Wilson v. State

• Decision Date: 20 March 1981
• Docket Number: Nos. 61365,61384,s. 61365
• Citation: 279 S.E.2d 345,158 Ga.App. 174
• Parties: WILSON v. The STATE. STANDRIDGE v. The STATE.
• Court: Georgia Court of Appeals

Page 345

279 S.E.2d 345

158 Ga.App. 174

WILSON v. The STATE.

STANDRIDGE v. The STATE.

Nos. 61365, 61384.

Court of Appeals of Georgia.

March 20, 1981.

Rehearing Denied April 2, 1981.

Certiorari Denied May 14, 1981.

Virgil C. Spence, Marietta, for appellant in case no. 61365.

Harris P. Baskin, Jr., Marietta, for appellant in case no. 61384.

Thomas J. Charron, Dist. Atty., James F. Morris, Asst. Dist. Atty., for appellee.

SHULMAN, Presiding Judge.

Defendants Wilson and Standridge were convicted of the offenses of burglary and armed robbery. Defendant Wilson was also charged with and convicted of the offense of theft by taking. On appeal, we affirm all convictions.

1. Defendants assert error in the trial court's failure to grant a continuance so that defense counsel could prepare pre-trial motions. Defendants contend that the court's refusal to grant a continuance rendered counsel's assistance at trial ineffective, in essence denying defendants their Sixth Amendment right to counsel.

The grant or denial of a continuance is within the sound discretion of the trial court and will not be disturbed on appeal absent a showing of an abuse of discretion. Plemons v. State, 155 Ga.App. 447(5C), 270 S.E.2d 836. Defense counsel argued that, although he had been retained weeks before trial, he had not prepared pre-trial motions because, until a few days prior to the scheduled trial date, defendants were planning to enter pleas of guilty. Pretermitting the validity of defendants' excuse for defense counsel's lack of preparation, it is more important to note that defendants have failed to demonstrate how additional time would have benefited them or how the lack of time harmed them. See Davis v. State, 240 Ga. 763(1), 243 S.E.2d 12. For that reason, we find no error in the trial court's denial of appellants' motion for continuance.

2. Defendants complain of the admission into evidence of a .25 caliber semi-automatic pistol, clip and cartridges.

The detective who ultimately made the arrest of the defendants saw them at the "Tara Lounge." The detective testified that when he entered the bar and made eye contact with defendant Wilson, Wilson leaned over and reached for his left ankle. Defendant Wilson was searched upon his arrest, and the pistol, clip and cartridges in question were found in his left sock. Defendants argue that the pistol was not connected to the offenses charged and, for that reason, was erroneously admitted into evidence.

We agree with the state's contention that the evidence was properly admitted as a circumstance of appellants' arrest. Defendant-Wilson's conduct in reaching toward what was found to be a hidden pistol is evidence (though not conclusive) of his attempted resistance or flight. Therefore, it was relevant and admissible as an incident of defendants' arrest. See, e. g., Newman v. State, 239 Ga. 329, 236 S.E.2d 673. Compare Martin v. State, 143 Ga.App. 875, 240 S.E.2d 231.

3. Defendants argue that the state's failure to introduce or present positive identification of a shotgun as the weapon used during the armed robbery forbids its admission into evidence.

The prosecutrix testified that she had bought a shotgun that was exactly like the gun shown to her at trial, that defendant used that weapon during the course of the robbery, and that she saw the defendants leave her house carrying the gun. In short, there was testimony that a shotgun was used during the commission of the offense and that the gun shown at trial appeared to be that gun. The trial court properly admitted the weapon in evidence. Ruffin v. State, 243 Ga. 95(5), 252 S.E.2d 472.

4. The testimony regarding defendant-Standridge's arrest on other warrants was offered outside the presence of the jury and could not have prejudiced the jury.

5. Defendants enumerate as error the trial court's denial of their motion for mistrial based upon the state's allegedly inflammatory and improper argument to the jury. Our review of the argument does not support appellants' contentions that it was improper. The court justifiably refused defendants' request for a mistrial.

6. We find without merit appellant-Wilson's argument that the state improperly influenced and prejudiced the jury against defendant by welcoming and greeting the jury. Defense counsel subsequently engaged in a full and complete voir dire of the jury panel and made no complaint in regard to the impartiality of the selected jury panel. Defendants' contention that the jury was prejudiced is not borne out by the record and transcript and does not present cause for reversal.

7. Defendant-Wilson argues that, despite counsel's request, the trial court failed to apply the rule of sequestration to a witness for the state, a police detective. Defendant makes no showing as to how the officer's activities or movements in and out of the courtroom prejudiced the presentation of his case, but merely argues that the officer's movements did not "aid" the defendant.

Application of the rule of sequestration is within the sound discretion of the trial court. In the case before us, the assistant district attorney stated his need for the services of the witness during the trial. That being so, in the absence of the defendant's showing that the court's...