Rozier v. State, 47199

• Decision Date: 18 May 1972
• Docket Number: No. 3,No. 47199,47199,3
• Citation: 190 S.E.2d 627,126 Ga.App. 336
• Parties: Lloyd E. ROZIER v. The STATE
• Court: Georgia Court of Appeals

Page 627

190 S.E.2d 627

126 Ga.App. 336

Lloyd E. ROZIER v. The STATE.

No. 47199.

Court of Appeals of Georgia, Division No. 3.

May 18, 1972.

Syllabus by the Court

1. Where counsel elicits testimony unfavorable to his client, he will not be heard to object to it, no matter how prejudicial it may be, if it is a direct and pertinent response to the question propounded.

2. Imposition of a harsher sentence by a jury on a retrial after an appeal does not violate defendant's constitutional rights.

Edwin M. Saginar, Atlanta, for appellant.

Lewis R. Slaton, Dist. Atty., Richard E. Hicks, Joel M. Feldman, Morris H. Rosenberg, Atlanta, for appellee.

CLARK, Judge.

Appellant was tried and convicted of criminal attempt to commit burglary.

This is the second appearance of the case in this court. The first trial, which also resulted in a conviction for criminal attempt, was reversed for new trial in Rozier v. State, 124 Ga.App. 481, 184 S.E.2d 203.

1. The first enumeration of error, which asserts error in the denial of a motion for mistrial, is based on testimony elicited by counsel for the defendant during cross examination of a witness for the State, to wit: 'Q. Let me rephrase it then. You don't know what type of car we are dealing with? A. I am pretty well sure what it was, yes. Q. You just stated a moment ago you weren't sure. A. I didn't state a moment ago. I said I thought it was a Chevrolet and changed it to a Plymouth later on. Q. When was later on? A. During the last trial.'

The mistrial motion argued that the jury was thereby apprised that this was not the first time defendant had been tried for this offense. The court denied the motion, stating 'You asked the question and he answered it.' The argument is made that such knowledge by the jury does damage to the presumption of innocence to which a criminal defendant is entitled until negated by legally admissible evidence.

There was no error. Where counsel elicits testimony unfavorable to his client, he will not be heard to object to it, no matter how prejudicial it may be, if it is a direct and pertinent presponse to the question propounded. Thomas v. State, 213 Ga. 237, 239, 98 S.E.2d 548; Potts v. State, 86 Ga.App. 779(3), 72 S.E.2d 553; Scott v. State, 57 Ga.App. 187(1), 194 S.E. 844. Furthermore, the mere fact there has been a prior trial is not per se objectionable.

2. The remaining enumerations of error deal with a defendant having received a longer sentence upon the second trial than had been the result of the first. At the first trial the jury's verdict was for 10 years, the maximum permitted on this crime, but the court had entered a judgment thereon whereby he was to serve seven years computed from date of arrest, three years being suspended subject to good behavior. During the sentencing portion of the second trial able defense counsel who handled the first appeal, second trial and this appeal under appointment for an indigent, called the court's attention to the previous sentence and relying upon his interpretation of the U.S. Supreme Court's case of North Carolina v. Pearce, 395 U.S. 711, 89 S.Ct. 2072, 23 L.Ed.2d 656, requested the jury to be instructed that the sentence could not exceed seven years. The judge declined. The jury returned a verdict for eight years imprisonment which was made the judgment of the court. ¹

Two years prior to the Pearce case our Supreme Court had ruled in Salisbury v. Grimes, 223 Ga. 776, 158 S.E.2d 412 that it was not a denial of the Fourteenth Amendment equal protection requirement for a jury to impose a harsher sentence following a successful appeal and award of a new trial. That view was followed by the Court of Appeals for the Fifth Circuit when relief was sought in the Federal jurisdiction. Salisbury v. Grimes, 406 F.2d 50.

After the Pearce case our Supreme Court was called upon in Chaffin v. State, 227 Ga. 327(1), 180 S.E.2d 741, to pass on this question. It pointed out that the Pearce case held 'that the guarantee against double jeopardy does not restrict the length...