Wilburn v. State
Wilburn v. State
Opinion of the Court
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 ver-fcliet of acquittal as a matter of law. Taylor v. State, 252 Ga. 125, 127 (1) (312 SE2d 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 SC 2781, 61 LE2d 560); Humphrey v. State, 252 Ga. 525, 527 (314 SE2d 436).
The victim’s identification of “Nard,” which is the nickname sed by appellant, as the man who shot him was admissible as part of be res gestae. The statement and the circumstances surrounding its tterance qualified the statement as a res gestae statement; it clearly
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 j use immunity.” After the victim denied being granted immunity, de-, fense 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 mo-| tives for testifying.
The trial record includes a copy of an order, signed by the trialj 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 tria| judge resulted in error is the question of whether the issue has beei adequately preserved for appellate review. We find it has not.
The trial record contains the following colloquy between defens( counsel and trial judge: “[DEFENSE COUNSEL]: Judge, do yoi have the order granting immunity in this? THE COURT: I hav<| none. This court has not participated in such a thing. [DEFENS1 COUNSEL]: Judge, if I’m mistaken about that, then I withdraw th| question.”
Thereafter, appellant abandoned his inquiry as to the existencj of a grant of immunity to the victim. Although appellant’s counsc obviously attempted to condition the withdrawal of the question upoj his being mistaken, in fact, as to the order’s existence, a condition/ withdrawal of a question is ineffective. A question either is withdraw!
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 SE2d 251); compare Horan v. Pirkle, 197 Ga. App. 151, 152 (397 SE2d 734) (acquiescence by silence in the trial court’s evaluation of the evidence received).
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 SE2d 423), certain of the entries contained within these records would appear to so qualify.
Appellant argues for the first time on appeal that descriptions in the medical records of the victim’s injuries and treatment were highly ¡inflammatory and prejudicial. “ ‘On appeal only issues properly raised before the trial court will be considered.’ ” Rigenstrup v. State, 197 Ga. App. 176, 179 (2) (398 SE2d 25). This issue has not been preserved for appeal.
I Appellant’s reliance on Wester v. State, 260 Ga. 228 (391 SE2d 765) is misplaced, as Wester involved the State’s failure to provide [defendant with a copy of the scientific report while this case involves la situation where a copy was provided albeit on the day of trial.
I Exclusionary rules are not favored in the law, as they detract Irom the search for truth. Only when the prosecutor fails altogether Ko furnish a written scientific report, under OCGA § 17-7-211, does the exclusionary rule apply; when a written scientific report is fur-liished late, the appropriate remedy “perhaps” is to grant a continuance or recess upon timely request by the defendant. This matter, as |vell as the length of time granted, rests with the trial judge in the
Judgment affirmed.
Concurring Opinion
concurring specially.
I concur in the result and I concur fully in Divisions 1 and 3.| However, I cannot concur fully in all that is said in Division 2.1 thin! counsel did preserve his objection to the court’s erroneous restrictior of his cross-examination regarding the immunity issue. However, anj error was harmless. The record shows counsel for Wilburn and for the State clearly established the victim’s reluctance to testify against Wil-J burn, his friend. Whether the testimony resulted specifically from use immunity or not, the jury was given evidence indicating the victim’s bias in the matter. The error committed by the trial court in failing tq remember the grant of immunity and to permit questioning on it thuj did not contribute to the verdict.
Reference
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