Wilson v. State

• Decision Date: 14 February 1978
• Docket Number: No. 2,No. 54909,54909,2
• Citation: 145 Ga.App. 315,244 S.E.2d 355
• Parties: Charles W. WILSON v. The STATE
• Court: Georgia Court of Appeals

Page 355

244 S.E.2d 355

145 Ga.App. 315

Charles W. WILSON v. The STATE.

No. 54909.

Court of Appeals of Georgia,Division No. 2.

Feb. 14, 1978.

Rehearing Denied March 16, 1978.

Cochran, Camp & Snipes, Gregory A. Griffin, Smyrna, for appellant.

Thomas J. Charron, Dist. Atty., Adele P. Grubbs, Asst. Dist. Atty., Marietta, for appellee.

QUILLIAN, Presiding Judge.

On the evening of September 24-25, 1976, Mr. Billy Ray Bice, was the only employee present in the Seven-Eleven store on Old Concord Road, Smyrna, Georgia. He testified that the defendant came into the store at approximately 12:30 p. m. and bought one beer and left. Defendant returned at 2:30 a. m. and went to the beer cooler. Mr. Bice told him state law forbid him selling beer after 2:00 a. m. The defendant left. He returned at 3:30 a. m., and picked up an 8-pack of beer. Mr. Bice again told him he could not sell him the beer. Approximately five minutes later, the defendant returned, walked behind the register and placed a knife to the side of Mr. Bice and took approximately $122.00 from the register.

On October 24, 1976, around 3:00 a. m., the defendant and three other persons were in the parking lot of the same store. They were stopped by a police officer and Mr. Bice came out of the store and identified the defendant as the person who robbed him on September 25.

Mr. Bice was given a photographic lineup test. There were seven photos, including two pictures of the defendant, and Mr. Bice identified both of them.

Another state witness was present at the time the robber first came into the store and he also returned after the robbery had occurred. His description of the robber differed from that of Mr. Bice and he could not identify the defendant as the robber. The officer who took the description of the robber from Mr. Bice also differed with Mr. Bice's testimony given at the trial as to the description given him immediately after the robbery. Although Mr. Bice thought the robber was around five feet, eight inches tall, and the other witness thought he was only five feet, six inches tall, the defendant testified that he was "six foot, maybe six-one." There were other minor discrepancies between Mr. Bice's testimony and those of the other state's witnesses.

The defendant testified that he was playing pool on the evening of the robbery with Richard Hendricks, but he left with Hendricks shortly before closing time 2:00 a. m., and went home. Hendricks testified that he and the defendant "hung around for about an hour and a half" after "the pool table closed" at 12:00 and then he took the defendant home. The defendant's mother testified he arrived home "about fifteen until 2:00" a. m., and then went to bed.

After the jury commenced their deliberations they reopened and requested the testimony of Mr. Bice and the other state's witness who was in the Seven-Eleven store that evening be read. The court complied and the jury then returned a verdict of guilty. Defendant appeals his conviction. Held :

1. Defendant contends the verdict and the judgment are contrary to the evidence, without evidence to support it, and "decidedly and strongly against the weight of the evidence."

"Appellate courts will pass not on the weight, but on the sufficiency of the evidence to sustain a verdict. Strong v. State, 232 Ga. 294, 206 S.E.2d 461 (1974). If there is any evidence to support the findings of the jury, and no errors of law, the verdict should not be disturbed. Proctor v. State, 235 Ga. 720, 221 S.E.2d 556 (1975)." Gaines v. State, 239 Ga. 98, 100, 236 S.E.2d 55, 57. While there is evidence in the record which contradicts, in part, the state's principal witness, and evidence of alibi, "since the jury in criminal cases is the arbiter of all conflicts, and having resolved such issues against the defendant, and there being evidence to support the verdict, the court did not err in rendering final judgment on the verdict." Walker v. State, 130 Ga.App. 860, 865, 205 S.E.2d 49, 55. On appeal, in passing on the sufficiency of the evidence, we are to afford evidence that view which is most favorable to the appellee, "for every presumption and every inference is in favor of the verdict." Peluso v. State, 139 Ga.App. 433, 434, 228 S.E.2d 395, 396. The general grounds are without merit.

2. The court did not err in permitting the investigating officer to remain in the courtroom and testify after other state's witnesses. The trial judge specifically recognized and exercised his "discretion" in this matter in permitting the investigator to remain and assist the prosecutor. There was no error. McNeal v. State, 228 Ga. 633, 636, 187 S.E.2d 271; Jarrell v. State, 234 Ga. 410, 421, 216 S.E.2d 258.

