Wainwright v. State

• Decision Date: 06 May 1993
• Docket Number: No. A93A0579,A93A0579
• Parties: WAINWRIGHT v. The STATE.
• Court: Georgia Court of Appeals

Page 555

432 S.E.2d 555

208 Ga.App. 777

WAINWRIGHT v. The STATE.

No. A93A0579.

Court of Appeals of Georgia.

May 6, 1993.

Reconsideration Denied June 1, 1993.

Edward N. Davis, Butler, for appellant.

Douglas C. Pullen, Dist. Atty. and J. Mark Shelnutt, Asst. Dist. Atty., for appellee.

BEASLEY, Presiding Judge.

Wainwright was convicted of six counts of aggravated assault with a deadly weapon. OCGA § 16-5-21(a)(2). He was sentenced as a recidivist, under OCGA § 17-10-7(a), to six concurrent twenty-year terms, to serve fourteen years in prison and six years on probation.

The offenses were committed in the early morning hours on February 2, 1992. Wainwright, his friend Stephens, and another friend arrived at a local establishment shortly before closing time. Bobby Ingram and a number of his relatives and friends were there playing pool and drinking. Ingram suggested that his party adjourn to his home. The evidence is in conflict as to whether Wainwright and his two friends were invited as well, but they went with the others to Ingram's trailer and were not prevented from entering. An argument later developed between Stephens and Ingram, and Ingram asked Wainwright and his friends several times to leave.

The evidence about what transpired thereafter sharply conflicted. Wainwright testified that he and his friends were in the process of leaving when the host and a number of the guests, armed with various weapons and household implements, attacked him. The State's witnesses all testified that they had been unarmed and had not provoked Wainwright, and that after Stephens and one of the other guests began scuffling, Wainwright attacked several of those present with a metal level taken from his truck. Several of them suffered severe beatings, and at least one sustained broken limbs.

1. At Wainwright's request, the court charged the jury on self-defense. Wainwright also requested a charge that a person is justified in using force against another to the extent that he reasonably

believes that such force is necessary to defend a third person. Arguing that he assaulted the victims only in defense of Stephens, Wainwright contends the court erred in refusing to give this requested charge.

"A request to charge must be legal, apt, and precisely adjusted to some principle involved in the case, and be authorized by the evidence." (Citations and punctuation omitted.) Jirles v. State, 204 Ga.App. 268(2), 419 S.E.2d 117 (1992). Thus, before such a charge is warranted, there must be legally sufficient evidence in support of the asserted defense. Wells v. State, 186 Ga.App. 62, 63(2), 366 S.E.2d 397 (1988).

Although Wainwright asserts that some of the testimony given by the State's witnesses may be construed as consistent with the theory that he assaulted some of the victims with the level in defense of Stephens, his own testimony on cross-examination contraindicates any such motivation. The prosecutor asked Wainwright specifically: "I want to make sure, you're not saying you hit any of these people because you were defending Steve?" Wainwright answered: "No, sir, I was defending me." This answer was reinforced and repeated several times. Given Wainwright's clear testimony in this regard, the trial court did not err by refusing to give the requested charge. See Smith v. State, 260 Ga. 274, 276-277(5), 393 S.E.2d 229 (1990); Jirles, supra.

2. Wainwright's next two enumerations of error are directed at his sentencing as a recidivist under OCGA § 17-10-7(a) after the State introduced evidence of two prior felony convictions.

(a) Citing Riggins v. Stynchcombe, 231 Ga. 589, 203 S.E.2d 208 (1974), he maintains the court erred in sentencing him pursuant to OCGA § 17-10-7(a) because he was not indicted as a recidivist. ¹

