Seawright v. State

• Decision Date: 06 November 1984
• Docket Number: No. 68790,68790
• Parties: SEAWRIGHT et al. v. The STATE.
• Court: Georgia Court of Appeals

Page 704

323 S.E.2d 704

172 Ga.App. 517

SEAWRIGHT et al. v. The STATE.

No. 68790.

Court of Appeals of Georgia.

Nov. 6, 1984.

William C. Puckett, Jr., Decatur, for appellants.

Robert E. Wilson, Dist. Atty., Michael M. Sheffield, Asst. Dist. Atty., for appellee.

BENHAM, Judge.

Clarence Seawright, Steven Vonlinsowe, and Tony Seawright were tried together for rape, aggravated sodomy, armed robbery, and kidnapping. They were all convicted of simple battery on the rape charge and of robbery by intimidation on the armed robbery charges, and acquitted of the kidnapping and aggravated sodomy charges. Tony Seawright's conviction was affirmed in Seawright v. State, 170 Ga.App. 58, 316 S.E.2d 168 (1984). Appointed counsel for Clarence Seawright and Steven Vonlinsowe filed a brief pursuant to Anders v. California, 386 U.S. 738, 87 S.Ct 1396, 18 L.Ed.2d 493 (1967), in which he certified that he had examined the record and was of the opinion that an appeal would be frivolous. Seawright has made no response to that brief, but Vonlinsowe has filed a document in this court in which he sets forth alleged errors committed at trial and which we will treat as a brief and enumeration of errors.

1. A thorough review of the record of this case reveals sufficient evidence to authorize a rational jury to find both appellants guilty of robbery by intimidation and simple battery beyond a reasonable doubt. Jackson v. Virginia, 443 U.S. 307, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979). Accordingly, Vonlinsowe's contention that the evidence is not sufficient is without merit. As to Seawright, we agree with his counsel that an appeal would be frivolous and affirm his conviction.

2. Vonlinsowe complains that the statements of his co-defendants were improperly admitted into evidence and used against him, that one of the statements was not voluntary, and that the other statement was not reduced to writing even though it was made several months prior to trial. Whether or not there was any error in the admission of the statements, and we are inclined to find that there was not, there was no harm to Vonlinsowe: neither statement was at all inculpatory of any of the defendants and both were consistent with Vonlinsowe's own testimony. "It is an old and sound rule that error to be reversible must be harmful. [Cit.]" Sell v. State, 156 Ga.App. 333(5), 274 S.E.2d 723 (1980).

3. The trial court's instruction on flight is cited by Volinsowe as error on the ground that there was no evidence of flight to support such an instruction. The record shows that the victim testified that appellants departed from the scene of the alleged rape with haste. The arresting officer testified that one of the three fled when confronted by police officers and was not arrested until some time later. That evidence was enough to authorize a charge on flight. Storey v. State, 162 Ga.App. 763(3), 292 S.E.2d 483 (1982); Moon v. State, 154 Ga.App. 312(5), 268 S.E.2d 366 (1980).

4. Vonlinsowe's complaint that the trial court's jury charge on intoxication was not supported by the evidence is also without merit: Vonlinsowe testified that he and another of the defendants had consumed a fifth of liquor and some beer prior to the events which led to their arrest. The jury charge was authorized. Moore v. State, 158 Ga.App. 579(2), 281 S.E.2d 322 (1981).

5. In the document filed in this court, Vonlinsowe complains that the trial court did not give an Allen charge (dynamite charge) (Allen v. United States, 164 U.S. 492, 17 S.Ct. 154, 41 L.Ed. 528 (1896)) when the jury failed to reach a verdict on all the counts of the indictment. The record shows that the court did give such a charge after the jury failed to reach agreement as to all the counts. If Vonlinsowe intended to assert that the trial court should not have given the charge, we find no error since the jury had deliberated for some time without...