Ponder v. State

• Decision Date: 23 January 1990
• Docket Number: No. A89A2111,A89A2111
• Citation: Ponder v. State, 390 S.E.2d 869, 194 Ga.App. 446 (Ga. App. 1990)
• Parties: PONDER v. STATE.
• Court: Georgia Court of Appeals

Page 869

390 S.E.2d 869

194 Ga.App. 446

PONDER v.STATE.

No. A89A2111.

Court of Appeals of Georgia.

Jan. 23, 1990.

Rehearing Denied Feb. 9, 1990.

Certiorari Granted May 17, 1990.

Glen A. Cheney, Reidsville, for appellant.

Dupont K. Cheney, Dist. Atty., Mark S. Daniel, Asst. Dist. Atty., for appellee.

CARLEY, Chief Judge.

After a jury trial, appellant was found guilty of one count of aggravated assault on a peace officer and two counts of possession of a deadly weapon by an inmate.Pursuant to the grant of leave to file an out-of-time appeal, appellant appeals from the judgments of conviction and sentences that were entered on the jury's guilty verdicts.

1.Appellant enumerates the general grounds as to the aggravated assault count and one of the possession of a deadly weapon counts.

Officers testified that they heard appellant threaten to kill the victim and that they saw appellant take the knife from between two mattresses and stab him.The mere fact that these events occurred in appellant's cell, which had just been searched, does not in any way show that the officers' testimony is insufficient to support the convictions.There was no evidence that the search was so thorough that the knife could not have been overlooked."The evidence was sufficient for a rational trier of fact to find proof of [appellant's] guilt of aggravated assault [and possession of a deadly weapon] beyond a reasonable doubt."Weaver v. State, 176 Ga.App. 639, 640(1b), 337 S.E.2d 420(1985).

2.Appellant raised no objection at trial to that portion of the State's closing argument which he enumerates as error on appeal." 'The failure to object below constitutes a waiver, and the appellant cannot now complain on appeal.'[Cit.]"Sams v. State, 258 Ga. 158, 160(3), 366 S.E.2d 290(1988).

3.Appellant enumerates the court's denial of his motion for change of venue as erroneous.

" 'In order to prevail on a motion for change of venue pursuant to OCGA § 17-7-150(a), a defendant must show "(1) that the setting of the trial was inherently prejudicial or (2) that the jury selection process showed actual prejudice to a degree that rendered a fair trial impossible."(Cit.)"(T)he empanelling of fair and impartial jurors, as demonstrated on voir dire, makes it particularly difficult to show that the setting of the trial was inherently prejudicial."(Cit.) ... Moreover, a trial court's finding that a defendant can receive a fair trial in the county in which the crime was committed will be upheld unless manifestly erroneous.(Cit.)'[Cit.]"Donalson v. State, 192 Ga.App. 37, 39(5), 383 S.E.2d 588(1989)." 'The test adopted by [the Supreme Court of Georgia] in determining whether or not a change of venue should be granted is whether the jurors summoned to try the case have formed fixed opinions as to guilt or innocence....'[Cits.]"Waters v. State, 248 Ga. 355, 361(1), 283 S.E.2d 238(1981)."The record shows that the 12 trial jurors [indicated] on examination that they had no opinion as to the guilt or innocence of the appellant....That is the bottom line in all change of venue motions.We find no abuse of discretion in denying the [motion for] change of venue."Florence v. State, 243 Ga. 738, 740(2), 256 S.E.2d 467(1979).

4.On voir dire, appellant's counsel sought to ask the prospective jurors whether they believed that "the work of the guard at the Georgia State Prison ... has been made overly difficult because of considerations that must be given inmates?"The trial court refused to permit this question to be answered and appellant enumerates this ruling as erroneous.

