Holmes v. State, A93A0895
| Decision Date | 24 August 1993 |
| Docket Number | No. A93A0895,A93A0895 |
| Court | Georgia Court of Appeals |
| Parties | HOLMES v. The STATE. |
Hallman & Stewart, D. Jay Stewart, Claxton, for appellant.
Dupont K. Cheney, Dist. Atty., J. Thomas Durden, Jr., Asst. Dist. Atty., for appellee.
On May 15, 1992, a one-count indictment, alleging armed robbery, was returned against Aurice Brown, Ricky Denson, Hubert Wiggins, Jr., and appellant, Dexter Holmes. Brown had not been arrested at the time of the trial. Co-defendants Denson, Wiggins and Holmes were tried together. The trial court granted a directed verdict of acquittal as to defendant Wiggins and a mistrial was declared as to defendant Denson. The jury found Holmes guilty of armed robbery.
1. On appeal, Holmes asserts that the trial court erred in failing to give curative instructions with regard to the court's statements concerning its decision to grant a directed verdict of acquittal as to defendant Wiggins. The trial court stated: Holmes argues that by this statement, the trial court implied that there was sufficient evidence with regard to the remaining defendants, thereby commenting on the evidence in violation of OCGA § 17-8-57. While the better practice would have been for the trial judge not to have indicated the reason why defendant Wiggins' case was no longer before the jury, we have previously determined that "remarks of a judge assigning a reason for his ruling are neither an expression of opinion nor a comment on the evidence." (Citation and punctuation omitted.) Faulkner v. State, 186 Ga.App. 879, 880, 368 S.E.2d 820 (1988). Also, the trial court instructed the jury that it should not consider any of the court's rulings as an expression of opinion on the weight of evidence presented in the case.
2. In his second enumeration of error, Holmes asserts that the trial court erred in failing to instruct the jury as to the definition of a felony. In his request to charge, Holmes requested that the court instruct the jury that "a felony means a crime punishable by death, or by imprisonment for life, or by imprisonment for more than twelve months." Holmes contends that the charge was justified as the word "felony" appeared on the indictment which the jury takes to the jury room during their deliberation. He argues that the jury should be instructed as to the definition of any legal term that is used in the indictment.
Generally, the trial court, rather than the jury, is responsible for the determination of...
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