Osborn v. State, A98A1559.
| Decision Date | 02 July 1998 |
| Docket Number | No. A98A1559.,A98A1559. |
| Citation | 233 Ga. App. 257,504 S.E.2d 74 |
| Parties | OSBORN v. The STATE. |
| Court | Georgia Court of Appeals |
OPINION TEXT STARTS HERE
Kathleen J. Anderson, Athens, for appellant.
Timothy G. Madison, District Attorney, Robin R. Riggs, Assistant District Attorney, for appellee.
On October 27, 1993, the defendant, Houston Wayne Osborn, was convicted by a jury of: (1) Count 1, aggravated assault by placing a knife at Donna Osborn's (his wife) throat, and (2) Count 2, aggravated assault by charging toward Michael Osborn (his son) with a knife and pointing a knife at his throat.1 The defendant was sentenced to twenty years, to serve ten years, with the balance on probation on each count to run concurrently.
The defendant filed a motion for new trial on November 8, 1993. An amended motion for new trial was filed on November 24, 1997. After a hearing, the defendant's motion for new trial was denied on January 6, 1998. It is from this order that the defendant appeals. Without challenging the sufficiency of the evidence, the defendant enumerates four errors of law. We find each of these enumerations without merit and affirm.
On August 29, 1993, the defendant's son went to his parents' home with his roommate, Steven Pierce, to work on his truck. While he was there, his parents got into an argument about the presence of pets in the house and the resulting hair in the defendant's food. The defendant began throwing items that were within his reach at the wall. While the defendant was berating his wife, he took a knife and hit the door frame with the blade.
As the defendant's son left the house, the defendant walked in a fast pace up to his son, put the knife to his throat and threatened to "cut him." When the defendant's wife attempted to intercede on their son's behalf, the defendant grabbed her and held the knife to her throat.
The son got a gun from his truck, approached the defendant and requested that the defendant leave his mother alone. The defendant and the son began struggling over possession of the gun. The defendant gained possession of the gun. The gun was fired three times. The first shot went through the son's hand and hit the trailer. The second and third shots were blank.
1. In his first enumeration of error, the defendant alleges that the trial court erred in refusing to grant a mistrial when the defendant's son testified that the defendant had been in prison.
During cross-examination of Michael Osborn by the defense, the following testimony was given by the witness.
The defense attorney did not object at this time to the witness' response about the defendant being in jail. The following day, the defense counsel made a motion for a mistrial based on the unresponsive answer of Michael Osborn about the defendant being in prison. The trial court denied the motion for mistrial but offered to give a corrective charge. The defense attorney refused the corrective charge, asserting that it would draw more attention to the statement.
Buxton v. State, 253 Ga. 137, 139(3), 317 S.E.2d 538 (1984). "There was no error in denying the motion for mistrial after the defendant declined curative instructions." (Citation omitted.) Collins v. State, 229 Ga. App. 210, 213, 493 S.E.2d 592 (1997); Fitzgerald v. State, 193 Ga.App. 76, 78, 386 S.E.2d 914 (1989).
Further, the defendant's objection to the witness' response and motion for mistrial was not timely made. (Citations and punctuation omitted.) Doughty v. State, 175 Ga.App. 317, 321, 333 S.E.2d 402 (1985). "It is well-settled in this state that it is too late to urge objections to the admission of evidence after it has been admitted without objection." (Citations and punctuation omitted.) Howell v. State, 179 Ga.App. 632, 635, 347 S.E.2d 358 (1986).
2. In two enumerations of error, the defendant asserts that the trial court erred in admitting a statement made by the defendant while he was incarcerated because it was not provided to the defense prior to trial pursuant to the provisions of former OCGA § 17-7-210, and it was intended for his attorney and, therefore, privileged under the attorney-client privilege.
On a Sunday, about three weeks prior to trial, the defendant's wife went to visit the defendant at the jail. The defendant gave a document to Mrs. Osborn that he had written which purported to be Mrs. Osborn's statement of what had occurred, asked her to recopy the document in her own handwriting, sign the document and have it notarized, and give it to his attorney. The defendant then placed the document in an envelope with his attorney's name on the outside of the envelope. Mrs. Osborn testified that the defendant addressed the envelope to his attorney "so that he could give—so they wouldn't open it and go through it in the visiting room if they found it when he handed me his dirty clothes."
Mrs. Osborn testified that she refused to recopy the document and sign her name to it because At some point after the document came into Mrs. Osborn's possession, she went by defense counsel's office and told defense counsel that the defendant had written a document for her to sign and have notarized. Mrs. Osborn further testified that a few days before trial, she met with the prosecutor and told him about the document. At such time, she gave the statement to the State.
(a) Former OCGA § 17-7-210, now repealed, applies to this matter, as it was docketed prior to January 1, 1995. See Ga. L.1994, p. 1895,...
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