Hufstetler v. State, 67571

• Decision Date: 11 May 1984
• Docket Number: No. 67571,67571
• Citation: 171 Ga.App. 106,319 S.E.2d 869
• Parties: HUFSTETLER v. The STATE.
• Court: Georgia Court of Appeals

Page 869

319 S.E.2d 869

171 Ga.App. 106

HUFSTETLER v. The STATE.

No. 67571.

Court of Appeals of Georgia.

May 11, 1984.

Rehearing Denied May 29, 1984.

Certiorari Denied July 16, 1984.

W. Edward Meeks, Jr., Ocilla, for appellant.

Thomas H. Pittman, Dist. Atty., Robert C. Wilmot, Asst. Dist. Atty., for appellee.

POPE, Judge.

Max Hufstetler brings this appeal from his conviction of arson in the first degree. Held:

1. Appellant's first three enumerations of error are argued together. These enumerations cite as error certain rulings by the trial court denying appellant's motions relating to change of venue and sequestered individual voir dire of prospective jurors. Each of the cited rulings involved a matter lying within the sound discretion of the trial court. Our review of the record discloses no abuse of that discretion. See Stevens v. State, 247 Ga. 698(4), 278 S.E.2d 398 (1981), and cits. (change of venue); Stinson v. State, 244 Ga. 219(2), 259 S.E.2d 471 (1979), and cits. (sequestered voir dire). Therefore, appellant's first three enumerations of error are not meritorious.

2. Appellant's fourth enumeration assigns error on several grounds to the trial court's denial of his motion for a continuance. The thrust of this motion was defense counsel's contention that he did not have sufficient time before trial to review certain documents supplied to him by the State shortly before trial. The subject documents were some 60 letters written between appellant and one Ida Joan Harris, appellant's girl friend turned State's witness who received immunity from prosecution in return for testifying against appellant. Such a motion, like those in Division 1, addresses itself to the sound discretion of the trial court. Terry v. State, 160 Ga.App. 433(1), 287 S.E.2d 360 (1981). Our review of the record as it relates to the grounds asserted here by appellant discloses no abuse of that discretion. See Mauldin v. State, 167 Ga.App. 789(2), 307 S.E.2d 689 (1983); Mack v. State of Ga., 125 Ga.App. 639(2), 188 S.E.2d 828 (1972). We also note that since appellant had been provided with copies of the subject letters in advance of trial, the trial court's failure to conduct an in camera inspection thereof was not error. See Wiley v. State, 250 Ga. 343(5), 296 S.E.2d 714 (1982).

3. Appellant's next enumeration of error challenges the trial court's denial of a motion for mistrial based upon an answer given by a State's witness on cross-examination which was alleged to have been unresponsive and to have contained hearsay. A review of the record shows that the answer complained of was responsive to the question asked; however, in explaining the answer, the witness testified as to a statement made by Ms. Harris. By definition, this explanation was hearsay. See OCGA § 24-3-1. Nevertheless, the record also shows that Ms. Harris herself was called as a witness later in the trial and testified to the same effect as the previous hearsay statement attributed to her. Under this circumstance, any error in admitting the subject hearsay statement was harmless. See Gunter v. State, 243 Ga. 651(5), 256 S.E.2d 341 (1979); Garvin v. State, 144 Ga.App. 396(1), 240 S.E.2d 925 (1977). Compare Parker v. State, 162 Ga.App. 271(5), 290 S.E.2d 518 (1982), wherein the admission of "cumulative" hearsay testimony was held to have the impermissible effect of bolstering the victim's testimony; the subject testimony in the case at bar did not have such an effect.

4. Appellant's sixth and seventh enumerations cite as error (a) the trial court's denial of a motion for mistrial based upon a purportedly unresponsive answer by Ms. Harris to a question propounded to her on cross-examination which, it is asserted, improperly placed appellant's character in issue, and (b) the trial court's subsequent refusal to direct the jury to disregard this testimony. In response to appellant's objection, the trial court noted: "It's obvious what had happened was she had not finished her answer to your initial question, and you interposed a question and she was in the process of continuing her answer in this court's opinion to the initial question you asked.... [Y]ou [counsel for appellant] have a tendency [to] put your questions just like a machine gun and all witnesses do not answer in a like fashion.... [T]he court agrees that it [the subject answer] is not responsive to the question that you interposed while she was in the process of answering your first question ... and it's obvious to this court that she was in the process of continuing to answer that [i.e., the previous] question, you having interposed ... and she had not changed her train of thought as quickly as you had."

