Megar v. State

• Decision Date: 04 January 1978
• Docket Number: No. 3,No. 54849,54849,3
• Citation: 144 Ga.App. 564,241 S.E.2d 447
• Parties: Robert P. MEGAR v. The STATE
• Court: Georgia Court of Appeals

Page 447

241 S.E.2d 447

144 Ga.App. 564

Robert P. MEGAR v. The STATE.

No. 54849.

Court of Appeals of Georgia, Division No. 3.

Jan. 4, 1978.

Rehearing Denied Jan. 23, 1978.

Moulton, Carriere, Cavan & Maloof, Bryan M. Cavan, Decatur, for appellant.

M. Randall Peek, Dist. Atty., George N. Guest, Asst. Dist. Atty., Decatur, for appellee.

BIRDSONG, Judge.

Appellant Megar was convicted of two counts of kidnapping, two counts of aggravated sodomy, and simple assault. From conviction and sentencing of 15 years, concurrent, Megar appeals. Held :

1. In enumerated errors no. 1, 8, 9, and 10, appellant asserts that the trial court erred in declining to suppress certain evidence seized in a search, pursuant to a valid warrant of appellant's residence and automobile. " 'On motion to suppress evidence, the trial judge sits as the trior of facts, hears the evidence, and his findings based upon conflicting evidence are analogous to the verdict of a jury and should not be disturbed by a reviewing court if there is any evidence to support it. (Cit.)' " Ivey v. State, 140 Ga.App. 713, 714, 231 S.E.2d 384, 385, State v. Swift, 232 Ga. 535, 536(1), 207 S.E.2d 459. The evidence satisfied this standard, and the foregoing enumerations of error are therefore without merit.

2. Appellant's contention that certain evidence was inflammatory to the jury is supported by neither argument nor citation of authority and is therefore deemed abandoned. Cochran v. Baxter, 142 Ga.App. 546, 236 S.E.2d 528.

3. Enumerated error no. 2 alleges that the trial court erred in denying appellant's pre-trial motion for a "Bill of Particulars." Appellant does not cite, and this court is unaware of, any applicable statute or law authorizing the grant of such a motion in a state prosecution. The appropriate method for questioning the sufficiency of form and substance of an indictment is by demurrer, and failure to demur operates as a waiver of the right to be tried by an indictment perfect in form and substance. Mealor v. State, 135 Ga.App. 682, 683(1), 218 S.E.2d 683, 685. Furthermore, "Every indictment or accusation shall be deemed sufficiently technical and correct which states the offense in the terms of the Code or so plainly that the nature of the offense charged may be easily understood by the jury. Code Ann. § 27-701." Mealor v. State, supra. The indictments satisfied the above standard. This enumeration is without merit.

4. In enumerated errors no. 3 and 12, appellant contends that the trial court erred in denying his request to allow a jury view of the automobile in which the alleged acts occurred. "This matter is discretionary, and the court did not abuse its discretion in denying the request. (Cits.)" Sutton v. State, 237 Ga. 418, 419, 228 S.E.2d 815, 817. See Lackey v. State, 217 Ga. 345(2), 122 S.E.2d 115. Appellant's contention that jury inspection of the automobile was demanded by the "best evidence" rule is also meritless in view of this court's holding that "(t)he rule has nothing to do with evidence generally, but is restricted to writings alone." Willingham v. State, 134 Ga.App. 603, 606, 215 S.E.2d 521, 525. See also Sumners v. State, 137 Ga.App. 493, 224 S.E.2d 126.

5. Appellant complains that the trial court erred in prohibiting cross examination of one of the alleged victims concerning certain mental health records, which, in camera inspection revealed, were in no way related to the credibility of the witness. "The scope of the cross-examination rests largely within the discretion of the trial judge, to control this right within reasonable bounds, and his discretion will not be controlled by a reviewing court unless it is abused." Moore v. State, 221 Ga. 636, 639, 146 S.E.2d 895, 899. As no abuse of discretion is shown, this enumeration of error is without merit.

6. Appellant urges as ground for mistrial the admission of testimony by an investigating officer that, after receiving the name of appellant, he, the officer, ". . . located a photograph of (appellant) and put it along with several other photographs." This testimony did not place appellant's character in issue, and this enumeration of error is without merit. Tanner v. State, 228 Ga. 829(6), 188 S.E.2d 512; Martin v. State, 225 Ga. 234(2), 167 S.E.2d 638.

7. In enumerated errors no. 6 and 7, appellant complains of the trial court's admission of a statement signed by appellant, on the ground that it was not freely and voluntarily given. A proper Jackson-Denno hearing was held, evidence was submitted as to the circumstances and contents of appellant's signed statement, and the trial court found that the appellant understood his rights and freely and voluntarily signed the statement. No error appears. Brazell v. State, 140 Ga.App. 340, 231 S.E.2d 105; Jett v. State, 136 Ga.App. 559, 222 S.E.2d 54.

8. Appellant argues that the trial court erred in admitting into evidence a knife obtained in a search of appellant's residence. The record reveals that one of the victims identified this knife at trial, stating that it "looked like" the knife allegedly wielded by appellant while the victims were in his automobile. The admission into evidence of the knife was not error. Sinkfield v. State, 231 Ga. 875, 204 S.E.2d 588.

9. Appellant contends that the trial court erred in refusing to direct a verdict for appellant, as to all charges, at the close of the state's case or at the close of all the evidence. "The direction of a verdict is proper only where there is no conflict in the evidence as to any material issue and the evidence introduced, with all reasonable deductions therefrom, shall demand a particular verdict." State Farm Mut. Auto Ins. Co. v. Snyder, 125 Ga.App. 352, 187 S.E.2d 878, 879; Merino v. State, 230 Ga. 604, 198 S.E.2d 311. "Furthermore, evidence in cases of directed verdict must be construed most favorably toward the party opposing the motion." Nationwide Mut. Ins. Co. v. Ware, 140 Ga.App. 660, 664, 231 S.E.2d 556, 559. The trial court did not err in denying appellant's motion for directed verdict either at the close of the state's case or at the close of all the evidence.

10. Appellant urges that the trial court erred in denying his motion to dismiss the charge of aggravated...