Baxter v. State

335 S.E.2d 607, 176 Ga. App. 154, 1985 Ga. App. LEXIS 2857
CourtCourt of Appeals of Georgia
DecidedSeptember 3, 1985
Docket70605
StatusPublished
Cited by7 cases

This text of 335 S.E.2d 607 (Baxter v. State) is published on Counsel Stack Legal Research, covering Court of Appeals of Georgia primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Baxter v. State, 335 S.E.2d 607, 176 Ga. App. 154, 1985 Ga. App. LEXIS 2857 (Ga. Ct. App. 1985).

Opinion

Banke, Chief Judge.

Ruben Cleveland Baxter appeals his convictions of two counts of arson in the first degree.

*155 The appellant operated a restaurant and lounge known as “Trader Bick’s” in a shopping center owned by University Plaza, Inc. On October 19, 1982, a fire damaged both the premises and contents of Trader Bick’s, resulting in the appellant’s receipt of more than $70,000 in fire insurance benefits. After the premises were repaired and the contents replaced, he reopened the facility under the new name of “Smuggler’s Cove.” On April 10, 1983, another fire caused substantial damage to Smuggler’s Cove, resulting in the payment of another $24,000 in fire insurance benefits. As the result of an investigation conducted by both state and federal agencies, evidence was discovered which tended to show that this second fire had been ignited by a light bulb attached to a drop cord, which had been wrapped with paper and placed near a flammable liquid. Mr. Donald Ranew, a co-indictee, testified that he had worked for the appellant at, both clubs and that, at the latter’s direction, he had started both fires by wrapping paper around a 200-watt light bulb attached to an electrical cord and pouring charcoal lighter fluid on the floor. According to Ranew, the reason given by the appellant for burning the club was to obtain insurance proceeds for its expansion. Held:

1. Appellant enumerates as error the refusal of the trial judge to grant his motion for recusal, or alternatively, to grant an evidentiary hearing on the motion. The motion alleged the judge was biased against appellant’s counsel due to events which had transpired in a prior, unrelated case. No affidavit was submitted in support of the motion; however, it was verified by the attorney.

Alleged bias against a party’s attorney, rather than the party himself, is not, per se, a ground for recusal. See OCGA § 15-1-8; Mann v. State, 154 Ga. App. 677 (1) (269 SE2d 863) (1980). As none of the allegations of bias in this case pertained to any impermissible interest by the judge in the outcome of the case, nor to any conduct manifested by the judge during the trial, they establish no basis for his disqualification. Accordingly, the trial court did not err in denying the motion to recuse, without referring the motion to another judge for a hearing. Accord Jones v. State, 247 Ga. 268 (4) (275 SE2d 67) (1981); Mann v. State, supra.

2. Appellant contends that both counts of the indictment were fatally defective in that the owner of the burned premises was not alleged to be University Plaza, Inc., but Talmadge Ramsey, the president of the corporation and owner of 50 percent of its shares. “As long as the defendant is informed of the charges against him so that he may present his defense at trial and not be surprised by the evidence against him as well as protect against another prosecution for the same offense, the indictment is sufficient. [Cits.]” Hopper v. Hampton, 244 Ga. 361, 362 (260 SE2d 73) (1979). Under the circumstances, appellant was sufficiently informed of the ownership and *156 identity of the property which was the subject of the alleged arsons and was adequately protected against further prosecution for the offenses. Accordingly, there was no fatal variance between the indictments and the evidence presented at trial. Accord Byers v. State, 236 Ga. 599 (1) (225 SE2d 26) (1976); Bradshaw v. State, 162 Ga. App. 750 (7) (293 SE2d 360) (1982).

3. Appellant contends that the trial court erred in allowing audio and video tapes of conversations between himself and Ranew to be played to the jury, without requiring a proper foundation to be established. The conversations in question were recorded by federal investigators with Ranew’s consent and cooperation. Appellant lodged no objection whatsoever to the introduction of the tapes or to their being played to the jury. “An objection not raised at trial is waived. [Cit.]” Hardeman v. State, 252 Ga. 286, 288 (313 SE2d 95) (1984).

4. Appellant contends that the trial court erred in allowing the jury unrestricted access to certain “unverified” transcripts of the taped conversations. The federal agent who videotaped the two conversations testified that the transcripts had been typed from handwritten transcriptions which he had prepared personally while listening to the tapes and that he had verified the accuracy of the typed versions by reading them while again listening to the tapes. Copies of the typed transcripts were provided to each juror when the tapes were played. Although appellant objected to them, he stated no basis for the objection.

The mere statement of an objection without specifying a reason for the inadmissibility of proffered evidence is insufficient to raise a question on appeal as to the impropriety of admitting the evidence. Accord Peters v. State, 148 Ga. App. 850 (3) (253 SE2d 214) (1979); Hendrix v. State, 125 Ga. App. 327 (1) (187 SE2d 557) (1972). Moreover, because the agent who prepared the transcripts verified their accuracy, a proper foundation was established for their use by the jury during the playing of the tapes. See Burke v. State, 248 Ga. 124 (2) (281 SE2d 607) (1981).

5. Although appellant contends on appeal that the jury was improperly permitted access to the transcripts during its deliberations, this objection was not raised before the trial court, and there is nothing in the record to support the assertion. When the transcripts were provided to the jurors during the playing of the tapes, the trial court instructed them that they were not to be considered evidence but were merely aids to assist them in hearing the tapes. Furthermore, upon tendering the transcripts into evidence, the state’s attorney stated that they “would not go out with the jury.” Absent any support in the record for the appellant’s contention that the transcripts were, in fact, provided to the jurors during their deliberations, this enumeration of error presents nothing for review.

*157 6. Appellant contends that the trial court erred in allowing the state to cross-examine him regarding his having received insurance proceeds resulting from the destruction by fire of two motor vehicles, one in 1977 and one in 1979. No objection was raised in the trial court with respect to the latter incident, thereby precluding its consideration on appeal. See Hardeman v. State, 252 Ga. 286, supra. Moreover, there was no contention by the state that these fires were the result of criminal activity on the part of appellant or anyone else; hence, the questioning cannot be considered an improper attempt to introduce evidence of prior offenses. Accord State v. Roberts, 250 Ga. 414 (297 SE2d 274) (1982). In any event, “evidence that [appellant] was experienced in filing fire loss claims tends to sufficiently bolster the theory of an insurance fraud motive to be relevant to the State’s case.” Id. “[E]vidence showing intent, motive, plan, scheme and bent of mind is admissible although such evidence may also place in issue the character of the defendant. [Cits.]” Causey v.

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Bluebook (online)
335 S.E.2d 607, 176 Ga. App. 154, 1985 Ga. App. LEXIS 2857, Counsel Stack Legal Research, https://law.counselstack.com/opinion/baxter-v-state-gactapp-1985.