Martin v. State

• Decision Date: 17 November 1987
• Docket Number: 74833,74896,Nos. 74831,74834,74895,74832,s. 74831
• Citation: 363 S.E.2d 765,185 Ga.App. 145
• Parties: MARTIN et al. v. The STATE (Six Cases).
• Court: Georgia Court of Appeals

Page 765

363 S.E.2d 765

185 Ga.App. 145

MARTIN et al. v. The STATE (Six Cases).

Nos. 74831, 74832, 74896, 74833, 74834, 74895.

Court of Appeals of Georgia.

Nov. 17, 1987.

Rehearing Denied Dec. 2, 1987.

Michael D. DeVane, C. Deen Strickland, Waycross, for appellants.

Douglas Gibson, Sol., for appellee.

SOGNIER, Judge.

Devoy Martin and Joseph Martin were convicted at a joint trial of selling alcoholic beverages on Sunday and selling alcoholic beverages without a license. Appellants have filed a total of six separate appeals, one for each defendant on each of the two accusations (case nos. 74831-74834), as well as separate appeals for each defendant from an order denying their motion to amend their motion for a new trial or in the alternative to allow an out-of-time appeal (case nos. 74895, 74896).

1. Case nos. 74895, 74896. Appellants were tried jointly in the State Court of Ware County on December 16, 18 and 19, 1985. Appellant Devoy Martin's two accusations were designated case nos. 85-1962 and 85-1963; appellant Joseph Martin's two accusations were designated case nos. 85-1964 and 85-1965. Both appellants were found guilty of the offenses charged on December 19, 1985, and filed a motion for new trial only as to case nos. 85-1963 and 85-1965 (sale of alcoholic beverages on Sunday) on January 3, 1986. Appellants thereafter obtained a different attorney who filed an amendment to appellants' motion for a new trial on August 12, 1986, which set forth several additional grounds for a new trial but still did not include case nos. 85-1962 and 85-1964 (selling alcoholic beverages without a license). Appellants' motion for a new trial was denied on January 19, 1987. On February 9, 1987, appellants filed a motion to amend their motion for a new trial or in the alternative to allow an out-of-time appeal; this motion was filed by yet another attorney. On February 13, 1987, appellants filed notices of appeal in our case nos. 74831-74834. On March 11, 1987, the motion to amend the motion for a new trial or grant an out-of-time appeal which had been filed on February 9, 1987, was denied on the ground that the court was without authority to allow amendment of the motion for new trial. Appellants filed a notice of appeal from that decision; those appeals are our case nos. 74895 and 74896.

In regard to denial of appellants' motion asking for an out-of-time appeal, that decision was a final judgment on the merits. Appellants then filed an application to appeal the trial court's decision denying their motion for an out-of-time appeal. (Discretionary appeal no. 1852). This court denied that application by order dated April 22, 1987, and such denial invokes the doctrine of res judicata on the issue of an out-of-time appeal. McLemore v. Stephenson, 181 Ga.App. 828, 829, 354 S.E.2d 17 (1987).

As to the portion of appellants' motion seeking to amend the motion for a new trial, the original motion for a new trial, as amended, had been denied and was no longer before the trial court. Hence, the motion to amend the motion for a new trial was in reality an extraordinary motion for new trial. Appeal from the denial of such a motion must be by application when separate from the original appeal, as is the case here. OCGA § 5-6-35(a)(7); Pitts v. State, 254 Ga. 298, 328 S.E.2d 732 (1985). There being no application to appeal the trial court's order in this case (except the portion of the motion seeking an out-of-time appeal to which the doctrine of res judicata applies), the appeals in these two cases are dismissed.

2. Case nos. 74832, 74834. On December 19, 1985, appellants were found guilty of, and sentenced for, the offenses charged in these two cases, namely, selling alcoholic beverages without a permit (license). They did not file a motion for new trial as to these offenses, and did not file a notice of appeal of these cases until February 13, 1987. Since the notice of appeal was not filed within thirty days of judgment as required by OCGA § 5-6-38, and no extension of time for filing the notice of appeal was obtained, this court is without jurisdiction to consider the appeals in these two cases. Westerfield v. State, 169 Ga.App. 510, 313 S.E.2d 768 (1984). Accordingly, these appeals are also dismissed.

