Patterson v. State, A91A1487

• Decision Date: 07 January 1992
• Docket Number: No. A91A1487,A91A1487
• Citation: 414 S.E.2d 895,202 Ga.App. 440
• Parties: PATTERSON et al. v. The STATE.
• Court: Georgia Court of Appeals

Page 895

414 S.E.2d 895

202 Ga.App. 440

PATTERSON et al. v. The STATE.

No. A91A1487.

Court of Appeals of Georgia.

Jan. 7, 1992.

Richard L. Yancey, Marietta, for appellants.

Jack O. Partain, III, Dist. Atty., Kermit N. McManus, Kurt A. Kegel, Asst. Dist. Attys., for appellee.

BIRDSONG, Presiding Judge.

Appellants Claude Patterson and David Warren Locke were convicted of arson in the second degree and appeal. Held :

1. Appellants contend that the trial court committed reversible error in denying their motions for continuance because their attorney was not retained until ten minutes before the jury was selected. In making this ruling preceding the trial on March 27, 1991, the trial court noted that when the case was first called in September it was continued to give the defendants time to hire counsel, as they were not entitled to appointed counsel when they were found not to be indigent. The case appeared before the court in October, and was again continued until the February term in order to allow the defendants further opportunity to retain counsel. When the case reappeared on the February calendar and the defendants still had not retained an attorney, another continuance was granted until March. At the last appearance for trial, the motion made by the defendants' attorney based upon his having been hired only ten minutes previously was denied on the ground that no excuse had been offered by the defendants for their delay in retaining counsel.

We find no error. "In all cases, the party making an application for a continuance must show that he has used due diligence." OCGA § 17-8-20. The defendants here proffered no evidence that they had exercised such due diligence, nor did they explain their delay in hiring counsel. "A motion for continuance based on counsel's claim of insufficient time to prepare for trial is addressed to the sound legal discretion of the trial court...." Snow v. State, 178 Ga.App. 842, 344 S.E.2d 762. " ' "The refusal of a motion to continue will not be reversed unless it is manifest that there has been an abuse of discretion on the part of the trial judge." ' [Cits.] We are satisfied that in this instance the trial court did not breach its discretion ... in refusing to grant the requested continuance." Laster v. State, 196 Ga.App. 854, 855(1), 397 S.E.2d 191.

2. Appellants complain that the State acted improperly when it subpoenaed appellant Patterson's wife and called her to the stand as its witness without informing her that she had the right not to testify against her husband; and that it was erroneous to permit her to invoke her marital privilege before the jury. This occurred when the State called Mrs. Patterson as its first witness; during her examination defense counsel objected and asked the court whether she had been apprised of her right not to testify against her husband. The judge noted that he could not answer the question as this was her privilege, which she could invoke if she wished. The witness stated that she did not want to testify, the court agreed, and at that point the prosecutor suggested that the jury be retired. Defense counsel made no objection to this procedure either before or after the jury retired.

In Westbrook v. State, 162 Ga.App. 130, 290 S.E.2d 333 (1982), we held that under normal circumstances the election of one spouse to refrain from testifying against the other should be made outside the presence of the jury. As to the circumstance of the spouse's voluntarily taking the stand, see Wiley v. State, 150 Ga.App. 607, 608(1), 258 S.E.2d 286. In this case, Mrs. Patterson did not voluntarily take the stand, and in the circumstances, the cause of her being forced to invoke her privilege in front of the jury during her examination was caused as much by the defendant as it was the State. In Westbrook, we held 162 Ga.App. at 131(2), 290 S.E.2d 333 that "[t]his right, although belonging to the defendant in the first instance, may be waived, and should be considered waived if it becomes a methodology for forcing or bringing the issue to the jury's attention. Where the whole purpose of deciding the question in privacy is to avoid alerting the jury to the spouse's election, any act by the defendant which intentionally does so must be considered a waiver." Mrs. Patterson's invocation of her privilege in public could have been avoided had defense counsel requested that the matter be taken up outside the presence of the jury when she first took the stand. Id. at 130(1), 290 S.E.2d 333. "Under these circumstances it appears that the defendant's right to have the decision made in private had been waived.... One cannot complain of an error which his own conduct aided in causing. [Cits.]" Id. at 130(2), 290 S.E.2d 333; see Hawkins v. State, 195 Ga.App. 739(2), 395 S.E.2d 251; compare Williams v. State, 195 Ga.App. 376(2), 393 S.E.2d 506.

3. Appellants assert that the trial court erred in failing to grant their motion for directed verdict of acquittal because the State failed to carry the burden of proof, that is, the circumstantial evidence introduced by the State was too weak to present a jury question. Doug Lowery and his wife Michelle testified for the State that on August 7, 1990, as they drove down Ballground Road in Murray County, Georgia, they saw appellant David Locke standing beside a parked car and Claude Patterson driving a pickup truck that stopped next to the parked car. About 25 minutes later when they drove past the scene again, the Lowerys saw the car totally engulfed in flames. Neither of the appellants nor the pickup truck was present at that time. The Lowerys reported the situation to law enforcement authorities who investigated and determined that the car had been doused with a flammable liquid and set afire. Appellants admitted driving the car, a 1988 Ford Escort which belonged to Patterson's wife, to the scene. A detective testified that Mr. and Mrs. Patterson had reported the car stolen two days after the fire occurred. A representative of the automobile lienholder testified that the car was burned without its consent.

This evidence, both direct and circumstantial in nature, was sufficient to prove the essential elements of arson in the second degree as defined by OCGA § 16-7-61. "In our opinion the jury was authorized to conclude beyond a reasonable doubt that the fire was of incendiary origin, and that [appellants were the perpetrators]. 'It is not often possible to make out a case of arson by direct proof establishing the corpus delicti or showing the connection of the defendant with the commission of the crime, for arson is seldom committed except ... when there is small chance that the criminal will be actually observed in the execution of his nefarious purpose ... and therefore circumstances must generally be depended upon not only to show the guilt of the accused, but to establish the corpus delicti.... [Cits.]" Smith v. State, 122 Ga.App. 882, 883-884, 179 S.E.2d 261.

When, as here, an enumeration of error is based upon the overruling of a motion for directed verdict of acquittal, which...