Newman v. State, 32338

• Decision Date: 30 June 1977
• Docket Number: No. 32338,32338
• Citation: 239 Ga. 329,236 S.E.2d 673
• Court: Georgia Supreme Court
• Parties: Jack Michael NEWMAN v. The STATE.

Page 673

236 S.E.2d 673

239 Ga. 329

Jack Michael NEWMAN v. The STATE.

No. 32338.

Supreme Court of Georgia.

June 30, 1977.

Guy R. Dunn, Hapeville, for appellant.

William H. Ison, Dist. Atty., Michael D. Anderson, Asst. Dist. Atty., Jonesboro, Arthur K. Bolton, Atty. Gen., Harrison Kohler, Asst. Atty. Gen., Atlanta, for appellee.

INGRAM, Justice.

This appeal is from appellant's conviction at a second trial for armed robbery in Clayton Superior Court. At the first trial, the jury was unable to reach a verdict on the armed robbery charge. We affirm.

The evidence introduced by the State showed that the appellant was the driver of a getaway car in an armed robbery of the Radio Shack located in Riverdale Shopping Plaza in Riverdale, Georgia. Appellant testified in his own behalf and denied any foreknowledge that his alleged accomplice was going to commit the robbery. His protestations of innocence were belied by evidence of his attempts to make a quick getaway from the scene of the crime and to elude the police when they spotted the getaway car shortly after the robbery.

The appellant enumerates as error the failure of the trial court to record the opening statement of the prosecuting attorney.

Code Ann. § 27-2401 plainly states that the arguments of counsel need not be recorded. See Newell v. State, 237 Ga. 488, 228 S.E.2d 873 (1976). Appellant made no request at trial that the opening statements of counsel be recorded. Although appellant states that the prosecutor's opening statement was harmful and prejudicial to him, he makes no specific showing of how he was harmed or prejudiced. Nor error appears. See Watts v. State, 141 Ga.App. 127, 128, 232 S.E.2d 590 (1977); Montgomery v. State, 140 Ga.App. 286, 288, 231 S.E.2d 108 (1976).

Appellant complains of the admission of the testimony of two police officers that he, appellant, had been given his Miranda warnings. Appellant objected to this testimony at trial on grounds that a proper foundation had not been laid to show that appellant had been advised of his constitutional rights and the Miranda warnings were not full.

Objection on the ground of a lack of proper foundation without stating what the proper foundation should be is insufficient and presents nothing for consideration on appeal. Barkley v. State, 190 Ga. 641(3), 10 S.E.2d 32 (1940); Freeman v. Young, 147 Ga. 699, 95 S.E. 236 (1918); Dillard v. State, 128 Ga.App. 747, 197 S.E.2d 924 (1973).

Furthermore, a review of the transcript shows that appellant was given his full four-point Miranda warnings. Consequently, this enumeration of error is without merit.

Testimony was received at trial that when appellant and his accomplice were apprehended by the police shortly after the robbery, appellant got out of his car and began walking toward the police car even though he had been told to stop. When appellant had positioned himself in front of the police officer, he dropped to the ground and his accomplice jumped out of the car and began firing at the police officer. Appellant objected to the admission of this evidence at trial on the ground that he had been acquitted of an aggravated assault charge stemming from this shooting at his first trial.

In Bixby v. State, 234 Ga. 812, 813, 218 S.E.2d 609, 611 (1975), it was said: " 'The flight of the accused, where and when arrested, whether he resisted or not, how he was armed, and all the circumstances attending his arrest, are admissible to be considered by the jury for what they are worth.' Wynne v. State, 56 Ga. 113(5)." State v. Luke, 232 Ga. 815, 209 S.E.2d 165 (1974), held that where evidence is relevant for the purpose of showing the circumstances of the arrest, it will not be excluded because it incidentally shows the commission of another crime. It follows that...