Nelson v. State

• Decision Date: 20 May 1993
• Docket Number: No. A93A0404,A93A0404
• Citation: 431 S.E.2d 450,208 Ga.App. 671
• Parties: NELSON v. The STATE.
• Court: Georgia Court of Appeals

Page 450

431 S.E.2d 450

208 Ga.App. 671

NELSON v. The STATE.

No. A93A0404.

Court of Appeals of Georgia.

May 20, 1993.

Hartley, Puls & O'Connor, Alton G. Hartley, Decatur, for appellant.

J. Tom Morgan III, Dist. Atty., Stacy Y. Cole, John H. Petrey, Asst. Dist. Attys., for appellee.

BIRDSONG, Presiding Judge.

Malik Nelson a/k/a Todd Shaw appeals his conviction of aggravated assault upon a police officer, OCGA § 16-5-21, and possession of a firearm by a first offender, OCGA § 16-11-131, and the denial of his amended motion for new trial. Held:

1. After a man walking along the street was killed by a shotgun blast from the hatchback vehicle in which appellant and four other persons were riding, shots were fired from the rear of the hatchback striking police officer Weller's patrol car. Although the patrol car was following without blue lights or siren engaged, it was a marked patrol car with a blue light bar. All the occupants of the hatchback had their heads turned back toward the patrol car before the shots were fired. One occupant testified he initially saw the police before pursuit began, and that he and appellant had jumped into the hatchback, which had been temporarily stopped. During pursuit the hatchback took various evasive actions, then stopped; before the officer could engage his blue lights, shots were fired by a suspect sitting in the rear of the hatchback. At least two shots struck the officer's patrol car, which was then about fifty feet away. The evidence as to who actually discharged the firearm was in conflict; however, one of the juveniles in the hatchback (against whom charges were dismissed after he agreed to testify in the trial of appellant suspect) testified he immediately turned around after three shotgun blasts were fired and saw appellant holding the shotgun in the hatchback section of the vehicle. Another occupant testified appellant fired the shots.

Appellant contests the credibility of the State's witnesses and the weight to be given their testimony. On appeal the evidence must be viewed in the light most favorable to support the verdict, and appellant no longer enjoys a presumption of innocence; moreover, an appellate court determines evidence sufficiency and does not weigh the evidence or determine witness credibility. Grant v. State, 195 Ga.App. 463(1), 393 S.E.2d 737. Mere presence at the scene of a crime does not make a person a party to that crime. Owens v. State, 204 Ga.App. 579, 581(3), 420 S.E.2d 79. Nevertheless, appellant's firing of the weapon and knowledge that the person at whom he fired was a police officer can be established by direct and/or circumstantial evidence. See OCGA § 24-1-1. Likewise, it could be established by direct and/or circumstantial evidence that appellant was a party to the crime within the meaning of OCGA § 16-2-20. "Conduct and companionship before and after the crime are circumstances from which the factfinder may infer criminal intent." Todd v. State, 189 Ga.App. 538, 540, 376 S.E.2d 917. Further, all members of the group fled the scene. "Flight is circumstantial evidence of consciousness of guilt; the weight to be given such evidence is for the jury to decide." Green v. State, 206 Ga.App. 42, 44(3), 424 S.E.2d 646. Applying the standards of Jackson v. Virginia, 443 U.S. 307, 99 S.Ct. 2781, 61 L.Ed.2d 560, the evidence supports the verdict.

2. Appellant's motion to sever the offense of possession of a firearm by first offender probationer was denied. The trial court did not abuse its discretion in denying the severance motion; a bifurcated trial was not mandated. See Appling v. State, 256 Ga. 36, 37(1), 343 S.E.2d 684; see also Freeman v. State, 205 Ga.App. 112, 421 S.E.2d 308. Nor, in the absence of a timely, written request for instruction, did the subsequent failure to charge the jury that a prior first offender disposition may not be considered in deciding the murder count render the denial of severance erroneous. Compare Williams v. State, 262 Ga. 422, 423(4), 420 S.E.2d 301 (appellant acquitted of murder). Additionally, appellant has failed to enumerate as error the lack of any limiting instruction regarding use of prior first offender evidence; accordingly, this issue is not preserved for appeal. Chezem v. State, 199 Ga.App. 869, 870(2), 406 S.E.2d 522.

3. Appellant asserts the trial court erred in denying his motion for mistrial, because a detective prejudicially interjected appellant's character in issue when he testified that "the name [of appellant] was brought up, and then I found out from another detective in an unrelated case." Appellant concedes in his brief that there is no absolute right to a mistrial in such a situation, but that a curative instruction should have been given as it was implied appellant was previously arrested.

As the motion for mistrial was not made at the time the testimony objected to was given (it appears several pages later in the transcript), it was not timely; the issue is waived on appeal. Thaxton v. State, 260 Ga. 141, 143(5), 390 S.E.2d 841; Dye v. State, 177 Ga.App. 824, 341 S.E.2d 314. Nor was a timely request made for a curative instruction; this issue also is waived on appeal. See Carr v. State, 259 Ga. 318, 320(2), 380 S.E.2d 700; Oller v. State, 187 Ga.App. 818, 823(4), 371 S.E.2d 455. Further, review of the questioned testimony does not reveal that it reasonably implied appellant's prior arrest...