Wisdom v. State

• Decision Date: 02 June 1975
• Docket Number: No. 29574,29574
• Citation: Wisdom v. State, 217 S.E.2d 244, 234 Ga. 650 (Ga. 1975)
• Parties: Billy Mack WISDOM v. The STATE.
• Court: Georgia Supreme Court

Page 244

217 S.E.2d 244

234 Ga. 650

Billy Mack WISDOM v. The STATE.

No. 29574.

Supreme Court of Georgia.

June 2, 1975.

Rehearing Denied June 25, 1975.

White & Jewett, C. Lawrence Jewett, Jr., Nicholas F. Maniscalco, Atlanta, for appellant.

Arthur K. Bolton, Atty. Gen., Lewis R. Slaton, Dist. Atty., R. David Petersen, Jack Mallard, Joseph J. Drolet, Asst. Dist. Attys., Atlanta, for appellee.

INGRAM, Justice.

This case is on appeal from a judgment of convictions of one count of armed robbery and three counts of burglary in Fulton Superior Court for which appellant was sentenced to serve a total of 21 years imprisonment. Our review of the case leads us to affirmance of the convictions.

The jury was authorized to believe from the evidence at trial that during the early morning hours of March 11, 1974, the appellant led four co-conspirators, Cecil Allen McGuffey, William Samuel Wild, Jewel Loman and 'Trick Baby' Patterson, on a burglary spree of the Medical Arts Building in Atlanta. Appellant and his associates first burglarized a dentist's office in the building where appellant 'cracked' a safe, next burglarized a pharmacy where appellant cracked another safe, and subsequently pistol whipped and robbed a night watchman at gunpoint after putting a pillow cover over his face. The night watchman was then forced downstairs to the basement area of the building, where his hands were tied behind his back, after which a third office was burglarized.

Money, stamps, dangerous drugs, narcotics, a pistol, personal property, gold and checks were taken during the course of the burglaries. Appellant and the others involved were later arrested in an apartment pursuant to a search warrant, and pills, tablets, drugs, syringes, capsules, vials and weapons were found on the premises. Those present, including appellant, were arrested. At appellant's trial, his co-conspirators, William Samuel Wild and Cecil Allen McGuffey, testified for the state and implicated appellant as their leader.

In 'Point I' of the argument and citation of authority in appellant's brief, it is urged that '(t)he court erred in overruling the motion of defendant for discovery and inspection and failed to conduct certain independent hearings outside the jury.' Appellant also argues that the 'record nowise indicates any compliance with Brady v. Maryland, 373 U.S. 83, 83 S.Ct. 1194, 10 L.Ed.2d 215 (1963)', and the trial court failed to comply with Williams v. Dutton, 400 F.2d 797 (5th Cir.).

The transcript does not authorize a review of this issue as it is now presented on appeal. The motion made at the commencement of the trial in appellant's behalf was to obtain access to any statements made by appellant's co-indictees in order to determine the voluntariness of the statements. The prosecution represented to the trial court it had no incriminating statement made by appellant and this representation was unchallenged by appellant and accepted as truth by the trial court. The court then overruled appellant's motion regarding any statements of the co-indictees on the ground that appellant had not demonstrated any basis for attempting to raise an issue as to the voluntariness of statements made by the co-indictees.

Appellant now argues for the first time in this appeal not that the statements were used against him at the trial but that they were relevant to the credibility of the co-indictees who testified against appellant. We can understand the argument that these statements might have been helpful to appellant in cross examining these witnesses at the trial. However, the trial court was not asked to rule on this issue and we are not authorized to make a de novo ruling on it. We hold that appellant's failure to assert this issue for consideration in the trial court forecloses review of the issue on appeal. Roberts v. State, 228 Ga. 298, 299(1), 185 S.E.2d 385 (1971); Fulton v. State, 127 Ga.App. 711, 712(4), 194 S.E.2d 615 (1972).

We note that even if this issue had been passed on by the trial court and was properly before this court for consideration, appellant would still have the burden of showing that the denial of these statements to him so impaired his defense that he was denied a fair trial within the meaning of the Brady rule. See United States v. White, 450 F.2d 264 (5th Cir., 1970), and Hicks v. State, 232 Ga. 393, 396, 207 S.E.2d 30. Appellant has not carried this burden on appeal.

