Conway v. State

Court of Appeals of Georgia

Conway v. State

359 S.E.2d 438, 183 Ga. App. 573, 1987 Ga. App. LEXIS 2724

CourtCourt of Appeals of Georgia

DecidedJuly 7, 1987

Docket74270

StatusPublished

Cited by14 cases

This text of 359 S.E.2d 438 (Conway 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.

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Conway v. State, 359 S.E.2d 438, 183 Ga. App. 573, 1987 Ga. App. LEXIS 2724 (Ga. Ct. App. 1987).

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Opinions

McMurray, Presiding Judge.

Defendant was convicted of the offenses of armed robbery, kidnapping and aggravated assault (with intent to rob). He appeals. Held:

1. In Evitts v. Lucey, 469 U. S. 387 (105 SC 830, 83 LE2d 821), the United States Supreme Court made it clear that a criminal defendant is entitled to effective assistance of counsel in the pursuit of his appeal rights. In so doing, the high court disapproved of the dismissal of a criminal defendant’s first appeal as of right. See DeBroux v. State, 176 Ga. App. 81 (335 SE2d 170). Following Evitts v. Lucey, supra, we have endeavored to make every effort to decide criminal appeals on the merits. Id. But see Knox v. State, 180 Ga. App. 564 (349 SE2d 753). We think the merits should be considered in this case.

The trial judge determined that “good and sufficient reason” was shown by defendant to allow an out-of-time appeal. In the absence of any record demonstrating the absence of an appropriate showing by defendant, “we must assume the trial court’s grant of the out-of-time [574]*574appeal was proper. Smith v. State, 160 Ga. App. 26 (285 SE2d 749) (1981).” Moore v. State, 176 Ga. App. 882, 883 (339 SE2d 271). Such an assumption is most appropriate where, as here, the state does not object to the out-of-time appeal.

2. Defendant complains that the trial court erroneously permitted a fingerprint expert to discuss fingerprinting techniques. He asserts the evidence was irrelevant and immaterial and that it should have been ruled out upon timely objection. We disagree. We cannot say the trial court abused its discretion by admitting the evidence. “The Georgia rule favors admission of any relevant evidence no matter how slight its probative value. Agnor’s Ga. Evidence, 165, § 10-2. Further, admission of irrelevant evidence is not ground for reversal unless the defendant can show how the evidence was prejudicial to him. Defendant has shown no prejudice.” Wireman v. State, 163 Ga. App. 439, 442 (295 SE2d 530).

3. Defendant contends the trial court erred by refusing to give his requested charge on impeachment. He also contends it was error to refuse to give a requested charge that a prior inconsistent statement is admissible as substantive evidence. See Gibbons v. State, 248 Ga. 858 (286 SE2d 717). These contentions are without merit. Defendant has failed to point to any impeachment in the transcript and we find none. Attempts may have been made to impeach one of the victims; but those attempts failed. The “time, place . . . and circumstances attending the former statements [were not] called to [the victim’s] mind with as much certainty as possible.” OCGA § 24-9-83. See also Smith v. State, 171 Ga. App. 758, 762 (321 SE2d 213). Moreover, with regard to the requested Gibbons v. State, supra, charge, we fail to see how defendant was prejudiced by the refusal of the trial court to give it. “Absent instructions to. the contrary, the jury surely regarded substantively all the evidence presented to it.” Ford v. State, 255 Ga. 81, 87 (335 SE2d 567).

4. The evidence presented by the prosecution was sufficient to enable any rational trier of fact to find the defendant guilty of the offenses charged beyond a reasonable doubt. Jackson v. Virginia, 443 U. S. 307 (99 SC 2781, 61 LE2d 560).

Judgment affirmed.

Birdsong, C. J., Sognier and Benham, JJ., concur. Deen, P. J., Carley and Pope, JJ., concur specially. Banke, P. J., and Beasley, J., dissent.

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McMurray, Presiding Judge.

Defendant was convicted of the offenses of armed robbery, kidnapping and aggravated assault (with intent to rob). He appeals. Held:

1. In Evitts v. Lucey, 469 U. S. 387 (105 SC 830, 83 LE2d 821), the United States Supreme Court made it clear that a criminal defendant is entitled to effective assistance of counsel in the pursuit of his appeal rights. In so doing, the high court disapproved of the dismissal of a criminal defendant’s first appeal as of right. See DeBroux v. State, 176 Ga. App. 81 (335 SE2d 170). Following Evitts v. Lucey, supra, we have endeavored to make every effort to decide criminal appeals on the merits. Id. But see Knox v. State, 180 Ga. App. 564 (349 SE2d 753). We think the merits should be considered in this case.

The trial judge determined that “good and sufficient reason” was shown by defendant to allow an out-of-time appeal. In the absence of any record demonstrating the absence of an appropriate showing by defendant, “we must assume the trial court’s grant of the out-of-time [574]*574appeal was proper. Smith v. State, 160 Ga. App. 26 (285 SE2d 749) (1981).” Moore v. State, 176 Ga. App. 882, 883 (339 SE2d 271). Such an assumption is most appropriate where, as here, the state does not object to the out-of-time appeal.

2. Defendant complains that the trial court erroneously permitted a fingerprint expert to discuss fingerprinting techniques. He asserts the evidence was irrelevant and immaterial and that it should have been ruled out upon timely objection. We disagree. We cannot say the trial court abused its discretion by admitting the evidence. “The Georgia rule favors admission of any relevant evidence no matter how slight its probative value. Agnor’s Ga. Evidence, 165, § 10-2. Further, admission of irrelevant evidence is not ground for reversal unless the defendant can show how the evidence was prejudicial to him. Defendant has shown no prejudice.” Wireman v. State, 163 Ga. App. 439, 442 (295 SE2d 530).

3. Defendant contends the trial court erred by refusing to give his requested charge on impeachment. He also contends it was error to refuse to give a requested charge that a prior inconsistent statement is admissible as substantive evidence. See Gibbons v. State, 248 Ga. 858 (286 SE2d 717). These contentions are without merit. Defendant has failed to point to any impeachment in the transcript and we find none. Attempts may have been made to impeach one of the victims; but those attempts failed. The “time, place . . . and circumstances attending the former statements [were not] called to [the victim’s] mind with as much certainty as possible.” OCGA § 24-9-83. See also Smith v. State, 171 Ga. App. 758, 762 (321 SE2d 213). Moreover, with regard to the requested Gibbons v. State, supra, charge, we fail to see how defendant was prejudiced by the refusal of the trial court to give it. “Absent instructions to. the contrary, the jury surely regarded substantively all the evidence presented to it.” Ford v. State, 255 Ga. 81, 87 (335 SE2d 567).

4. The evidence presented by the prosecution was sufficient to enable any rational trier of fact to find the defendant guilty of the offenses charged beyond a reasonable doubt. Jackson v. Virginia, 443 U. S. 307 (99 SC 2781, 61 LE2d 560).

Judgment affirmed.

Birdsong, C. J., Sognier and Benham, JJ., concur. Deen, P. J., Carley and Pope, JJ., concur specially. Banke, P. J., and Beasley, J., dissent.

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359 S.E.2d 438, 183 Ga. App. 573, 1987 Ga. App. LEXIS 2724, Counsel Stack Legal Research, https://law.counselstack.com/opinion/conway-v-state-gactapp-1987.

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