Johnson v. State

• Decision Date: 10 January 1991
• Docket Number: No. A90A1629,A90A1629
• Citation: 198 Ga.App. 316,401 S.E.2d 331
• Parties: JOHNSON v. The STATE.
• Court: Georgia Court of Appeals

Page 331

401 S.E.2d 331

198 Ga.App. 316

JOHNSON v. The STATE.

No. A90A1629.

Court of Appeals of Georgia.

Jan. 10, 1991.

Towery, Thompson, Gulliver & Bunch, Jeffrey D. Bunch, Linda B. Borsky, Atlanta, for appellant.

Thomas J. Charron, Dist. Atty., Debra H. Bernes, Nancy I. Jordan, Asst. Dist. Attys., for appellee.

CARLEY, Judge.

Appellant and a co-defendant were jointly tried before a jury on charges of armed robbery and robbery by intimidation. Although the co-defendant was acquitted of all charges, appellant was found guilty of robbery by intimidation and he appeals from the judgment of conviction and sentence entered by the trial court on the jury's verdict.

1. Construed to uphold the verdict, the evidence is not merely sufficient, it is overwhelming. A rational trior of fact could reasonably have found from the evidence adduced at trial proof of appellant's guilt of robbery by intimidation beyond a reasonable doubt. Williams v. State, 171 Ga.App. 624, 320 S.E.2d 546 (1984).

2. "Appellant asserts that his rights were violated because he did not have an attorney present at a pre-indictment lineup, even though he had requested one. ' "There is no constitutional right to counsel at a pre-indictment lineup. [Cits.]" ' [Cits.]" Fudge v. State, 164 Ga.App. 392, 393(3), 297 S.E.2d 329 (1982). Accordingly, a motion to exclude evidence of both the pre-trial and the in-court identification of appellant on this ground was correctly denied. Harris v. State, 168 Ga.App. 159, 160(1), 308 S.E.2d 406 (1983). The evidence of record also supports the trial court's determination that the procedures used during the lineup were neither unnecessarily suggestive nor conducive to irreparably mistaken identification. See Coleman v. State, 160 Ga.App. 158, 159(2), 286 S.E.2d 494 (1981).

3. To the extent that appellant requested a change in the courtroom seating arrangements so as to protect the confidentiality of his privileged communications with counsel, the trial court granted the request. To the extent that appellant urges on appeal that the trial court erred in failing, without request, to order more extensive changes in the courtroom seating arrangements, nothing is presented for decision. " ' "It is well settled that a reason urged by enumeration of error on appeal which is different from that urged below will not be considered for the first time on appeal. (Cits.)" (Cits.)' [Cits.]" Iglesias v. State, 191 Ga.App. 403, 404, 381 S.E.2d 604 (1989).

4. After invocation of the rule of sequestration, the trial court, in the exercise of its discretion, was authorized to permit the chief investigating officer to remain and assist in the orderly presentation of the State's case. " '[T]he rule as fixed by [OCGA § 24-9-61,] ... as to the sequestration of witnesses, confer[s] upon the party making such request an absolute right, subject only to the sound discretion of the trial judge in permitting one or more witnesses to remain in the courtroom to advise the opposite party in the presentation of his case.' " Spurlin v. State, 222 Ga. 179, 180-181(2), 149 S.E.2d 315 (1966). See also Norman v. State, 255 Ga. 313, 316(3), 338 S.E.2d 249 (1986). Likewise, it was not an abuse of the trial court's discretion to permit this witness to testify after having heard the testimony of other witnesses for the State. Law v. State, 165 Ga.App. 687, 691(4), 302 S.E.2d 570 (1983).

5. Although the admission into evidence of the audiotaped custodial statement of appellant's co-defendant is enumerated as error, appellant failed to object to the introduction of this evidence. " ' "We will not presume error from a silent record. The (appellant) has the burden of showing error affirmatively by the record and this burden is not discharged by recitations in the brief. (Cit.)" (Cit.)' [Cit.]" Smallwood v. State, 193 Ga.App. 807, 809(1), 389 S.E.2d 390 (1989). A review of the record reveals that appellant not only failed to object but that he insisted on a transcript of the taped statement being given to each juror. "Thus, error, if any [in the admission of this evidence], was self-induced and provides no basis for reversal. [Cit.]" Fitzgerald v. State, 193 Ga.App. 76, 78(7), 386 S.E.2d 914 (1989).

6. Although...