Nobles v. State

• Decision Date: 10 September 1991
• Docket Number: No. A91A1047,A91A1047
• Citation: 411 S.E.2d 294,201 Ga.App. 483
• Parties: NOBLES v. The STATE.
• Court: Georgia Court of Appeals

Page 294

411 S.E.2d 294

201 Ga.App. 483

NOBLES v. The STATE.

No. A91A1047.

Court of Appeals of Georgia.

Sept. 10, 1991.

Reconsideration Denied Oct. 15, 1991.

Certiorari Denied Nov. 7, 1991.

Jackson & Schiavone, Michael G. Schiavone, and Mark E. Smith, Savannah, for appellant.

Spencer Lawton, Jr., Dist. Atty. and David T. Lock, Asst. Dist. Atty., for appellee.

McMURRAY, Presiding Judge.

This is the third appearance of this case. Nobles, who was 16 years old at the time of the crimes, was indicted for murder and possession of a knife during the commission of a felony and convicted of voluntary manslaughter and the knife possession charge on April 28, 1988. In Nobles v. State, 191 Ga.App. 594, 382 S.E.2d 637, where the pertinent facts are stated, these convictions were reversed because a statement taken from Nobles in violation of his Miranda rights (Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694), was introduced in evidence. After remand for retrial, a second appeal was brought from the denial of Nobles' double jeopardy claim, in which this Court held that although the in-custody statement should not have been admitted, the remaining evidence was sufficient to support both convictions. Nobles v. State, 195 Ga.App. 725, 394 S.E.2d 613. Nobles was retried before a jury and on October 4, 1990, was again found guilty of voluntary manslaughter and possession of a knife during the commission of a felony. He was sentenced to ten years on the first count and five years on the second, to be served consecutively in a youthful offender facility. He appeals therefrom and enumerates 27 errors. Held:

1. Appellant Nobles contends that the trial court erred in answering a juror's question by misleading and confusing the jury and making the court's opinion known to the jury. The juror inquired whether, if he came on a scene where his wife was being threatened and he thought she was going to be killed, he would be guilty of voluntary manslaughter if he killed the person who threatened his wife. The judge replied that he could not tell the juror the answer to the question, but he would try to give him "a pure example without self-defense." He explained that where "two people are at a bar drinking and they have an argument and they get in a fight and one person kills the other[, t]hat's voluntary manslaughter. It's not murder, because there was no malice involved; there was just anger caused by what happened at the bar, the argument they got into." The judge then reinstructed the jury on reasonable doubt. Appellant Nobles argues that the correct answer was "no," and that a recharge on self-defense should have been given at that time. We find no reversible error. Appellant has demonstrated no impropriety in the example given by the trial court or in the instructions following it, and we discern nothing in the illustration which might serve to mislead or confuse the jury. Also, the trial judge did subsequently recharge on self-defense, as he said at the time he intended to do later. Nor is appellant correct in asserting that the court prejudiced the instruction by stating that it was given at appellant's request, as the judge actually told the jury that he had discussed it with "the attorneys and we thought" a recharge on self-defense should be given.

The court has the right on receiving a request for further instructions to give such a reply as the facts may warrant. Miller v. State, 195 Ga.App. 89(3), 392 S.E.2d 334. " 'Where the trial judge in charging the jury correctly states the law governing the case, but exception is taken to an illustration used by the court explanatory of the illustration given, this court will not narrowly scrutinize the illustration, if satisfied that, whether right or wrong, it was not calculated to mislead, and did not in fact mislead, the jury.' [Cit.] The illustration given by the judge tended to show what is meant in law by [voluntary manslaughter], and was an apt illustration of the idea intended to be conveyed." Hall v. State, 239 Ga. 832, 833(2), 238 S.E.2d 912.

2. The jury foreman also requested the court to give the jurors some guidelines on which to base their determination of what constituted justifiable force; the judge instructed them that they had to set their own standards and "determine from the facts in this case and from the viewpoint of the defendant what a reasonable man would have done under similar circumstances." Appellant complains that this recharge was reversible error because it failed to inform the jury that under the law a person is justified in using force which is intended or likely to cause death or great bodily harm if he reasonably believes that such force is necessary to prevent death or great bodily injury to himself or a third person or to prevent the commission of a forcible felony.

