Williams v. State

• Decision Date: 10 September 1992
• Docket Number: No. A92A0812,A92A0812
• Parties: WILLIAMS v. The STATE.
• Court: Georgia Court of Appeals

Page 309

422 S.E.2d 309

205 Ga.App. 445

WILLIAMS v. The STATE.

No. A92A0812.

Court of Appeals of Georgia.

Sept. 10, 1992.

Ralph L. Phillips, Dawson, for appellant.

Charles M. Ferguson, Dist. Atty., for appellee.

BIRDSONG, Presiding Judge.

Eddie Lawrence Williams was indicted and tried for two counts of burglary; he was convicted of Count 1 but found not guilty of Count 2. He appeals his judgment of conviction and sentence. Held:

1. The indictment for Count 1 burglary pertinently avers that appellant, on March 16, 1991, did "then and there unlawfully and without authority and with intent to commit a theft therein entered the building known and used as Lillie Cooper School, 1051 Augusta St., Dawson, of Terrell County, Georgia, the owner thereof." The indictment does not aver that any specified property was stolen, and if it had, it would be surplusage. Davis v. State, 139 Ga.App. 105(3), 227 S.E.2d 900. In any event, the State is not be required to establish actual theft of any particular property to support the burglary conviction. The theft of any article is unnecessary to the completed offense of burglary. Davis, supra.

On appeal the evidence must be viewed in the light most favorable to support the verdict, and appellant no longer enjoys a presumption of innocence; moreover, an appellate court determines evidence sufficiency and does not weigh the evidence or determine witness credibility. Grant v. State, 195 Ga.App. 463(1), 393 S.E.2d 737. 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 burglary offense of which he was convicted. Jackson v. Virginia, 443 U.S. 307, 99 S.Ct. 2781, 61 L.Ed.2d 560.

2. Appellant claims the trial court erred in refusing to allow the jury to rehear certain evidence. In support of this contention, appellant cites this court to Byrd v. State, 237 Ga. 781, 783, 229 S.E.2d 631. This case is factually distinguishable from the case at bar. We find for reasons hereinafter discussed that appellant has failed to establish affirmatively by the record that the trial court abused its discretion in refusing to allow the jury to rehear certain evidence as enumerated.

The record reflects that after commencing deliberation the jury informed the trial judge they had "a question about the initial call ... that was made by ... David King." No request to review any particular testimony was made in regard to this particular question. The trial court in essence responded by informing the jury that as to questions of fact they needed to resolve the matter among themselves. The trial court then addressed the prosecutor and defense counsel by name. Appellant's counsel, in apparent anticipation that the trial court would inquire whether there was any objection to the explanation given, interrupted the trial court and said, "No, sir, we don't ... the facts speak for themselves as in the record for the jury." Thus, appellant acquiesced in the trial court's response to the jury regarding the call of David King. See Harmon v. State, 259 Ga. 444(3), 383 S.E.2d 874; Riley v. State, 180 Ga.App. 409, 411, 349 S.E.2d 274. Further, the conduct of appellant's counsel in interrupting the trial court and injecting his comment that the facts of record speak for themselves to the jury, aided in causing the failure, if any, of the trial court in further pursuing this issue. One cannot complain of trial procedure utilized by the trial court which his own trial tactics or conduct procured or aided in causing. See Wilburn v. State, 199 Ga.App. 667(2), 405 S.E.2d 889; Hawkins v. State, 195 Ga.App. 739(2), 395 S.E.2d 251. Further, the trial judge did not refuse to replay any particular testimony for the jury regarding the call; rather, he merely refused to select what testimony should be replayed. Compare Magouirk v. State, 158 Ga.App. 517, 519(3), 281 S.E.2d 283.

The jury also requested to hear the tape of appellant Williams' testimony again. The trial court noted that there exists some question whether rehearing the testimony would place too much emphasis thereon to the jury. Thereafter, the trial court denied the request for an immediate rehearing of the testimony, stating: "Now if you can ... you all go in and continue ... your deliberations and then we will ... pursue that point out here...." Appellant entered no objection on the record to the procedure used by the trial court in disposing of this matter.

" 'Reopening evidence is in the sound discretion of the trial court and will not be disturbed when no abuse of discretion is shown.' " Smith v. State, 153 Ga.App. 862, 864(4), 267 S.E.2d 289; see also Pickelsimer v. Traditional Builders, 183 Ga.App. 709, 711(4), 359 S.E.2d 719. Likewise, the trial court has discretion whether to replay testimony for the jury. Of course, jury requests should not be arbitrarily or capriciously denied. Appellant argues that "it is clear from the evidence of misidentification of the stolen items that this testimony being heard the second time would be vital in the decision making process of the jury, therefore the [trial court] erred in not allowing this testimony to be replayed." However, as found in Division 1, a finding by the jury of theft is not necessary to support a burglary conviction. Pretermitting any issue of implied waiver (compare Magouirk, supra), appellant has failed affirmatively to show by the record that the trial court abused its discretion in refusing to allow the immediate replay of the evidence following the jury's request.

3. Appellant, citing United States v. Amaya, 509 F.2d 8 (5th Cir.) and Burroughs v. United States, 365 F.2d 431 (10th Cir.), asserts that the trial court erred by giving a "time fuse" charge to the jury.

At approximately 5:36 p.m., the trial court, without objection thereto by appellant, sua sponte supplied the following procedural instruction to the jury after being informed that the jury was making a little progress but was not very close to a verdict: "Well, what I'm going to do is I'm...