Norman v. State

• Citation: 398 S.E.2d 395,197 Ga.App. 333
• Decision Date: 05 October 1990
• Docket Number: No. A90A1943,A90A1943
• Parties: NORMAN v. The STATE.
• Court: United States Court of Appeals (Georgia)

Page 395

398 S.E.2d 395

197 Ga.App. 333

NORMAN v. The STATE.

No. A90A1943.

Court of Appeals of Georgia.

Oct. 5, 1990.

Rehearing Denied Oct. 19, 1990.

Sinnreich & Francisco, Elizabeth R. Francisco, Macon, for appellant.

Edward D. Lukemire, Dist. Atty., Shelley S. Howard, Asst. Dist. Atty., for appellee.

BIRDSONG, Judge.

Cecil B. Norman appeals his sentence resulting from his conviction of aggravated assault by shooting his wife in the chest with a deadly weapon.

Appellant's wife testified appellant shot her in the chest with a pistol, and several witnesses testified as to res gestae statements made by the wife concerning the incident. Certain expert witnesses testified regarding such matters, inter alia, as gunpowder residue and cartridge markings. A doctor testified that it was unlikely the wound was self-inflicted if the victim was right-handed, but it was possible the gun could have been held in an unnatural position during a struggle for control of it when it discharged.

Appellant testified his wife had attempted to commit suicide and that the gun had accidentally discharged as he attempted to prevent her from killing herself. Appellant also presented several character witnesses, and expert testimony which tended to show that the incident could have occurred as claimed by the defense. Held:

1. On appeal evidence must be viewed in the light most favorable to the verdict, and appellant no longer enjoys a presumption of innocence; moreover, on appeal this court determines evidence sufficiency, and does not weigh the evidence or determine witness credibility. Robinson v. State, 194 Ga.App. 432, 433(1), 390 S.E.2d 652. Review of the transcript in a light most favorable to the jury's verdict reveals ample evidence from which any rational trier of fact could have found beyond a reasonable doubt that appellant was guilty of the offense charged. Jackson v. Virginia, 443 U.S. 307, 99 S.Ct. 2781, 61 L.Ed.2d 560.

2. Appellant asserts it was error to permit the unsworn prior statement of the wife to be admitted in evidence as an exhibit available to the jury.

Appellant specifically argues and offers citations of authority in his brief on the sole issue that it was reversible error to allow a prior written statement of a witness to be taken out with the jury for its review during deliberation. The record reflects that appellant failed to make a timely objection on this specific ground at trial, although he did object to the admission of the statement on other grounds not now asserted. "If counsel desires to preserve an objection upon a specific point for appeal, the objection must be made at trial upon that specific ground." Ray v. State, 187 Ga.App. 451, 452, 370 S.E.2d 629; compare Mundy v. State, 259 Ga. 634(5), 385 S.E.2d 666. An objection on a specific ground at trial waives any objection to that evidence on other grounds on appeal. People v. Hardy, 77 Ill.App.3d 37, 32 Ill.Dec. 513, 395 N.E.2d 743(5). Moreover, "the court properly permitted these exhibits to go to the jury room in the absence of a proper objection." Sanders v. State, 246 Ga. 42(2), 268 S.E.2d 628.

Appellant apparently has elected not to argue or cite authority in direct support of this enumeration, that it would constitute prejudicial error merely to admit evidence of the note written to the police by the victim, as she lay severely wounded in her house shortly after the shooting, or by allowing its reading to the jury. See generally OCGA § 23-3-3; Houston v. State, 187 Ga.App. 335, 340(5), 370 S.E.2d 178; Cowart v. State, 179 Ga.App. 108, 345 S.E.2d 655. Accordingly, these particular issues, even if tacitly contained within the scope of this enumeration, are deemed to be abandoned. Court of Appeals Rule 15(c)(2).

3. Appellant asserts that it was error, and a violation of due process and equal protection under the laws of the United States and the State of Georgia, to exclude testimony of the prior consistent statement of the appellant, particularly in conjunction with the admission over objection of the prior unsworn consistent statements of the prosecutrix.

These assertions of a violation of appellant's constitutional rights of due process and equal protection were not timely raised and ruled upon by the trial court. Constitutional issues not raised below are not preserved for appeal. Meders v. State, 260 Ga. 49(2)(b), 389 S.E.2d 320; Allen v. Montgomery Ward, etc., 186 Ga.App. 337, 339(2), 367 S.E.2d 120.

Regarding the inadmissibility of appellant's out-of-court statements wherein he had described the shooting as an accident, we find Grude v. State, 189 Ga.App. 901(2), 377 S.E.2d 731 controlling, and Cuzzort v. State, 254 Ga. 745, 334 S.E.2d 661 distinguishable for the reasons expressed in Grude. We are satisfied that no error was committed in this particular instance.

Moreover, we note the record is replete with testimony of both the appellant and defense witnesses that, from the time of the initial statements of appellant's wife, her husband had shot her, appellant staunchly maintained the incident had not happened in that manner. In fact, appellant's wife testified "every time I said that [appellant] shot me I heard him saying ... no, no, she's all mixed up, she's all wrong, that's not the way it was...." Further, police officer Smith testified that appellant said "he was leaving for work.... [H]e turned around and [his wife] was getting ready to shoot herself and he tried to 4. Appellant asserts that it was error to permit his wife in unresponsive remarks throughout the trial to attack the general good character of appellant, although he had not yet put his own good character into issue. Specifically, appellant argues that as a result of continual allegations of past and current infidelity, allegedly unsupported by any proof, he was placed on trial less for the alleged assault than on the issue of his "marital success."

                struggle the gun away and it went off."   In view of the posture of the record, assuming arguendo error occurred in excluding the so-called prior consistent statement of appellant, we are satisfied beyond a reasonable doubt that the error, even if of constitutional magnitude, did not contribute to the verdict.  Even "[a] constitutional error ... will not require reversal if it can be shown to the court beyond a reasonable doubt that the evidence did not contribute to the conviction."  Moore v. State, 254 Ga. 674, 677, 333 S.E.2d 605
                

Appellant asserts, inter alia, that he had a continuing objection to references to his infidelity and marital separation contained in the wife's handwritten note to the police, State's Exhibit 8, and by implication argues that this continuing objection was broad enough also to include that portion of the testimony of the wife (and any other witnesses) which, although not directly concerning the note, informed the court of appellant's relationship with another woman and of his marital separations.

Review of the record reveals appellant filed a motion in limine to the introduction of evidence as to the break-up of the marriage and as to appellant's past or current adulterous behavior; however, the specific objection therein posed to this evidence was that "[a]n objection made at trial would not be sufficient to protect against the prejudicial impact this irrelevant information would have on the jury." This specific objection most broadly interpreted is thus one of both logical and legal relevancy, the latter grounds raising the issue of whether the probative value of the evidence was substantially outweighed by its potential for prejudice. Appellant...