Hubbard v. State

Decision Date17 June 1983
Docket NumberNo. 66016,66016
Citation167 Ga.App. 32,305 S.E.2d 849
PartiesHUBBARD v. The STATE.
CourtGeorgia Court of Appeals

Michael B. Perry, St. Marys, for appellant.

Glenn Thomas, Jr., Dist. Atty., James A. Chamberlin, Jr., Asst. Dist. Atty., for appellee.

DEEN, Presiding Judge.

During the early morning hours of April 1, 1981, St. Marys police officer Thomas Murray, on routine patrol duty, drove past the cyclone-fenced storage compound of the Camden Telephone and Telegraph Co. and observed appellant Hubbard placing in the trunk of his automobile a quantity of wire cable of a type used for installation of telephone lines. Officer Murray turned on his spotlight, identified himself as a police officer, and ordered appellant to stop. Appellant leaped into his car and drove away, and there ensued a high-speed chase which ended with appellant's driving his car into a ditch. Murray, assisted by other law enforcement personnel whom he had summoned by radio, subdued appellant, who was attempting to remove the cable from his trunk. Appellant, together with the cable, was transported to the Sheriff's Department, where he was charged with theft by taking. OCGA § 16-8-2 (Code Ann. § 26-1802).

Law enforcement personnel meanwhile proceeded to the scene where appellant had first been observed, examined and photographed the site, and took custody of several short rolls and lengths of cable found lying in the ditch between the chain-link fence and the place where appellant's car had been parked. Investigative officers noted in the dew-soaked grass of the storage compound at least one set of footprints and a set of tracks corresponding to the wheel configuration of a small trailer found standing near the fence. Caught on the barbed wire atop the fence were fragments of matted grass and of a black plastic tape-like material like that which bound the cable in the appellant's trunk, as well as some of the cable found in the ditch.

At trial the police officers who had participated in the chase, arrest, and site investigation testified to facts essentially as stated above, and the owner of Camden Telephone and Telegraph testified that the quantities of cable impounded by the officers were of the same kind as that ordinarily used in telephone installations, including those of his own firm; that except for an isolated operation by another company in a remote section of the county, his was the only telephone company in the vicinity; and that end-lengths of spools of cable were regularly bound with tape of the type found on the fence and on the cable taken into custody, and stored in the area from which the footprints and tracks led to the fence. The appellant testified in his own defense, denying the charge. Also appearing for the defense was the pastor of appellant's church, who testified that he had known appellant for nearly three months and that of his own personal knowledge he considered him to be of good character. The court ruled this evidence inadmissible because, contrary to the provisions of Georgia law, this character testimony was based on personal knowledge rather than on knowledge of appellant's reputation in the community where he lived or worked. Over appellant's objection, the court allowed the prosecution to have the opening and closing arguments, and appellant was found guilty and sentenced to three years' imprisonment.

In bringing this appeal appellant assigns as error the court's denial of his motions for a directed verdict of acquittal, for judgment notwithstanding the verdict, and for a new trial (# 1 and 2). He further enumerates the admission of physical evidence without requiring establishment of a chain of custody (# 3); the denial of the right to make the opening and closing arguments (# 4); the jury instruction that the pastor's testimony was inadmissible (# 5); the court's permitting the state to argue certain inferences (# 6); and the failure to provide appellant, an indigent, with a trial transcript that included the closing arguments (# 7). Held:

1. A directed verdict of acquittal is authorized only when the evidence is such as to demand acquittal as a matter of law. OCGA § 17-9-1 (Code Ann. § 27-1802). A motion for judgment notwithstanding the verdict (properly, a motion in arrest of judgment) is authorized only when there is a "defect not amendable which appears on the face of the record," OCGA § 17-9-61 (Code Ann. § 110-702). After verdict, there is a presumption in favor of the verdict, and the evidence is construed most strongly in favor of the pleader. Rumph v. State, 60 Ga.App. 689, 4 S.E.2d 673 (1939). In this case there was an abundance of evidence sufficient not only to suggest appellant's guilt of the offense charged, but also to authorize a finding of guilt under the "reasonable doubt" standard. The cases cited by appellant are distinguishable in that they involve very weak circumstantial evidence, unlike that in the instant case. Appellant's first enumeration is without merit.

2. The record discloses that the testimony of responsible law enforcement personnel adequately established the chain of custody of the impounded cable. Brooker v. State, 163 Ga.App. 91, 294 S.E.2d 203 (1982). This enumeration also has no merit.

3. The court's instruction to the jury regarding the inadmissibility of the character evidence proffered by the defense was a correct statement of the law and therefore must withstand appellant's challenge. OCGA § 24-2-2 (Code Ann. § 38-202); Smith v. State, 153 Ga.App. 519, 265 S.E.2d 852 (1980). This enumeration, too, is without merit.

4. The court did not err in permitting the prosecution in its closing argument to touch on the theory that there were other parties to the theft, despite no direct evidence of such having been introduced in the case in chief. There was circumstantial evidence that would support such an inference, however. It was brought out at trial that the sets of footprints in the grass were in such a configuration that they might arguably have been made by more than one person, and it was also brought out that dragging the...

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8 cases
  • Burger v. Kemp, 81-7419
    • United States
    • United States Courts of Appeals. United States Court of Appeals (11th Circuit)
    • 5 Febrero 1985
    ...of the state is closed." Where a defendant does present evidence, he loses his right to open and close. See, e.g., Hubbard v. State, 167 Ga.App. 32, 305 S.E.2d 849 (1983). In fairness to Judge Johnson, this Court recognizes that it incorrectly applied this distinction in its original Order.......
  • Stanley v. State, A90A0179
    • United States
    • United States Court of Appeals (Georgia)
    • 2 Mayo 1990
    ...by the trial court and, therefore, appellant's right to opening and closing argument had not been waived. Hubbard v. State, 167 Ga.App. 32, 34(7), 305 S.E.2d 849 (1983). "The question remains, however, whether the error was harmless. The right to make the final argument to the jury is an im......
  • Wilson v. State, 72959
    • United States
    • United States Court of Appeals (Georgia)
    • 5 Enero 1987
    ...reasonably suggested by the evidence." Durden v. State, 250 Ga. 325, 329-330(6), 297 S.E.2d 237 (1982). See also Hubbard v. State, 167 Ga.App. 32, 34(4), 305 S.E.2d 849 (1983). "It is permissible for the district attorney in his argument to draw deductions from the evidence which may be eve......
  • Hubbard v. State
    • United States
    • United States Court of Appeals (Georgia)
    • 30 Octubre 1985
    ...the denial of his motion for new trial, he appealed to this court and obtained a reversal of his conviction. Hubbard v. State, 167 Ga.App. 32, 305 S.E.2d 849 (1983). 1 Hubbard had not filed a demand for trial under OCGA § 17-7-170 after the return of the indictment against him (the only ind......
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