Hilburn v. State, 65920
| Decision Date | 20 April 1983 |
| Docket Number | No. 65920,65920 |
| Citation | 166 Ga.App. 357,304 S.E.2d 480 |
| Court | Georgia Court of Appeals |
| Parties | HILBURN v. The STATE. |
Frank B. Perry, R. Stephen Tingle, Rossville, for appellant.
David L. Lomenick, Jr., Dist. Atty., Ralph Lee Van Pelt, Jr., Herbert E. Franklin, Jr., Asst. Dist. Attys., for appellee.
Defendant was indicted for murder but was convicted of voluntary manslaughter. After his motion for new trial was filed, amended, heard and denied, he appeals. Held:
1. Defendant's first enumeration of error is that the trial court erred in refusing to admit into evidence testimony of defendant's firearms expert witness concerning the defendant's sole defense of accident and testimony to impeach the state's firearms expert. Prior to placing this expert witness on the stand defense counsel attempted to obtain an agreement from the state to allow him to examine the expert with reference to a shotgun, a .45 caliber automatic pistol and a rifle, all of which have similar safety mechanisms, the same to be used for demonstrative purposes only and not to be introduced into evidence due to the fact that he did not desire that the weapons be taken as exhibits in the case as these weapons belonged to the defense's expert witness and they might well be tied up for a considerable length of time depending upon the litigation. Defense counsel contended that the firearm in question (a rifle) involved in the killing of the victim was discharged by accident and was unsafe and the above weapons would be germane and would be highly persuasive that the firearm in question was dangerous. Counsel for the state objected to the weapons being used and not becoming a part of the evidence to demonstrate a safety feature. The trial court held that the fact that the rifle allegedly used in the shooting was in evidence and the state's expert witness had been subjected to a thorough and sifting cross-examination as to same the additional weapons would be irrelevant and immaterial to the issues in question, that is, the accidental firing of the weapon. Whereupon, the defense counsel placed the defense expert witness on the stand and thoroughly examined him after qualifying him as an expert with reference to the weapon in question. The defendant contends that under OCGA § 24-1-2 (formerly Code § 38-101) and such cases as Newman v. Roberts, 147 Ga.App. 157, 248 S.E.2d 217, and Miller v. State, 150 Ga.App. 597, 258 S.E.2d 279, that even where the relevancy of the evidence is doubtful it should be admitted and its weight left to the triers of fact for determination. Nevertheless, we find no abuse of discretion on the part of the trial court here with reference to such demonstration or experiments. See Reese v. State, 139 Ga.App. 630, 631(1), 229 S.E.2d 111; Hudson v. State, 46 Ga.App. 668(1), 168 S.E. 912. The trial court allowed both parties to fully demonstrate by the use of their expert witnesses the rifle used in the shooting. There is no merit in this complaint.
2. During the opening statement the state's counsel made certain remarks with reference to the fact that he had a number of witnesses that can testify as to the same things that other witnesses can testify to and because of the lengthy interrogation they would take the state would only call certain witnesses that counsel considered as necessary to prove the case. Whereupon, defense counsel moved for a mistrial in that the state's counsel had told the jury that many of the witnesses would testify to the same thing. The motion was denied, but defense counsel requested that the jury be instructed to disregard the comment. Whereupon, the trial court under OCGA § 17-8-75 (criminal procedure) (formerly Code § 81-1009) instructed the jury to disregard the statement relative to the fact that some of the witnesses would say the same thing as the witnesses that are called, and the court rebuked state's counsel for making that statement. In any event, if the remark by the state's counsel was improper, the error was cured by the trial court's instruction. Berryhill v. State, 249 Ga. 442, 451-452(14), 291 S.E.2d 685; Thomas v. State, 248 Ga. 247, 252(9), 282 S.E.2d 316. This enumeration of error is not meritorious.
3. Defendant next contends that he was improperly served with all inculpatory in-custody statements made by the defendant upon his request for same under OCGA § 17-7-210 (formerly Code Ann. § 27-1302 (Ga.L.1980, p. 1388)). The...
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Quick v. State
...circumstances, even if the State's questions were improper, the error was cured by the trial court's instructions. Hilburn v. State, 166 Ga.App. 357, 358(2), 304 S.E.2d 480. 2. The second enumeration of error contends the jury improperly considered certain extra-record evidence. In support ......
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Whitten v. State
...why we find no reversible error. First, this information was elicited by the defense counsel, not by the state. See Hilburn v. State, 166 Ga.App. 357(3), 304 S.E.2d 480. It is arguable that the answer was not responsive, but the answer did relate to the issue being discussed. Secondly, the ......
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Spencer v. State
...with the written summary in any material respect, we hold that any error in admitting it was harmless. Accord Hilburn v. State, 166 Ga.App. 357, 358, 304 S.E.2d 480 (1983). 4. Appellant further claims that the trial court erred in instructing the jury on the law of conspiracy because conspi......
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