A trial court is invested with broad discretion in determining whether a witness has or has not answered a question propounded to him. See Kines v. State, 67 Ga.App. 314(3), 20 S.E.2d 89 (1942). See also Dunn v. State, 152 Ga.App. 790(1), 264 S.E.2d 249 (1979). We find no abuse of that discretion here in the trial court's finding that the subject answer was, indeed, responsive to a question elicited by defense counsel on cross-examination. Having so found, appellant will not be heard to object to this testimony, no matter how prejudicial it may have been. Thomas v. State, 213 Ga. 237(2), 98 S.E.2d 548 (1957); Potts v. State, 86 Ga.App. 779(3), 72 S.E.2d 553 (1952); see Perryman v. State, 244 Ga. 720(2), 261 S.E.2d 588 (1979); Jackson v. State, 154 Ga.App. 411(1), 268 S.E.2d 749 (1980). Accordingly, these enumerations of error are without merit.

5. During cross-examination of Ms. Harris, counsel for appellant asked, "Miss Harris, isn't it correct that you wrote Max [the appellant], you wrote and told him that you knew that he hadn't burned the Worth County Courthouse down?" This question was objected to by the State on the ground that the writing itself would be the highest and best evidence of the fact sought to be proved. Appellant's eighth enumeration cites as error the trial court's sustaining the objection.

The question propounded by appellant's counsel not only sought to establish whether Ms. Harris had in fact written such a letter to appellant but also sought to establish the contents thereof, i.e., what she had told him in such letter. "[W]here one attempts to testify concerning a letter's contents, if the letter is available the letter itself is the best evidence of what is in it, and oral testimony is therefore inadmissible." Mulkey v. State, 155 Ga.App. 304, 306, 270 S.E.2d 816 (1980). The record discloses no evidence that the subject letter was inaccessible. Therefore, the trial court properly sustained the State's objection. Cf. Mulkey v. State, supra. Compare Burke v. State, 153 Ga.App. 769(4), 266 S.E.2d 549 (1980).

6. As charged in the indictment, appellant was accused of first degree arson for burning the Worth County Courthouse, "the property of the Board of Commissioners of Worth County...." At trial, the court took judicial notice "that the Board of Commissioners of Worth County is the official governing authority of Worth County, and the Board of Commissioners of Worth County is the official titleholder of any and all property belonging to Worth County." Appellant's ninth enumeration of error challenges the propriety of this ruling.

Appellant argues that the trial court was without authority to take judicial notice of the ownership of the courthouse, an element of proof of the State's case. However, appellant has cited no authority for this proposition, and a careful reading of OCGA § 24-1-4, dealing with matters judicially recognized, discloses no such proscription. See generally, e.g., State v. Gwyther, 4 Or.App. 473(II), 479 P.2d 248(2), (1971); City of Bexley v. Ivey, 73 Ohio L.Abs. 152, 136 N.E.2d 622(2), (1953), affd. 73 Ohio L.Abs. 154, 136 N.E.2d 624 (1955). Compare Noojin v. State, 29 Ala.App. 178(6), 194 So. 414(6) (1940). Appellant also contends that the evidence presented at trial as to "ownership" of the courthouse showed the property to be owned by the citizens of Worth County, not the board of commissioners, and thus, the trial court's judicial notice was inconsistent with the evidence. By statute, property owned by the county is titled in the name of the county, and control thereover is exercised by the county's board of commissioners. See OCGA Ch. 36-9. Notwithstanding any inconsistency between the trial court's ruling and the statute, "[l]awful occupancy by one in charge constitutes ownership as contemplated by the statute [setting forth the crime of first degree arson, OCGA § 16-7-60], and the question of legal title is not involved. [Cits.]" Tukes v. State, 125 Ga.App. 831, 189 S.E.2d 135 (1972). See also State v. Hovers, 148 Ga.App. 431, 251 S.E.2d 397 (1978). Therefore, the "ownership" of the courthouse by the board of commissioners was an unnecessarily minute description of an unnecessary fact alleged in the indictment and need not have been proved. See generally Jackson v. State, 159 Ga. 133(1), 124 S.E. 874 (1924); Corson v. State, 144 Ga.App. 559(2), 241 S.E.2d 454 (1978); McHugh v. State, 136 Ga.App. 57, 220 S.E.2d 69 (1975). It follows that the trial court's remarks cannot be held as violative of OCGA § 17-8-55. See generally McFarland v. State, 109 Ga.App. 688(2), 137 S.E.2d 308 (1964).

7. Our review of the record discloses no violation by the State of the holding in Brady v. Maryland, 373 U.S. 83, 87, 83 S.Ct. 1194, 1196, 10 L.Ed.2d 215 (1963). See generally Hines v. State, 249 Ga. 257(1), 290 S.E.2d 911 (1982); Watts v. State, 141 Ga.App. 127(2), 232 S.E.2d 590, cert. den. sub nom. Dorris v. Georgia, 434 U.S. 925, 98 S.Ct. 405, 54 L.Ed.2d 283 (1977). Therefore, the trial court did not err in denying appellant's motion for mistrial on this ground, and his tenth enumeration of error is without merit.

8. The statement objected to as hearsay in appellant's eleventh enumeration of error, contained in a letter from Ms. Harris to appellant...