Reed v. State, A92A0590
| Decision Date | 09 July 1992 |
| Docket Number | No. A92A0590,A92A0590 |
| Citation | 205 Ga.App. 209,422 S.E.2d 15 |
| Parties | REED v. The STATE. |
| Court | Georgia Court of Appeals |
Virgil L. Brown & Associates, Virgil L. Brown, Bentley C. Adams III, Zebulon, for appellant.
John H. Cranford, Sol., for appellee.
Appellant was convicted by a jury of attempting to elude an officer in violation of OCGA § 40-6-395 and obstruction of an officer in violation of OCGA § 16-10-24(a). He appeals from the judgment of conviction and sentence entered on the verdict.
The evidence adduced at trial reflects that while on patrol, Officer Donnie Payne received a lookout call for a red Corvette which was running cars off the road as it travelled south on Interstate 85. Officer Payne headed towards I-85 travelling on Highway 29 when a red Corvette passed him going in the opposite direction. The Corvette crossed the centerline of the highway. Officer Payne turned his car around and pursued the Corvette with his siren and blue lights on, signalling for appellant, the driver of the red Corvette, to pull over. The patrol car was directly behind the Corvette, but appellant did not pull over and continued to swerve back and forth across the centerline. Appellant turned off the highway onto a dirt road and continued driving until he came to a stop in front of a small camper. Appellant got out of the Corvette and walked towards Officer Payne cursing and asking why he was being stopped. Officer Payne noticed that appellant appeared to be staggering, slurred his speech and smelled of alcohol. While Officer Payne checked appellant's license and insurance, he received a call over his radio. The officer stepped to his patrol car to answer the call, and appellant began walking away from Officer Payne. Officer Payne told appellant to stop and come back to the car, but appellant ignored him and kept walking away. Appellant went inside the camper, turned out the lights and remained inside. Officer Payne called for backup and subsequently obtained a warrant for appellant's arrest. When Officer Payne returned to the camper to execute the warrant, appellant was not in the camper. The following day, appellant called Officer Payne and was informed of the charges against him. Appellant subsequently appeared in court with an attorney, pled not guilty and requested a jury trial. Appellant failed to appear in court for his scheduled trial date, and the court issued a bench warrant for his arrest. Appellant's attorney contacted the court to request that the bench warrant be lifted and that he be allowed to file motions on appellant's behalf. Appellant's attorney filed discovery motions as well as a motion to suppress. The trial court heard the motions and set the case down for a jury trial. On the date of trial, appellant appeared in court with a different attorney, who filed a demurrer and motion to quash each of the accusations. The trial court noted that the motions should have been filed upon arraignment of appellant but proceeded to hear appellant's motions and subsequently denied them.
1. Appellant contends that the trial court erred in denying his motion to quash the accusations. Appellant first argues that the accusation charging him with obstruction of an officer was defective in that it did not sufficiently apprise appellant of the acts of which he was accused. The accusation charged appellant with "knowingly and wilfully [obstructing] officer Donnie Payne in the lawful discharge of his official duties as a law enforcement officer in violation of [OCGA § ] 16-10-24." " State v. Howell, 194 Ga.App. 594, 595, 391 S.E.2d 415 (1990). The accusation described the offense in terms of the statute and stated that the act was unlawfully committed and contrary to the laws of the State. We find no error with the trial court's denial of appellant's motion to quash the accusation.
The accusation charging appellant with attempting to elude stated that appellant "did wilfully fail and refuse to bring his vehicle to a stop or did otherwise flee or attempt to elude a pursuing police vehicle or police officer when given a visual or an audible signal to bring the vehicle to a stop in violation of [OCGA § ] 40-6-395." Appellant argues that the accusation was defective because the word "or" charged appellant with alternative acts and failed to allege specifically how appellant committed the acts. Prior to trial, the State amended the accusation in open court pursuant to OCGA § 17-7-71(f) by substituting the word "and" for the word "or." We find that the accusation as amended was sufficient to apprise appellant of the charges against him and the trial court did not err in denying appellant's motion to quash the accusations. Furthermore, appellant did not request a continuance and has failed to show how his ability to present a defense was impeded by the amendment. See Melton v. State, 174 Ga.App. 461(2), 330 S.E.2d 398 (1985).
2. Appellant next contends that the trial court erred in denying his motion to dismiss the accusations and plea in bar on the grounds of double jeopardy. Appellant argues that the accusation charging him with attempting to elude was amended after jury selection; therefore, jeopardy had attached and the State was barred from prosecuting appellant under the amended accusation. The record reflects that the solicitor amended the accusation in open court prior to the selection of the jury and that appellant acknowledged that the amendment was being made. However, appellant argues that he was not actually served with the amended accusation until after the jury was selected. Inasmuch as the actual amendment to the accusation was made prior to the selection of the jury and in the presence of appellant, we find no merit to appellant's argument.
3. Appellant next contends that the trial court erred in proceeding with the trial after appellant filed a notice of appeal from the denial of his motion for plea in bar. After listening to appellant's argument on the plea in bar based on double jeopardy, the trial court referred to appellant's argument as "absurd" and made a handwritten note at the bottom of appellant's motion denying the same. Several minutes later...
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