" 'Where the jury, after having been charged by the court, returns into court and requests an instruction upon a specific question, it is not error for the judge to confine his instruction to the specific point suggested by the jury's inquiry. (Cits.) It is within the court's discretion to recharge in full or only upon the point or points requested. (Cits.) ... The jury asked for a charge on a specific point and the jury was charged upon that point.... This was sufficient to satisfy the requirements of the law.' [Cit.]" Dyer v. State, 167 Ga.App. 310, 311(3), 306 S.E.2d 313. Accord Brown v. State, 258 Ga. 152, 154(4), 366 S.E.2d 668.

3. The trial court refused the jury's request to see a transcript of the testimony of appellant and his girl friend, which had not been prepared at that time, stating that although there was a tape recording he would not allow it to be played because it would "spotlight [the] testimony out of context with the entire trial." Appellant contends that this was the only evidence offered on his defense of self-defense and, since the jury was denied the opportunity to clarify the facts, appellant did not receive a fair trial. There were numerous witnesses who testified at trial concerning the events leading up to the stabbing of the victim from which the jury could determine the facts. Whether or not to grant a jury's request to rehear portions of such evidence is within the discretion of the trial judge, and appellant has failed to carry his burden of showing that the court abused its discretion here. Coleman v. State, 194 Ga.App. 404(2), 391 S.E.2d 15. See Morris v. State, 254 Ga. 273, 274(2), 328 S.E.2d 547.

4. Appellant asserts that the trial court erroneously denied his motion for directed verdict at the close of the State's evidence and his motion for new trial on the general grounds. These enumerations are without merit. The evidence adduced at trial was virtually the same as the evidence adduced at the first trial and it was sufficient to authorize the jury's finding that defendant was guilty, beyond a reasonable doubt, of voluntary manslaughter and possession of a knife during the commission of a felony. Nobles v. State, 191 Ga.App. 594, 597(1,b), 382 S.E.2d 637, supra; Rose v. State, 195 Ga.App. 399, 400(2), 393 S.E.2d 459.

5. Error is assigned to the trial court's allowance of the pathologist's testimony, over appellant's objection, that the cause of the victim's death was "hypovolemic shock secondary to blood loss" because the autopsy report provided to him pursuant to OCGA § 17-7-211 did not contain this information. We are unable to perceive what harm this testimony may have occasioned, and do not agree with appellant that without the cause of death the State could not prove that a crime had been committed which formed the basis of the indictment. Any autopsy report must necessarily be related to the cause of death, and the final diagnosis was delineated on the first page of the report as "stab wound, right flank with transection of liver, colon, duodenum and diaphragm." The authority upon which appellant relies relates to empirical test results of the amount of drugs present in the defendant's blood and urine, concerning which this Court held that the failure to produce the written scientific report left the defense at a "huge disadvantage" in trying to cross-examine the State's witnesses as to the implications of the test results and the formation of their opinions. See Durden v. State, 187 Ga.App. 154(1), 158, 369 S.E.2d 764. No grounds for reversal have been shown here.

6. Appellant contends that the trial court erred in quashing a subpoena of a television news reporter, and in denying a hearing on his motion for new trial which precluded a determination of whether the mistrial should have been granted because of jury misconduct or tampering. We note in the record, however, a letter dated November 15, 1990, from defense counsel to the trial judge that not only refers to a hearing on the motion for new trial held on November 9, 1990, but also discusses "another hearing scheduled for December 6, 1990, at which time [appellant] will be given an opportunity to introduce the tape from WSAV in reference to the Court's ruling granting the Motion to Quash [the] subpoena of [the news reporter] in this matter."

No transcript of either of the hearings referred to appears in the record before us on appeal, but the trial transcript and the order granting the motion to quash show that on the morning before the jury returned its verdict, appellant's attorney informed the court that a reporter on the WSAV-TV 6:00 news had stated that he had learned the jury was eleven to one for conviction and one juror was holding out and would not budge. After the jury rendered its verdict of guilty on both counts, the trial court asked the foreman to state how they stood when they were dispersed the previous evening. When the foreman replied that they stood nine to three, the court further questioned the jury as a whole as to whether any of them had seen the telecast in question. All said they had not. Accordingly, the trial court...