Pullen v. State, 55802
| Decision Date | 13 July 1978 |
| Docket Number | No. 55802,55802 |
| Parties | PULLEN v. The STATE. |
| Court | Georgia Court of Appeals |
Richard R. Kirby, Atlanta, Charles E. Muskett, East Point, for appellant.
Robert E. Keller, Dist. Atty., Clifford A. Sticher, Asst. Dist. Atty., for appellee.
The defendant was charged with the offense of murder. He appeals his conviction of manslaughter. Held :
1. Defendant's enumerations of error 1, 2, 4 and 5 are interrelated and will be discussed together. After defendant had been advised of his Miranda rights he gave a statement to the police which was taped. The tape was lost and defense counsel made such statements when questioning a police officer as: Shortly thereafter, the district attorney announced the missing tapes had been found. He referred to this statement as a "confession." Defense counsel moved for a mistrial. The court denied the motion and instructed the jury that the characterization of the statement as a confession was improper, they should disregard the statement of the district attorney, and the jury would decide "what the statements do and do not import, and whether or not they amount to an incriminatory admission."
Defendant contends the court erred in failing to grant a mistrial, and a new trial, and in instructing the court as he did. Where counsel makes an improper statement in the hearing of the jury it is the duty of the court to rebuke counsel and instruct the jury so as to remove the improper impression, or in his discretion he may order a mistrial. Code § 81-1009; London v. State, 142 Ga.App. 426(1), 236 S.E.2d 158.
Our Supreme Court has held that where the trial court acts immediately to correctly charge the jury to disregard such statement and takes such action as in his judgment will prevent harm to an accused, a new trial will not be granted unless it is clear that his action failed to eliminate from the consideration of the jury such improper remark. Spell v. State, 225 Ga. 705, 709, 171 S.E.2d 285. Where such instructions by the court to the jury "was full," it amounted to a rebuke of counsel. Id. Counts v. Moorehead, 232 Ga. 220(1), 206 S.E.2d 40. The court correctly instructed the jury to disregard and asked them to determine whether the defendant's statement amounted to an incriminatory admission. See Clanton v. State, 137 Ga.App. 376(1), 224 S.E.2d 58. The instruction was full and correct. In any event, we can find no prejudice to a defendant when a court instructs the jury that it is their responsibility to determine whether his statement was incriminating. Further, it is highly probable this alleged error did not contribute to the judgment. Johnson v. State, 238 Ga. 59, 61, 230 S.E.2d 869. These enumerations of error are without merit.
2. Enumeration of error 9 avers error in the denial of defendant's motion for new trial. Enumeration 10 also alleges that the trial court erred in failing to strike 15 subparagraphs of the court's order in denying the motion for new trial. A review of the evidence discloses ample support for the verdict. Thus, the general grounds are without merit.
The special grounds enumerated in defendant's motion before the trial court are substantially the same as the first eight grounds of error enumerated to this court. The trial court's order stated the basis for its denial of the motion. Defendant contends the bases stated are "untrue, scandalous and are not contained in the trial transcript."
Some of the subparagraphs referred to deal with remarks of the defense counsel in opening and closing statements. Those statements were not transcribed. The trial judge signed the first order and made several changes in a subsequent order but did not fully comply with counsel's motion. Defense counsel has offered naught but argument. "In the absence of a transcript, we must assume the evidence supports the judgment of the court." Butler v. Butler, 238 Ga. 198, 232 S.E.2d 246; Robinson v. Robinson, 238 Ga. 323(2), 236 S.E.2d 660. As to those bases predicated upon the transcript, we find there is support for the conclusions and opinions of the court stated in the order. We find no error in a trial court stating the reason for a ruling in his order and counsel has not directed our attention to citation of authority so holding. His reliance upon Patterson v. State, 124 Ga. 408, 52 S.E. 534 and Ga. Power Co. v. Puckett, 181 Ga. 386, 182 S.E. 384, is misplaced. Both cases deal with introduction of new evidence by counsel during argument before a jury. Those holdings would not prevent a trial court from stating the reason for his ruling in court, nor in his order when ruling on a motion for a new trial. Insofar as defendant contends such facts were not in the record, we cannot resolve issues at the appellate level, but "(w)here the correctness of the record is called into question the matter is to be resolved by the trial court." Patterson v. State, 233 Ga. 724, 731, 213 S.E.2d 612, 617. The trial court ruled against the defendant. These enumerations are without merit.
3. The defendant alleges that the trial court erred in failing to charge the jury on "accident" and "involuntary manslaughter" and in charging the jury that the homicide was justifiable under the law when in fact the defendant defended "on the ground of accident and self-defense in that he did not intend to shoot or hurt anyone."
It is the duty of the court to charge the jury as to every material, substantial issue in the case, when it is supported by the evidence. McNeill v. State, 135 Ga.App. 876, 878, 219 S.E.2d 613; Franklin v. State,136 Ga.App. 47(2), 220 S.E.2d 60. 1 Reid's Branson Instructions to Juries 171, § 53(1). "It is the province of the court to determine whether there is foundation in the evidence for any particular instruction . . ." 1 Blashfield's Instructions to Juries 191, § 86. Absent abuse of discretion, this court will not interfere with the trial court's finding.
The instructions of the court should cover contentions made and argued before the jury if they are supported by the evidence. 1 Reid's Branson, Instructions to Juries 172, § 53(1). However, where defendant's theories of his defense are made in the opening and closing argument of defendant's counsel and are not recorded we must rely upon the trial judge and will assume he performed his duty properly and the evidence supported the giving of the instruction. In the past this court has referred to defendant's requests for instructions (State v. Frazier, 141 Ga.App. 501, 502, 233 S.E.2d 868) to resolve enumerations of error on appeal. Thus, we can refer to the record as well as the transcript when resolving issues regarding enumerations of error relating to instructions of the court.
In the instant record the trial court's order contains the reasons for his denial of a new trial. One of his findings was that the defense counsel informed the jury in opening argument that the defendant was "justified in killing the deceased based upon his contention of self-defense," and defense counsel's "closing argument related exclusively to justification through self-defense . . ."
An accused should have the jury instructed on his principal theory of defense when it is supported by the evidence. And it is error for the court to fail to instruct on the sole theory of defense, even without a request. Pollard v. State, 236 Ga. 587, 224 S.E.2d 420. However, as argued on appeal, "accident" was not defendant's sole or even his principal theory of defense. It was justification through self-defense.
There is no evidence that defendant...
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