Appellant also urges as error the testimony of Woodrow Chapman, a night watchman, that he 'had a brain concussion.' This answer was in response to the question, 'Do you remember what your condition was at that time?' Appellant's argument is that Chapman was not qualified as an expert and could not properly give testimony about his medical condition. Appellant relies on Patterson v. State, 86 Ga. 70, 73, 12 S.E. 174. No actual objection to this answer was made at the trial. The transcript does disclose that defense counsel made the following observation after the witness' answer: 'Your Honor, may we note-I don't know that this gentleman is qualified to say whether or not he had a brain concussion.' However, even if this observation is considered as a proper and timely objection, the alleged error would be harmless. Whether this witness had a brain concussion was not essential to the issues submitted to the jury, and the admission of this testimony was harmless to defendant's case.

Objections were made at the trial to the testimony of the daughter of Woodrow Chapman about his condition and her opinion as to whether his condition was permanent. However, the daughter was shown to be a medical assistant and she was properly permitted to testify only as to her observation and examination of her father's physical condition. See, Richmond County Hospital Authority v. Haynes, 121 Ga.App. 537, 543, 174 S.E.2d 364. No error appears.

Appellant also complains that the trial court erred in permitting the prosecutor to question the state's witness, William Samuel Wild, a co-indictee, about an alleged jail fight and the witness' release on bond. Appellant argues this testimony was prejudicial to him because there was no evidence to show that he caused or contributed to the fight. The transcript reveals that the witness was asked on cross examination by defense counsel about the witness' release from jail on bond. Thus, it was not error for the trial court to permit the prosecutor to go into the matter on redirect examination of the witness. See, Aycock v. State, 62 Ga.App. 812, 813(2),10 S.E.2d 84. The same is true of appellant's complaint about the witness' testimony regarding the alleged jail fight. Defense counsel asked the witness on cross examination: 'Did Billy Wisdom hit you in jail?' The witness answered, 'No, sir.' On redirect by the state, the witness was asked if Billy Wisdom signaled some men in the jail to beat him up. We also note that the witness never answers this question because defense counsel interrupted with the statement that the prosecutor was cross-examining his own witness. The trial court agreed and no answer was given. We find no error here. In addition, we find no reversible error in the trial court's subsequent refusal to grant a mistrial the next day because of the unanswered question which had been effectively ruled out by the trial court at the close of the preceding day's testimony. The case relied upon by appellant, Collins v. State, 86 Ga.App. 157, 71 S.E.2d 99 does not require a different result.

Appellant also asserts as error the overruling of his motion to suppress certain evidence seized by the authorities, under a search warrant, from the residence of James F. (Frankie) Simuel. Several legal deficiencies in the warrant are urged in support of this contention. However, appellant has not shown in the trial court or in this court any possessory interest in the premises searched or any legitimate expectation of privacy as to the property seized in the search. See, Brinks v. State, 232 Ga. 13(3), 205 S.E.2d 247, where it was held that the defendant has no standing to complain of an alleged warrantless search of a stolen automobile and that the admission of evidence obtained from the automobile was not reversible error. See also, McCorquodale v. State, 233 Ga. 369, 374(4), 211 S.E.2d 577.

It is also argued that drugs seized in the police raid of Frankie Simuel's apartment were erroneously admitted into evidence as there was no showing by the state that the drugs were relevant to the prosecution's case or were ever in the personal possession of appellant. There was evidence that these drugs were the same drugs taken by appellant and his co-conspirators during the burglary of the pharmacy in the Medical Arts Building. Consequently, the seized drugs were relevant and material to the indictment count for the burglary of the pharmacy. Herring v. State, 232 Ga. 683(2), 208 S.E.2d 490 (1974). The testimony adduced at trial indicates that the drugs seized at Simuel's apartment were not found on the person of appellant. However, they were found in his immediate presence. Under this evidence, the jury was authorized to find the drugs were in the constructive possession of appellant. Lee v. State, 126 Ga.App. 38(2), 189 S.E.2d 872. Appellant also argues there was a break in the chain of custody of the drugs seized at Simuel's apartment. We do not agree as the testimony of Detective Waddell, Detective Collins, Detective Dickerson and Mr. Panter, of the State Crime Laboratory, established a chain without hiatus of the drugs from seizure to courtroom. We find no error in these contentions.

In three enumerations of error, it is contended the trial court erred in allowing the prosecution to cross-examine its own witness, Donna Colbert, because of entrapment. Prior to trial, the witness gave the state a written statement which the state relied upon in calling her as a witness. It was shown that her testimony was inconsistent with the prior...