Moore v. State, 48284

• Decision Date: 12 September 1973
• Docket Number: No. 3,No. 48284,48284,3
• Parties: Terry W. MOORE v. The STATE
• Court: Georgia Court of Appeals

Page 320

200 S.E.2d 320

129 Ga.App. 612

Terry W. MOORE v. The STATE.

No. 48284.

Court of Appeals of Georgia, Division No. 3.

Sept. 12, 1973.

Frank K. Martin, Columbus, for appellant.

E. Mullins Whisnant, Dist. Atty., William J. Smith, Columbus, for appellee.

Syllabus Opinion by the Court

PANNELL, Judge.

1. Where several defendants are jointly indicted, the overruling of one of the defendant's motion for severance, made on the ground that because two of the defendants were not going to be sworn so as to be subject to cross examination but make only an unsworn statement, the movant would be denied his right to be confronted by his accuser and to cross examine the witnesses against him, was not error. The codefendants were not the defendant's accusers, neither were they witnesses against him. Nor was he denied the right of counsel, as further contended, because his counsel could not cross examine the codefendants who would make unsworn statements under Code § 38-415. The codefendants making statements could have been cross examined with their consent. Roberts v. State, 189 Ga. 36(1), 5 S.E.2d 340; Porch v. State, 207 Ga. 645(3), 63 S.E.2d 902.

Further, we know of no rule of law that would have prevented the appellant from offering the codefendants, including the one who entered a plea of nolo contendere and the other one who neither testified nor made a statement as witnesses in his behalf, if he thought they could and would testify favorably to him. See Cullens v. State, 94 Ga.App. 894(1), 96 S.E.2d 540. We find no abuse of discretion in refusing the motion for severance for the reasons urged. See Code § 27-2101 (Ga.L.1971, pp. 891, 892; Ga.L.1972, pp. 618, 619). We might add, however, that the unsworn statements of the codefendants in no way contradicted appellant's own version of the affair, but conformed therewith.

2. One of the enumerations of error is that 'the trial court erred in not granting a motion for mistrial made by the appellant when comment was made by the State of the failure of the appellant to call witnesses on his behalf.' The record does not disclose such a comment. The objection made is not proof of the factual grounds there stated. See Johnson v. State, 123 Ga.App. 857(2), 182 S.E.2d 701. Aside from this, however, '(i)t is perfectly proper for the prosecuting attorney to comment on the fact that the defendant failed to adduce testimony in rebuttal of the State's evidence.' Berry v. State, 123 Ga.App. 616(1), 182 S.E.2d 166. See also Vaughn v. State, 126 Ga.App. 252, 263, 190 S.E.2d 609.

3. On sentence hearing the defendant objected to the admission into evidence of certified copies of a sentence and plea of guilty to a charge of 'possession of dangerous drugs' in the Peoples' Court of the State of Colorado, Larimer County, and to the admission in evidence of a similar proceeding on a charge of burglary in the District Court of the Third Judicial District, Salt Lake County, State of Utah. The defendant testified that in both cases he was represented by a public defender who never discussed the case with him, and that they told him to plead guilty. When asked by the trial judge 'did you voluntarily enter your plea,' the defendant replied, 'I was offered a deal,' and when the question was repeated, replied, 'yes, sir.' Then the following questions were asked and the following answers given by the defendant: 'Q. Mr. Moore, did you just tell the Judge you were offered a deal? A. Yes, sir. Q. And after that you entered a plea? A. Yes, sir. Q. On each of these two cases, are you saying that you were offered a deal before you entered a plea? A. Right. Q. And what was it on each one of the so-called deals? A. The one in Utah, they...