McGuire v. State, 31710
| Decision Date | 05 January 1977 |
| Docket Number | No. 31710,31710 |
| Parties | Edward Lee McGUIRE v. The STATE. |
| Court | Georgia Supreme Court |
Thomas Williams, Lawrenceville, for appellant.
Bryant Huff, Dist. Atty., Richard T. Winegarden, Lawrenceville, Arthur K. Bolton, Atty. Gen., Susan V. Boleyn, Staff Asst. Atty. Gen., Atlanta, for appellee.
Appellant, Edward Lee McGuire, was convicted of armed robbery in the Superior Court of Gwinnett County. He was sentenced to five years, to be served in the penitentiary, and seven years to be served on probation. Appellant's motion for a new trial was denied in the trial court and he appeals. We affirm.
The state introduced evidence to prove that a convenience store in Buford, Georgia, was robbed on February 12, 1976. Robert Lee Venable, who was working as the clerk at the store at the time of the robbery, testified that appellant entered the store, pulled a pistol, and took $148 in cash and a carton of Winston cigarettes. Mr. Venable testified that appellant had a light colored stocking pulled over his face which did not conceal his identity. He testified that he had grown up with appellant and recognized appellant immediately upon his entering the store. He also testified that he recognized appellant's voice. Other circumstantial evidence tending to show that appellant was the perpetrator of the robbery was introduced at the trial. The evidence was sufficient to support appellant's conviction.
In one enumeration of error, appellant contends that the trial court erred in overruling his motion to produce exculpatory information of specific statements taken from witnesses by the state during the investigation of the case. Appellant filed a motion in the nature of an omnibus Brady motion but did not demand an in camera inspection of the file by the trial court. The trial court conducted a hearing on appellant's motion at which the assistant district attorney stated in his place that an inspection by him of the state's files disclosed no exculpatory material. The trial court denied appellant's motion to produce. Appellant has not shown that the trial court's denial of his motion prejudiced appellant's defense. This enumeration of error is controlled by Hicks v. State, 232 Ga. 393, 207 S.E.2d 30 (1974) and is without merit.
Appellant also contends that the trial court erred in admitting the testimony of Detective Larry Cox, one of the arresting officers, about a conversation between Detective Cox and Mr. Tory Tuck. Detective Cox testified that in an interview, Mr. Troy Tuck stated that he had been riding around with appellant the night after the robbery. He also told the officer that appellant was probably then at the house of Mr. Troy Tuck's brother, Charles Tuck. Mr. Tuck also stated that appellant was probably the perpetrator of the robbery, since he had been spending money on beer and gas for everybody and was unemployed. Appellant's attorney objected to the admission of this testimony on the ground that it was hearsay. Mr. Tuck had previously testified at trial that he had not seen appellant after the night of the robbery. Detective Cox' testimony, relating pre-trial statements made to him by Troy Tuck, was hearsay. However, those statements were inconsistent with Mr. Tuck's earlier testimony at the trial and were admitted under the prior inconsistent statements exception to the hearsay rule. Since the trial court charged the jury that the testimony of Officer Cox was being introduced solely for impeachment purposes, we find no error. See Agnor's Georgia Evidence, § 5.5 (1976).
In two enumerations of error, appellant contends that the trial court erred in not declaring a mistrial or instructing the jury to disregard the prosecution's question by the district attorney about appellant's prior arrests. Appellant had testified on direct examination that he had no prior criminal convictions. On cross examination, the district attorney asked appellant how many times he had been arrested. At that point the jury was removed from the courtroom. The trial judge ruled that the answer to that question was inadmissible. Later during the charge to the jury the trial judge instructed them that,
The state argues that appellant put his character in issue by testifying that he had not been convicted of any crime and thereby opened the door to questions by the state concerning his prior arrests. Once a defendant in a criminal case puts his character in issue, as appellant did by testifying on direct that he had never been convicted of a crime, we see no reason why he cannot be subjected to cross-examination like any other character witness. See Agnor's Georgia Evidence, § 10-5 (1976). However, appellant was not asked on direct examination about any prior arrests. He testified that he had no prior convictions. This...
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Anderson v. State
...141 Ga.App. 304(2), 233 S.E.2d 264 (1977); Hall v. State, 143 Ga.App. 706, 708(4), 240 S.E.2d 125 (1977). Compare McGuire v. State, 238 Ga. 247, 232 S.E.2d 243 (1977); Bethea v. State, 149 Ga.App. 312, 313(2), 254 S.E.2d 468 (1979). While not condoning the asking of the question or the tria......
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