3. Case nos. 74831, 74833. These two cases relate to appellants' conviction of the offense of selling alcoholic beverages on Sunday. Appellant Devoy Martin enumerates twenty-three errors and appellant Joseph Martin enumerates seventeen errors, many of which are the same. We note initially that appellant Devoy Martin's enumerations 5, 6, 8, 9, 10, 18 and 21, and appellant Joseph Martin's enumerations 5, 6, 7, 11, 14 and 15 all relate to issues not raised below, and this court will not consider issues raised for the first time on appeal. Tolbert v. State, 180 Ga.App. 703, 704(3), 350 S.E.2d 51 (1986).

a. Both appellants contend they were denied effective assistance of counsel, and in a separate enumeration allege the trial court erred by not allowing appellants and their witnesses to testify on this issue at the hearing on their motion for a new trial. We agree.

To properly determine whether appellants were denied effective assistance of counsel when the issue has been raised in a motion for new trial, appellants' trial counsel, who was a different attorney than their appellate counsel, should be allowed to testify as to his conduct of the trial, and appellants should also be allowed to testify and/or present evidence on this issue. Thus, we remand the case to the trial court for a hearing and appropriate findings concerning only the issue of ineffective assistance of counsel. See Smith v. State, 255 Ga. 654, 656(3), 341 S.E.2d 5 (1986). If any further review of this issue is sought, the appropriate appellate procedure must be followed for such review b. Appellants next urge error in the trial court's failure to take curative action or declare a mistrial after a State witness testified that after appellant Devoy Martin had been searched and read his rights by another agent, Devoy Martin did not at that time make a statement that the witness heard. Appellants made no objection to this testimony and did not move for a mistrial or request other curative action. "[I]n the absence of a specific motion either for a mistrial, or that the jury be instructed to disregard the [testimony], it was not error to fail to grant a mistrial or to instruct the jury." McCoy v. Scarborough, 73 Ga.App. 519, 520(6), 37 S.E.2d 221 (1946). Mullinnix v. State, 179 Ga.App. 104, 105(2), 345 S.E.2d 650 (1986).

c. Appellants objected to several references by the court to State Exhibits 1 and 2 as whiskey and beer, or alcohol. They argue that these were improper comments on the evidence, since the State had the burden of establishing that the substance in the bottles and cans was, in fact, alcohol and beer. The court recognized this burden, and admitted the exhibits subject to the State establishing that the contents of the bottles and cans were, in fact, whiskey and beer. In appellants' opening statement they acknowledged that the substance seized from appellants' residence was alcohol. Appellant Devoy Martin testified that the substances seized were alcohol and beer, and a revenue agent testified that in his expert opinion the exhibits contained bonded whiskey and beer. Under such circumstances any allegedly improper reference by the trial court to the exhibits as alcohol and beer would be harmless. Further, with the exception of appellants' objection to the introduction of the exhibits on the ground that the State had not established what the bottles and cans contained, no objection was made to the court's comments, and this court will not consider questions raised for the first time on appeal. Tolbert, supra. The same rule applies to other comments to which appellants now object, and thus, we will not consider such issues.

d. Appellants assert error by the trial court in denying appellants' motion to require the State to produce the confidential informant in court. At a hearing on this motion it was established that the informant's name, Ron Roeschki, was on the accusation; that the initials "WSO" next to his name indicated the Ware Sheriff's Office; that appellants apparently knew the informant; and that appellants made no effort to contact the informant, obtain his address, or subpoena him as a witness.

There is no requirement that the State provide addresses of its witnesses, Lewis v. State, 159 Ga.App. 135, 282 S.E.2d 750 (1981), nor is there any requirement that those persons whose names appear on the accusation as witnesses must testify at the trial of the accused. Glover v. State, 149 Ga.App. 369, 371(3), 254 S.E.2d 492 (1979). Appellants did not subpoena the witness, and the initiative to subpoena a witness and how to enforce the witness' attendance rests on counsel, not on the court. Id. Hence, the trial court did not err in denying appellants' motion.

e. Appellants contend the court erred by allowing a State witness to testify, over objection, that appellant was not licensed to sell alcoholic beverages. In this regard, Detective Terry Wright testified that he checked the records of Ware County, Georgia to determine if appellant Devoy Martin had a license to sell beer or liquor, and he did not have such a license. Appellants objected to such testimony on the ground that it was hearsay, and the best evidence of whether Devoy Martin had a license would be testimony of someone in the licensing office. Appellants' argument that such testimony was not the best evidence has been decided adversely to their contention. Cary v. State, 55 Ga.App. 167, 168(3), 189 S.E. 625 (1937). See also Logan v. American Bankers, etc., Co., 168 Ga.App. 647, 649(1), 310 S.E.2d 263 (1983). In regard to appellants' objection on the grounds of hearsay, hearsay evidence is that which does not derive its value solely from the credit of the witness, but...