"While a defendant in a criminal case has an absolute right to have prospective jurors questioned as to those matters specified in OCGA § 15-12-133, control of voir dire examination is within the sound legal discretion of the trial court, and the appellate courts should not interfere unless it is shown to have been manifestly abused.[Cits.]"Lawton v. State, 191 Ga.App. 116, 118, 381 S.E.2d 106(1989)."The Supreme Court has 'repeatedly upheld the discretion of the trial court to restrict voir dire to questioning dealing directly with the specific case, and to prohibit overly broad questions.'[Cits.]"Williams v. State, 165 Ga.App. 69, 70(2), 299 S.E.2d 402(1983).Moreover, questions calling for an opinion by a juror on matters of law are improper.SeeWilliams v. State, supra at 70(2), 299 S.E.2d 402;Hunter v. State, 170 Ga.App. 356(1), 317 S.E.2d 332(1984);Petty v. State, 179 Ga.App. 767(1), 347 S.E.2d 663(1986)."The [prohibited] question is not phrased or designed so as to elicit or reveal any actual bias or prejudice against [appellant] ... [cit.] or any interest in the cause.[Cits.]"Bennett v. State, 153 Ga.App. 21, 26(III), 264 S.E.2d 516(1980).The trial court did not err in refusing to allow the question to be answered.

5.During trial, appellant was restrained by handcuffs and leg irons and, during his testimony, a guard stood beside the witness stand.The trial court's allowance of these security precautions is enumerated as error." '[I]t is not necessarily an error of constitutional dimensions for an accused to appear in court wearing restraining devices or accompanied by uniformed guards.(Cits.)It is well settled that when, in the discretion of the trial judge, the use of restraining devices or the presence of uniformed guards is necessary for preventing disruptive or dangerous behavior by the accused or for securing the safety of those in the courtroom, or of the general public, the decision to implement such measures is within the court's discretion.[Cits.]'[Cit.]"Barefoot v. State, 175 Ga.App. 131(3), 333 S.E.2d 13(1985).There was evidence presented that appellant had stated that he would "tear up" the courtroom when his handcuffs were removed and that he had previously threatened to kill people.The trial court instructed the jury not to draw any adverse inference from the mere fact that appellant was shackled and we find no error in the trial court's allowance of what it deemed to be necessary security precautions.CompareMcKenzey v. State, 138 Ga.App. 88, 90(1b), 225 S.E.2d 512(1976).

6.Appellant enumerates as error the trial court's failure, without request, to require the State to give racially neutral reasons for the use of peremptory challenges of black prospective jurors.SeeBatson v. Kentucky, 476 U.S. 79, 106 S.Ct. 1712, 90 L.Ed.2d 69(1986).

This issue was never raised in the trial court."The failure of [appellant] timely to object [to the composition of the jury] is a valid state procedural bar to any complaint he may have under Batson.[Cit.]"Ford v. State, 257 Ga. 661, 664(8d), 362 S.E.2d 764(1987).See alsoChilds v. State, 257 Ga. 243, 257(21), 357 S.E.2d 48(1987).Moreover, even if the issue had been raised in the trial court, this enumeration would still have no merit."Since the percentage of blacks on the jury was, as a result of the use of peremptory strikes, higher than that of the panel from which they were chosen, appellant did not show a prima facie case of discrimination.[Cit.]"Harris v. State, 186 Ga.App. 756, 757(2), 368 S.E.2d 527(1988).See alsoAldridge v. State, 258 Ga. 75, 76(4), 365 S.E.2d 111(1988);Barnett v. State, 191 Ga.App. 552, 554(1), 382 S.E.2d 620(1989);Stewart v. State, 190 Ga.App. 162(1), 378 S.E.2d 387(1989).

7.Over appellant's relevancy objection, the trial court admitted certain testimony concerning the usual manner of dealing with inmates in possession of a weapon.This ruling is enumerated as error.

Evidence " 'is relevant if it relates to the questions being tried by the jury, either directly or indirectly, tends to illustrate or explain the issue, or aids the jury in arriving at the truth.(Cit.)'[Cit.]"Rosenthal v. Hudson, 183 Ga.App. 712, 715(9), 360 S.E.2d 15(1987).See alsoKalish v. King Cabinet Co., 140 Ga.App. 345, 346(1), 232 S.E.2d 86(1976).The challenged testimony was relevant to explain why the officers entered appellant's cell." 'Evidence which otherwise may be inadmissible in some instances...