Moore v. State
| Decision Date | 13 December 1994 |
| Docket Number | No. A94A2722,A94A2722 |
| Citation | 451 S.E.2d 534,215 Ga.App. 626 |
| Parties | MOORE v. The STATE. |
| Court | Georgia Court of Appeals |
Michael R. McCarthy, Rocky Face, for appellant.
Jack O. Partain, III, Dist. Atty., Albert H. Tester, Asst. Dist. Atty., Dalton, for appellee.
Gary Nathaniel Moore appeals his conviction of habitual felon and violation of the Georgia Controlled Substances Act by unlawfully selling cocaine. Held:
1. Appellant asserts the trial court erred by denying without a hearing appellant's pretrial motion to suppress identification testimony. This issue is controlled by Smith v. State, 195 Ga.App. 669(1), 394 S.E.2d 558; moreover, "it has repeatedly been held that the trial court is not required to entertain a pre-trial motion to suppress identification testimony." Martin v. State, 201 Ga.App. 643(1), 411 S.E.2d 788. Appellant's first enumeration is without merit.
2. Appellant contends the trial court erred in denying his motion for directed verdict based on "the motion to suppress identification testimony." As a general rule, "a motion for directed verdict in a criminal trial should only be granted where there is no conflict in the evidence and the evidence demands a verdict of acquittal as a matter of law." Taylor v. State, 252 Ga. 125(1), 312 S.E.2d 311. The trial court did not err in denying the motion for a pretrial suppression hearing. See Division 1 above. At the commencement of trial and in response to an inquiry by appellant's counsel, the trial court ruled that appellant could re-assert his motion to suppress identification testimony during the course of the trial. Thereafter, appellant elected not to object to the identification testimony of the police officers or otherwise to re-assert timely his motion to suppress such testimony. "No ruling by the trial court on the admissibility of the [officers'] identification testimony ever having been properly invoked, this enumeration presents nothing for review." Smith, supra. Also, all evidence is admitted as a matter of course unless a valid ground of objection is timely interposed. Scott v. State, 206 Ga.App. 23, 26(1), 424 S.E.2d 328. Appellant by his trial procedure and strategy aided in the admission of the identification testimony at issue. See generally Williams v. State, 205 Ga.App. 445, 446(2), 422 S.E.2d 309. For each of these reasons, appellant's second enumeration is without merit.
3. Trial of the case took only approximately three-and-one-half hours; the jury was not confronted with conflicting expert testimony as to scientific matters, but was primarily confronted with important questions necessitating commonsense resolution of witness credibility and allocation of weight to various evidence. After deliberating approximately one hour and forty-five minutes, the jury was returned to the courtroom and the jury foreman reported a 10 to 2 jury deliberation vote--whereupon the trial court gave the jury an Allen charge; appellant posed a timely objection to the charge. Approximately 45 minutes later the jury returned a guilty verdict. Appellant contends that the trial court erred in giving the Allen charge. While the trial court did not inquire whether the jury was making progress in its deliberation before giving the charge, it was ascertained that the jury had not yet reached a verdict and the trial court was informed that the jury was in disagreement by its vote of 10 to 2; further, the trial court was not informed as to which way the votes had been cast. Examination of the Allen charge on its four corners reveals that the trial court did not suggest a particular verdict or even require that a verdict be reached by this particular jury. Rather the jury was encouraged to return to the jury room for a reasonable time and to examine their differences in the spirit of fairness and candor in order to "try to arrive at a verdict." Additionally, the court expressly informed the jury that it was "not in any way bringing any pressure on any of [the jury members] to give up any conscientious opinion that [they] have." On balance we do not find this particular charge coercive. We recognize the press of time that a busy court docket can create; however, the right to a fair trial must remain the paramount concern at all times and in all cases. A trial court should not elect too quickly to give an Allen charge,...
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