that he had not seen. See Burger v. State, 242 Ga. 28, 32(7), 247 S.E.2d 834.

6. Defendant also contends the trial court erred by denying his motion for a mistrial based upon the district attorney's failure to produce or account for the personal belongings of defendant.

Deputy Battle of the Jones County Sheriff's Department testified that he returned the items which defendant was asking to be produced back to him. Further, the state accounted for all the personal belongings removed from the defendant through the testimony of Deputy Battle, Detective Black and Detective Gibson. The district attorneys cannot produce items which they do not possess. Therefore, we find no error.

7. We find no merit in defendant's contention that the trial court erred in failing to quash the indictment against him based upon the alleged illegal detention of defendant by police. The Supreme Court of Georgia in State v. Houston, 234 Ga. 721, 724, 218 S.E.2d 13, has stated "it is now well settled that illegal detention (without a valid probable cause hearing) does not preclude indictment by the grand jury. It is equally well settled that an illegal arrest or detention does not void a subsequent conviction, and that the failure to provide counsel at a probable cause hearing may not be raised after conviction by petitioners for writ of habeas corpus." We agree with this observation by the Supreme Court and as such, rule that the alleged illegal detention of the defendant does not provide sufficient legal grounds to quash the indictment by the grand jury. See also Gerstein v. Pugh, 420 U.S. 103, 95 S.Ct. 854, 43 L.Ed.2d 54; Frisbie v. Collins, 342 U.S. 519, 72 S.Ct. 509, 96 L.Ed. 541; Ker v. Illinois, 119 U.S. 436, 7 S.Ct. 225, 30 L.Ed. 421); Stynchcombe v. Hardy, 228 Ga. 130, 184 S.E.2d 356.

8. Defendant argues that the trial court erred in denying his motion to suppress the victim's...