Richards v. State

• Decision Date: 07 November 1979
• Docket Number: No. 58258,58258
• Citation: 262 S.E.2d 469,152 Ga.App. 201
• Parties: RICHARDS v. The STATE.
• Court: Georgia Court of Appeals

Page 469

262 S.E.2d 469

152 Ga.App. 201

RICHARDS v. The STATE.

No. 58258.

Court of Appeals of Georgia.

Argued July 3, 1979.

Decided Oct. 15, 1979.

Rehearing Denied Nov. 7, 1979.

Howard A. McGlasson, Jr., Savannah, for appellant.

Andrew J. Ryan, III, Dist. Atty., Robert M. Hitch, III, Asst. Dist. Atty., for appellee.

SHULMAN, Judge.

Defendant was found guilty of the offenses of voluntary manslaughter and simple assault. We affirm.

1. Appellant enumerates as error several of the court's rulings sustaining objections to certain questions posed by defense counsel. These enumerations are not meritorious.

A. The court correctly sustained the state's objection to a question propounded by the defense, which question posed a hypothetical to a non-expert witness. Since the question was not predicated upon any testimony then before the court, the court's exclusion of the question was warranted. See Bryant v. State, 197 Ga. 641(6), 30 S.E.2d 259.

B. Likewise, the court properly precluded defense counsel from questioning a state witness as to her opinion of defendant's intent. See Lester v. State, 75 Ga.App. 42(8), 42 S.E.2d 141.

C. We find no merit in appellant's contention that the court erred in sustaining the state's objection to the following "question": "You'd like your husband to see the children. He's done all the things that are necessary in relationship to that . . ." Even assuming defense counsel's statement constituted a question to the witness (the defendant's estranged wife/prosecutrix), since there was no relevant connection between the testimony sought to be elicited and the issues in the case (at the time the "question" was propounded) (see, e. g., McGill v. State, 226 Ga. 802(3), 177 S.E.2d 675), the court correctly sustained the state's objection.

2. Contrary to appellant's contentions, we find no evidence that the state intended to prejudice or confuse the jury in conducting its cross examination of the defendant. Rather it was the prosecutor's intention to clarify what appeared to be discrepancies between the statement made by the defendant at the time of his arrest and his testimony on the stand. Under the circumstances, the court was within its authority in overruling defendant's objection to the state's cross examination of the witness. See, e. g., Wanzer v. State, 232 Ga. 523(5), 207 S.E.2d 466.

3. Appellant asserts reversible error on what he terms the court's restriction of the scope of his examination of a witness. We find no error.

It was within the court's discretion to refuse to allow defense counsel to pose leading questions to his own witness. In the absence of a showing of resulting injury, we refuse to find an abuse of discretion in the court's ruling. See Adkins v. State, 134 Ga.App. 507(1), 215 S.E.2d 270; Mason v. State, 18 Ga.App. 224(2), 89 S.E. 185; Durham v. State, 70 Ga. 264(13).

4. Appellant alleges error on the court's refusal to charge, upon request, that once the defendant had raised the issue of self-defense, it was incumbent upon the state to prove beyond a reasonable doubt the absence of justification. Defendant claims that the court's failure to so charge impermissibly placed the burden of persuasion on the defendant. We cannot agree.

The court did not instruct the jury either explicitly or implicitly that the burden of proving self-defense or justification rested with the defendant. The court correctly instructed the jury that it was incumbent upon the state to prove every essential element of the offenses charged; and that the state had the burden of establishing defendant's guilt beyond a reasonable doubt. The charge further instructed that a conviction was only authorized if the jury believed beyond a reasonable doubt that the killing was without justification; that if there was a reasonable doubt as to justification, acquittal was in order. The charge, read as a whole, does not impermissibly place the burden of persuasion on the defendant. See, e. g., Rubiano v. State, 147 Ga.App. 142(1), 248 S.E.2d 207.

Since the court effectively covered the principles involved in defendant's request to charge no. 2 in its instructions on the burden of proof, we find no error in the court's refusal to charge defendant's request. See Trask v. State, 132 Ga.App. 645(13), 208 S.E.2d 591; Carnes v. State, 115 Ga.App. 387(6), 154 S.E.2d 781; Sullens v. State, 239 Ga. 766(4), 238 S.E.2d 864.

5. The court charged defendant's request to charge no. 5; hence, this enumeration of error presents nothing for review.

6. Appellant maintains that the court's undue emphasis on malice in its charge prejudiced the defendant. Since defendant was charged with murder, the court properly instructed the jury on the definitions of malice, express and implied. Moreover, since "(t)he trial judge by his instructions eliminated malice to convict for manslaughter and (since the defendant was acquitted of the murder charge and convicted of the lesser offense of voluntary manslaughter) the defendant has no cause for complaint regarding the instructions on presumption of malice in order to convict for murder." Witt v. State, 124 Ga.App. 535(2), 184 S.E.2d 517.

7. Assuming defendant properly raised the issue of "newly discovered evidence" in his motion for new trial, the defendant failed to satisfy the criteria necessary for the grant of an extraordinary motion for new trial.

"In order to be entitled to a new trial on this ground, appellant must satisfy the court: '(1) that the evidence has come to his knowledge since the trial; (2) that it was not owing to the want of due diligence that he did not...