"Under Georgia's old two-step felony trial procedure where sentence was imposed by the same jury which decided guilt, it was required that in order for any prior convictions to be considered in aggravation of punishment, they had to be included in the indictment. [Cit.] Since 1974 when Georgia adopted judge sentencing, OCGA § 17-10-2, it is not required that the prior convictions be included in the indictment but only that the accused receive notice of the state's intention to seek recidivist punishment and of the identity of the prior convictions. [Cits.]" Favors v. State, 182 Ga.App. 179(1), 355 S.E.2d 109 (1987). Of course, if the prior conviction is an element of the crime, it must be alleged and proved. Favors, supra at 180(2), 355 S.E.2d 109. Also, where the nature of the offense is changed from misdemeanor to felony by its repetition, such as felony shoplifting under OCGA § 16- 8-14(b)(1)(C), recidivism must be alleged in the indictment "so that the indictment reflects the maximum punishment to which the defendant can be sentenced." Darty v. State, 188 Ga.App. 447, 448, 373 S.E.2d 389 (1988). This aspect of Riggins, involving the grand jury's role, seems to have been ignored in State v. Hendrixson, 251 Ga. 853, 310 S.E.2d 526 (1984), where an increased maximum was allowed even though the basis was not alleged in the indictment. The notice to defendant required by OCGA § 17-10-2's procedural rule was regarded as sufficient to serve "the only purpose" for including prior convictions in the indictment. Id. at 854-855. Although the Supreme Court did not compare or equate OCGA § 16-13-30(d) with OCGA § 17-10-7, both provisions give direction as to the imposition of punishment under specified aggravated circumstances. However, OCGA § 16-13-30(d) increases the maximum from 15 years to life for the subsequent offense, whereas OCGA § 17-10-7 does not increase the maximum but adds weight in favor of its imposition.

In Wainwright's case, the maximum penalty for one aggravated assault was twenty years. OCGA § 16-5-21(b). That was not changed by OCGA § 17-10-7. The grand jury exposed him to a maximum 20-year sentence, and he was given notice of it by the indictment. OCGA § 17-10-7 merely gives direction as to the imposition of punishment under certain aggravated circumstances. Anderson v. State, 176 Ga.App. 255, 256, 335 S.E.2d 487 (1985). Accord Mitchell v. State, 202 Ga.App. 100, 413 S.E.2d 517 (1991); Rhodes v. State, 200 Ga.App. 193, 199(7), 407 S.E.2d 442 (1991); State v. Freeman, 198 Ga.App. 553, 556-557(3), 402 S.E.2d 529 (1991). See generally Mays v. State, 262 Ga. 90, 91-92(1)(b), 414 S.E.2d 481 (1992). The procedure for doing so, which requires advance notice to defendant, is set out in OCGA § 17-10-2.

Jenkins v. State, 201 Ga.App. 654, 656-657(3), 413 S.E.2d 460 (1991), cited by Wainwright, indicates that the rule is that the indictment must allege the prior offenses, if they are to constitute the basis for enhanced punishment under OCGA § 17-10-7. This dicta in Jenkins is disapproved and will not be followed. Darty is quoted, including its citation of Black (Black v. Caldwell, 231 Ga. 589, 203 S.E.2d 208 (1974)) (cited by appellant as Riggins; see footnote 1), but those two cases differ from Jenkins' situation. He was convicted of burglary, not a crime which carried an increased maximum sentence under unindicted circumstances. Where the prior convictions do no more than subject defendant to a greater risk of the maximum sentence (OCGA § 17-10-7(a)) or even to a certainty of the maximum sentence (OCGA § 17-10-7(b)) for the crime as indicted, the prior convictions need not be alleged in the indictment. Imposition of the maximum sentence has already been authorized by the grand jury's action, and adequate advance notice to defendant is assured by OCGA § 17-10-2(a).

The sentences imposed on Wainwright, 20 years imprisonment on each count, are within the statutory limits for the crimes as indicted, see OCGA § 16-5-21(b), and within the trial court's discretion. The judgment will not be disturbed. Rhodes, supra.

(b) Wainwright also contends he did not receive "unmistakable advance warning" as required by State v. Hendrixson, supra, 251 Ga. at 854, 310 S.E.2d 526, that the State intended to introduce the prior convictions in aggravation of sentence. Prior to the selection of a jury on the day trial commenced, the prosecutor provided Wainwright's coun...