Prater v. State
| Decision Date | 30 May 1984 |
| Docket Number | No. 67707,67707 |
| Citation | 171 Ga.App. 122,318 S.E.2d 816 |
| Court | Georgia Court of Appeals |
| Parties | PRATER v. The STATE. |
W. O'Neal Dettmering, Jr., Douglasville, for appellant.
Frank C. Winn, Dist. Atty., Richard S. Thompson, Asst. Dist. Atty., for appellee.
Rufus Eugene Prater, Jr. brings this appeal from his conviction of voluntary manslaughter. Held:
1. Appellant's first enumeration cites as error the trial court's admitting testimony in regard to the results of a scientific test performed by the state crime lab on the pistol used to kill the victim. On December 2, 1982 appellant had requested discovery of any such test results pursuant to OCGA § 17-7-211. The test was requested by the prosecution on or about December 10, 1982; was conducted on December 13; and the results thereof were reported to the prosecution on the morning of December 14. The prosecution in turn notified appellant of the test results in writing two or three hours thereafter. Trial began that afternoon. There being no evidence of bad faith on the part of the prosecution vis-a-vis the test on the pistol, the trial court did not err under the circumstances in this case in admitting evidence of the test results. See Billings v. State, 161 Ga.App. 500(3), 288 S.E.2d 622 (1982).
2. Appellant's second enumeration assigns error to the trial court's denial of his motion to have an expert of his choice inspect, examine and test the subject pistol. This motion was filed on the morning of trial, apparently in response to appellant's receipt of the results of the test conducted by the state crime lab. The test was conducted to determine if the pistol could accidentally fire; the test results were that it "could not be fired in any way other than pulling the trigger."
"A criminal defendant on trial for his liberty is entitled on motion timely made to have an expert of his choosing, bound by appropriate safeguards imposed by the court, examine critical evidence whose nature is subject to varying expert opinion." (Emphasis supplied.) Sabel v. State, 248 Ga. 10, 17-8, 282 S.E.2d 61, cert. den., Sabel v. Georgia, 454 U.S. 973, 102 S.Ct. 524, 70 L.Ed.2d 393 (1981). Appellant argues that no need existed for an independent examination of the pistol until the prosecution had it examined. This argument, however, provides no excuse for the untimeliness of appellant's motion where the record here discloses ample time before trial for such testing if appellant had wished to pursue the matter. Appellant's defense at trial was essentially that the pistol had fired accidentally. It is thus not unreasonable to assume that if testing the pistol were indeed an integral part of his defense, such testing would have been requested well in advance of trial. Pretermitting the question of whether the pistol in this case was "critical evidence whose nature is subject to varying expert opinion," we find that the facts in this case show no error in the trial court's denial of appellant's motion as untimely. See Patterson v. State, 238 Ga. 204, 232 S.E.2d 233, cert. den., Patterson v. Georgia, 431 U.S. 970, 97 S.Ct. 2932, 53 L.Ed.2d 1067 rehg. den., 434 U.S. 882, 98 S.Ct. 248, 54 L.Ed.2d 167 (1977); Brooks v. State, 141 Ga.App. 725(5), 234 S.E.2d 541 (1977). Compare Gilliland v. State, 142 Ga.App. 374, 235 S.E.2d 780 (1977).
3. Appellant's third enumeration of error challenges the trial court's refusal to give the following request to charge: "Ladies and Gentlemen of the Jury, I charge you that pointing a gun at another is not a felony." We find no error for several reasons. First, this request to charge is an incomplete statement of OCGA § 16-11-102 which makes it a misdemeanor to "intentionally and without legal justification" aim or point a gun or pistol at another. "A request for charge to the jury is properly refused when it embraces only a part of the law applicable to the point involved." Dillon v. Sills, 54 Ga.App. 299(4), 187 S.E. 725 (1936); see Mahomet v. State, 151 Ga.App. 462(3), 260 S.E.2d 363 (1979), cert. den. sub nom. Cuevas v. Georgia, 445 U.S. 943, 100 S.Ct. 1338, 63 L.Ed.2d 776 (1980). Moreover, pointing a pistol at another may, in some circumstances, be a felony, that of aggravated assault. See, e.g., Riddle v. State, 145 Ga.App. 328(2), 243 S.E.2d 607 (1978), overruled on other grounds, Adsitt v. State, 248 Ga. 237, 282 S.E.2d 305 (1981). Furthermore, the evidence presented at trial established either (a) appellant was simply handling the pistol, a lawful act, when the pistol accidentally fired, or (b) appellant pointed the pistol at the victim, turned his...
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Simmons v. State
...and the trial court properly refused the request. See generally Green v. State, 124 Ga. 343(8), 52 S.E. 431 (1905); Prater v. State, 171 Ga.App. 122(3), 318 S.E.2d 816 (1984). We find no error for any reason Judgments affirmed. BENHAM, J., concurs. BANKE, C.J., concurs in the judgment only. ...
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...and the refusal to give it was not error. Williams v. State, 180 Ga.App. 854, 855, 350 S.E.2d 837 (1986). Prater v. State, 171 Ga.App. 122, 124(3), 318 S.E.2d 816 (1984). The third requested charge was based on OCGA § 17-4-20, dealing with authority to arrest. As drafted, it dealt with an i......
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Lukach v. State
...have been made in analogous cases in other jurisdictions. See United States v. Harper, 505 F.2d 924 (5th Cir.1975); Prater v. State, 171 Ga.App. 122, 318 S.E.2d 816 (1984); see also "Right of Accused in State Courts To Have Expert Inspect, Examine Or Test Physical Evidence In Possession of ......