3. Only one person identified the defendant as the perpetrator of this offense. However, the trial court charged the jury that ". . . a witness has made the contention that they saw and recognized the defendant as a participant . . ." (Emphasis supplied.) Defendant alleges this to be error as it was "misleading and confusing." This court has held "(f)or a slip of the tongue to be harmless error, the true meaning must be so palpable as to be clearly understood by the jury." Eastern Dehydrating Co. v. Brown, 112 Ga.App. 349, 350, 145 S.E.2d 274, 276. If the slip is inadvertent and not prejudical it will not require a new trial. Childers v. State, 130 Ga.App. 555(5), 203 S.E.2d 874. In Baker v. State, 137 Ga.App. 33(4), 222 S.E.2d 865 where the judge inadvertently stated "One" rather than "Two," this court found no error, and we find none here. The court stated that "a" witness said "they" saw the defendant at the scene. This in itself shows the context in which it was used was apparent and clearly palpable to the jury. Further, the jury heard the evidence. They were aware that only one witness testified that he recognized the defendant. We find no prejudice to the defendant arising from incorrect usage of a pronoun which should have been obvious to the jury.

4. After the jury retired to deliberate, they were called back for the evening meal. The court asked: "without saying how you are divided, numerically how do you stand? I mean, which way, but just tell me how you are divided?" The foreman replied: "More for guilty than not." After further deliberation that evening the court asked if there had been any substantial change "in the last hour or so?" When informed that there had been, the court asked: "How do you stand numerically?" The foreman stated, "Nine to three." The court excused the jurors for the night and directed they be taken to a motel. The foreman of the jury was a paraplegic and he said "his physical condition require(d) personal attention, as a paraplegic and cannot be given except in his home." The judge announced in open court that he, "(i)n the presence of the Defendant . . . asked his counsel and the Defendant and each of them agree to excuse (the foreman) . . . and proceed with the verdict of eleven jurors." The state also agreed to excusal of the juror.

Defendant alleges the trial court erred "in dismissing the foreman of the jury from further deliberation . . . without making a determination that the defendant had knowingly agreed to the same . . ." Further, the court is alleged to have erred by inquiring "as to the standing of the jury" and after "having been informed by the jury that it was divided eight to three in favor of a guilty verdict" charging the jury regarding the "desirability of reaching a verdict."

( a) Attorneys have authority to bind their clients by any agreement in relation to that cause which has been "made in writing . . ." Code Ann. § 9-605 (Ga.L.1957, p. 495). However, "(t)here is no law or rule which requires agreements between counsel, when made in open court, to be in writing." Langston v. Maryland Cas. Co., 43 Ga.App. 854(1), 160 S.E. 823. Here, the statement was made in open court before the defendant and his counsel that "each of them agree" to excusing the juror. The defendant would be estopped to assert this ground as error when the consent agreement was announced by the judge in his presence, absent evidence of "fraud, collusion, accident, mistake or violation of express direction." See Wilson v. N. E. Isaacson of Ga., 139 Ga.App. 582, 583, 229 S.E.2d 29, 30. There is no allegation of, and there definitely is no evidence of, any such exception.

( b) The question posed by the judge to the jury was: "Without saying how you are divided, numerically how do you stand? I mean, which way, but just tell me how you are divided?" The answer was: "More for guilty than not." The judge attempted to ascertain the numerical division of the jurors without them divulging whether they were for guilt or innocence. The question, as stated, was confusing and it drew a response the foreman should not have revealed. Was this prejudicial error to the defendant? We find it was not.

In Ball v. State, 9 Ga.App. 162, 163, 70 S.E. 888, 889, this court stated: "We think that it is a dangerous practice, and one of very doubtful propriety from a legal standpoint, for the judge to ask the jury in a criminal case how it stands; and, where the evidence of guilt is weak, the practice becomes pernicious; it is presumptively hurtful when, on information that the jurors stand eleven to one, the trial judge even remotely suggests to the one juror that he ought to surrender his conviction to that of the majority. A juror is usually so responsive to any suggestion made by the judge as to his duty . . . that the judge should be careful not to say anything that could possibly be construed by any member of the jury as indicating that it would be proper for him to yield his personal views of the evidence and shift his individual responsibility to the majority."

However, in Flahive v. State, 10 Ga.App. 401(2), 73 S.E. 536, we held that it was not error for the trial judge to inquire of the jury how they stood if he does not intimate or express an opinion on the...