Wilburn v. State
| Decision Date | 07 May 1991 |
| Docket Number | No. A91A0328,A91A0328 |
| Citation | 199 Ga.App. 667,405 S.E.2d 889 |
| Parties | WILBURN v. The STATE. |
| Court | Georgia Court of Appeals |
Mark V. Cloud, Atlanta, for appellant.
Lewis R. Slaton, Dist. Atty., Carl P. Greenberg, Joseph J. Drolet, George J. Robinson, Jr., Asst. Dist. Attys., for appellee.
Appellant Herbert B. Wilburn appeals his judgment of conviction and sentence of aggravated assault. The indictment accused him of shooting Bernard Warren with a dangerous weapon, to-wit, a pistol. Held:
1. Appellant asserts the trial court erred in denying his motion for directed verdict of acquittal. We disagree. As a general rule a motion for directed verdict of acquittal should be granted only where there is no conflict in the evidence and the evidence demands a verdict of acquittal as a matter of law. Taylor v. State, 252 Ga. 125, 127(1), 312 S.E.2d 311. However, the proper test when sufficiency of the evidence is challenged by a motion for directed verdict of acquittal is the "reasonable doubt" test of Jackson v. Virginia, 443 U.S. 307, 99 S.Ct. 2781, 61 L.Ed.2d 560; Humphrey v. State, 252 Ga. 525, 527, 314 S.E.2d 436.
The victim's identification of "Nard," which is the nickname used by appellant, as the man who shot him was admissible as part of the res gestae. The statement and the circumstances surrounding its utterance qualified the statement as a res gestae statement; it clearly was an excited utterance made shortly after the shooting (even prior to the arrival of medical personnel) and while the victim was laboring under the effects of his gunshot wound. Compare Robinson v. State, 197 Ga.App. 600, 601(2), 399 S.E.2d 94; see generally Agnor, Ga.Evidence (2d ed.), §§ 11-32 through 11-34. Further, the prior pretrial statement of the victim wherein he identified appellant as his assailant was admissible as substantive evidence. Compare Gibbons v. State, 248 Ga. 858, 286 S.E.2d 717 with Cuzzort v. State, 254 Ga. 745, 334 S.E.2d 661. Once a declaration is made, both the State and the defense are accorded some measure of protection from the erratic or unpredictable witness in that his prior declaration can be considered substantively where, as here, the witness appears and is subject to cross-examination, notwithstanding variant testimony from the stand. Gibbons, supra 248 Ga. at 864(a), 286 S.E.2d 717.
Review of the transcript in a light most favorable to the jury's verdict reveals ample evidence from which any rational trier of fact could have found beyond a reasonable doubt that appellant was guilty of the offense charged. Jackson v. Virginia, supra.
2. Appellant asserts the trial court erred in limiting cross-examination of a State's witness. Appellant's counsel attempted to examine the victim about a court order granting the victim "use and derivative use immunity." After the victim denied being granted immunity, defense counsel asked the trial judge for the written order, but the trial judge denied having participated in the granting of such. Appellant claims this response improperly limited his right of cross-examination, and that cross-examination if unimpaired would have tended to impeach the victim and to attack his credibility by exposing his motives for testifying.
The trial record includes a copy of an order, signed by the trial judge on the day of trial but filed three days later, containing a grant of use and derivative use immunity to the victim. Pretermitting whether the voluntary denial of the existence of the order by the trial judge resulted in error is the question of whether the issue has been adequately preserved for appellate review. We find it has not.
The trial record contains the following colloquy between defense counsel and trial judge:
Thereafter, appellant abandoned his inquiry as to the existence of a grant of immunity to the victim. Although appellant's counsel obviously attempted to condition the withdrawal of the question upon his being mistaken, in fact, as to the order's existence, a conditional withdrawal of a question is ineffective. A question either is withdrawn or it is not. The effect of appellant's conduct was the withdrawal of his immunity question. Thus, appellant failed to stand his ground and to make a specific objection to the failure to produce the immunity document. At no point did the trial court rule appellant could not continue to explore the immunity issue on cross-examination. No matter how erroneous a ruling or voluntary response of a trial court might be, a litigant cannot submit to the ruling or otherwise acquiesce in the holding or response and then complain of the same on appeal; he must stand his ground. Smith v. State, 192 Ga.App. 768, 771(2), 386 S.E.2d 530, and cases cited therein.
Additionally, counsel's attempted conditional response, rather than stating the basis for belief that the immunity order existed, and perhaps thereby refreshing the trial court's memory of the existence thereof, tended to lull the trial court into believing its recollection was correct as to the nonexistence of such grant. An appellant cannot complain of a result his own procedure or conduct aided in causing. Hawkins v. State, 195 Ga.App. 739(2), 395 S.E.2d 251; compare Horan v. Pirkle, 197 Ga.App. 151, 152, 397 S.E.2d 734 ().
3. Appellant asserts the trial court erred in admitting certain medical records, as these documents were scientific reports not provided within ten days prior to trial as required by OCGA § 17-7-211. The documents were not provided appellant until the day of trial. Examination of the medical records reveals that while most entries therein contained would not qualify as being entries pertaining to scientific reports within the meaning of OCGA § 17-7-211, see, e.g., Conyers v. State, 260 Ga. 506, 508(4), 397 S.E.2d 423, certain of the entries contained within these records would appear to so qualify.
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