Munn v. State
| Citation | 431 S.E.2d 447,208 Ga.App. 674 |
| Decision Date | 20 May 1993 |
| Docket Number | No. A93A0480,A93A0480 |
| Parties | MUNN v. The STATE. |
| Court | United States Court of Appeals (Georgia) |
J. Robert Joiner, Atlanta, for appellant.
Lewis R. Slaton, Dist. Atty., Rebecca A. Keel, Asst. Dist. Atty., for appellee.
Lamar Munn appeals his judgment of conviction of armed robbery, aggravated assault and kidnapping, and sentence. Held:
1. The jury was asked if they were related to or knew the named victim in any way, and none in the array responded affirmatively; the jury subsequently was selected. On the second day of trial a juror reported that although she had not known the victim's name, she recognized her when the victim entered the courtroom. The juror had worked with the symphony two or three years earlier and, although she had not spoken with the victim to arrange ticket sales, she had picked up blocks of symphony tickets from her. The juror had no other contact with and had not seen the victim since that event; the juror had not been to the Arts Center in two years. On voir dire the juror who unequivocally maintained her ability to act objectively and to render a verdict based on the evidence and court instructions. The trial court declined appellant's request to replace the juror with the alternate juror (compare Stokes v. State, 204 Ga.App. 141, 418 S.E.2d 419). Appellant makes no claim the juror should have been excused for cause, or that the juror deliberately withheld information regarding her acquaintance with the victim; however, appellant maintains he was denied his right to use peremptory challenges "intelligently." The juror did not engage in any form of jury misconduct. When she failed to respond to the initial question regarding knowledge of the victim, it was because she was unaware of such knowledge; when she subsequently discovered her prior passing acquaintanceship with the victim, she immediately reported it. Compare Gainesville Radiology Group v. Hummel, 263 Ga. 91, 428 S.E.2d 786.
No presumption of prejudice exists in these circumstances; no irregularity or impropriety is involved in this juror's conduct. Notwithstanding appellant's belated claim of impairment to exercise peremptory challenges intelligently, under the circumstances the trial court did not err. McLamb v. State, 176 Ga.App. 727(3), 337 S.E.2d 360; cf. Poole v. State, 262 Ga. 668, 670(2), 424 S.E.2d 275; Jones v. State, 247 Ga. 268, 270(2b), 275 S.E.2d 67. The trial court did not abuse its discretion in determining the juror's impartiality. Cf. Jones, supra at 270-271(2b), 275 S.E.2d 67.
2. Appellant asserts the trial court erred in allowing in evidence the verdict from a previous trial, as it would tend to diminish the jury's sense of responsibility as to its verdict and violate his fair trial right. These contentions are without merit. The documents in question (State's Exhibit 20) provided circumstantial evidence of appellant's prior commission of an offense of armed robbery, and were relevant to appellant's identity as the perpetrator of a similar transaction (see Williams v. State, 261 Ga. 640, 643(2d), 409 S.E.2d 649). "[I]f evidence is duly admissible under any legitimate theory, it should be admitted even though it does not qualify for admission under one or more other evidentiary theories ... evidence should be admitted if it is admissible for any legitimate purpose." Boatright v. State, 192 Ga.App. 112, 116(6), 385 S.E.2d 298. See Norman v. State, 197 Ga.App. 333, 337(4), 398 S.E.2d 395. The trial court did not abuse its discretion in admitting State's Exhibit 20; Boatright, supra.
3. The trial court did not abuse its discretion in finding the two offenses similar within the meaning of Williams v. State, supra. Compare Maggard v. State, 259 Ga. 291, 380 S.E.2d 259. Both rapes involved appellant's approaching either a female stranger or a mere acquaintance in the early afternoon in a conspicuous (public) place, removing the victim to a relatively secluded spot by automobile, exiting the car on both occasions (in the prior case to get a knife; in the case at bar to raise the car hood) and employing either an approximately eight-inch kitchen knife or a long knife ("maybe" a kitchen knife) during the course of the rape in the prior case and the aggravated assault with intent to rape in the case at bar. Further, the passage of fourteen years from the date of the prior rape did not preclude the trial court from finding the two offenses sufficiently similar. Compare Gilstrap v. State, 261 Ga. 798, 799(1b), 410 S.E.2d 423 with Cooper v. State, 173 Ga.App. 254, 255, 325 S.E.2d 877.
4. In the prior armed robbery in 1985, appellant approached a female stranger in the afternoon whose car had broken down, got into her automobile, pulled a "huge" knife (larger than a kitchen knife), and demanded the victim's money. He implicitly threatened the victim by stating that she had better not be lying to him as to whether she had more money, looked through her wallet, and jumped out of the car and discarded the wallet when the policeman who had been assisting her returned. In the case at bar, appellant approached the female stranger in the underground parking area, threatened her with an eight-inch kitchen knife, demanded her money (whereupon the victim gave her wallet to him), threatened the victim implicitly by stating that there had better be money in the wallet, dragged her to her car, searched her wallet, announced his desire to engage in sexual release, and forced the victim to drive to a secluded area where she escaped. The prior robbery was sufficiently similar under Williams, supra. Compare Maggard, supra. The six-year time lapse did not render the prior offense inadmissible. Compare Gilstrap, supra, with Cooper, supra.
5. On appeal, citing Moore v. Illinois, 434 U.S. 220, 226, 98 S.Ct. 458, 463, 54 L.Ed.2d 424, appellant asserts a Sixth Amendment violation claiming he was denied the right to counsel by being compelled to be in a physical lineup without his counsel being present.
(a) Appellant does not argue or cite legal authority to establish that the physical lineup was conducted in an impermissible suggestive manner, or assert any other errors in the execution thereof; thus, such other issues have been abandoned. Court of Appeals Rule 15(c)(2).
(b) The trial court found as fact that appellant was informed in advance of the time and place of the lineup, could...
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