Myrick v. State
| Decision Date | 02 September 1980 |
| Docket Number | No. 60254,60254 |
| Parties | MYRICK v. The STATE. |
| Court | Georgia Court of Appeals |
Michael Edward Bergin, Atlanta, for appellant.
Lewis R. Slaton, Dist. Atty., Joseph J. Drolet, Margaret V. Lines, Asst. Dist. Attys., for appellee.
This case is a companion case to Warner v. State, 155 Ga.App. 495, 271 S.E.2d 636 (1980), and Myrick also appeals from his convictions of theft by taking, credit card theft and violation of the Georgia Firearms and Weapons Act.
1. Appellant claims that the trial court erred in not granting a severance and that introduction of Warner's confession to a police officer denied him of his right to confrontation because Warner refused to take the witness stand.
Crawford v. State, 148 Ga.App. 523, 526, 251 S.E.2d 602, 604 (1978). Appellant contends that his rights were damaged by the failure of the court to grant a separate trial because Warner could have been called to the witness stand and would have offered testimony that would have tended to exculpate appellant. There is nothing in the record to show that had appellant been given a separate trial Warner would have waived his Fifth Amendment rights and been willing to testify or that Warner would have given exculpatory testimony. As appellant failed to present such evidence to the trial court, the court did not abuse its discretion in denying his motion to sever. Likewise, the admission of Warner's statement to the police officer did not require a severance. The trial court held a Jackson-Denno hearing and determined that the statement was freely and voluntarily made. Warner stated that he knew that the credit cards were stolen and admitted using a stolen bank card at the C & S Instant Teller and that he knew that the shotgun was in the trunk of the car although he denied that it belonged to him. The statement did not name either of the co-defendants and did not implicate them in any way. It did not in any way contradict the statements of Jackson or Myrick. Rather, it conformed with them. Any possible error in admitting a confession of a co-defendant where the co-defendant refused to testify is rendered harmless where the confession parallels the statements of the co-defendants. Baker v. State, 238 Ga. 389, 233 S.E.2d 347 (1977). The trial court did not abuse its discretion in denying appellant's motion to sever.
2. Appellant complains that his confession and that of his co-defendant Jackson were involuntarily made and therefore improperly admitted into evidence. The trial court held a Jackson-Denno hearing and found that the statements were freely and voluntarily made. There is ample evidence to support the findings of the trial judge and they will be accepted by this court. Brown v. State, 150 Ga.App. 116, 257 S.E.2d 25 (1979). The fact that the admissions were not reduced to writing does not make them inadmissible. Hayes v. State, 152 Ga.App. 858, 264 S.E.2d 307 (1979). After the state made a prima facie showing of voluntariness, the question of whether the statement was freely and voluntarily given was one of fact for the jury. Frazier v. State, 150 Ga.App. 343, 258 S.E.2d 29 (1979). There was ample evidence from which the court and the jury could find that the statements were freely and voluntarily made. Gray v. State, 151 Ga.App. 684, 261 S.E.2d 402 (1979). Appellant has no standing to complain of the voluntariness of his co-defendant's confession. Sims v. State, 243 Ga. 83, 252 S.E.2d 501 (1979).
3. Appellant further contends that the trial court erred in rebuking counsel before a single isolated juror. The transcript shows that in the midst of the trial, the court was informed that one of the jurors knew two of the defendants. The trial court offered to impanel the alternate juror and the district attorney replied, "I think the ultimate question is, will the juror be fair and impartial." The court then asked if counsel wanted the juror in question to be brought in and questioned as to her impartiality. Counsel agreed to have the juror brought in and questioned by the court. During questioning the juror stated that knowing two of the defendants would not keep her from being fair and impartial. Counsel for defendant Warner stated, "On behalf of all the defendants, they respectively request that this juror be kept impanelled." At that point the court reprimanded counsel for his comment by stating,
The transcript shows that no objection was voiced to the trial court's comments, nor were there any curative instructions requested or a motion made for a mistrial. Absent objection or a motion for a mistrial, appellant cannot complain of any alleged expression of opinion by the trial court. Brown v. State, 150 Ga.App. 289, 257 S.E.2d 359 (1979). As the motion for a mistrial was not made until after a recess, examination of a state's witness, submission of the state's exhibits into evidence and the close of the state's case, the trial court did not err in failing to grant an untimely motion for a mistrial where no objection had been made. Favors v. State, 145 Ga.App. 864, 244 S.E.2d 902 (1978).
4. Appellant enumerates as error the trial court's failure to grant a directed verdict as to count four of the indictment (possession of a sawed-off...
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Graham v. State
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