Cook v. State

Court of Appeals of Georgia

Cook v. State

320 S.E.2d 195, 171 Ga. App. 431, 1984 Ga. App. LEXIS 2981

CourtCourt of Appeals of Georgia

DecidedJune 15, 1984

Docket67884

StatusPublished

Cited by4 cases

This text of 320 S.E.2d 195 (Cook 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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Cook v. State, 320 S.E.2d 195, 171 Ga. App. 431, 1984 Ga. App. LEXIS 2981 (Ga. Ct. App. 1984).

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Opinions

Benham, Judge.

Appellant was indicted for armed robbery and found guilty of an included offense, robbery. On appeal, he questions the sufficiency of the evidence presented against him and contends that the trial court erroneously denied his motion for mistrial.

1. At trial, both the victim and his daughter, Ms. Cook (of no relation to appellant), testified that two men committed the robbery. Ms. Cook stated that the “first guy” grabbed her father and the other man pointed a gun at her and told her to keep going. She identified the second man as appellant and stated that she had previously identified Michael Tarplan as the first man. The witness was thoroughly cross-examined as to her identification testimony, and remained positive that appellant had participated in the crime against her father.

“Issues regarding credibility of witnesses must be resolved solely by the jury. [Cits.]” (Emphasis supplied.) Redd v. State, 154 Ga. App. 373 (1) (268 SE2d 423). Obviously, the jury chose to believe Ms. Cook’s testimony that appellant was a perpetrator of the crime she witnessed, and this appellate court cannot substitute its opinion for that rendered by the jury. The eyewitness’ identification of appellant as a participant in the crime was sufficient evidence for a rational trier of fact to have found appellant guilty. See Mitchell v. State, 169 Ga. App. 630 (314 SE2d 468).

2. At trial, the arresting officer testified that he arrested appellant at Grady Hospital, where he was suffering from a gunshot wound. There was no evidence that either of the perpetrators was shot during the armed robbery with which appellant was charged. Appellant moved for a mistrial on the ground that the officer’s testimony impermissibly placed appellant’s character in issue. We disagree.

“The testimony of the police officer did not tend to reflect upon the character of the accused or raise any issue in regard to his character . . . No inference derogatory of one’s reputation or character can be drawn from the mere proof that he has [been hospitalized with a [432]*432gunshot wound].” Cherry v. State, 220 Ga. 695 (3) (141 SE2d 412) (1965); Standridge v. State, 158 Ga. App. 482 (5) (280 SE2d 850) (1981). See also Tankersley v. State, 155 Ga. App. 917 (11) (273 SE2d 862) (1980) (where questioning by the State of the defendant about testimony he had given at a previous trial did not place his character in evidence); Welborn v. State, 132 Ga. App. 207 (3b) (207 SE2d 688) (1974) (testimony of a uniformed officer that he had had occasion to talk with the defendant did not place the latter’s character in issue). Similarly, the officer’s testimony that appellant had suffered a gunshot wound did not impermissibly place appellant’s character in issue.

Decided June 15, 1984 Rehearing denied June 29, 1984 Carl P. Greenberg, for appellant. Lewis R. Slaton, District Attorney, Joseph J. Drolet, Benjamin H. Oehlert III, Harvey Moskowitz, Assistant District Attorneys, for appellee.

Judgment affirmed.

McMurray, C. J., Deen, P. J., Quillian, P. J., Birdsong, Carley, and Pope, JJ., concur. Banke, P. J., and Sognier, J., dissent.

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Benham, Judge.

Appellant was indicted for armed robbery and found guilty of an included offense, robbery. On appeal, he questions the sufficiency of the evidence presented against him and contends that the trial court erroneously denied his motion for mistrial.

1. At trial, both the victim and his daughter, Ms. Cook (of no relation to appellant), testified that two men committed the robbery. Ms. Cook stated that the “first guy” grabbed her father and the other man pointed a gun at her and told her to keep going. She identified the second man as appellant and stated that she had previously identified Michael Tarplan as the first man. The witness was thoroughly cross-examined as to her identification testimony, and remained positive that appellant had participated in the crime against her father.

“Issues regarding credibility of witnesses must be resolved solely by the jury. [Cits.]” (Emphasis supplied.) Redd v. State, 154 Ga. App. 373 (1) (268 SE2d 423). Obviously, the jury chose to believe Ms. Cook’s testimony that appellant was a perpetrator of the crime she witnessed, and this appellate court cannot substitute its opinion for that rendered by the jury. The eyewitness’ identification of appellant as a participant in the crime was sufficient evidence for a rational trier of fact to have found appellant guilty. See Mitchell v. State, 169 Ga. App. 630 (314 SE2d 468).

2. At trial, the arresting officer testified that he arrested appellant at Grady Hospital, where he was suffering from a gunshot wound. There was no evidence that either of the perpetrators was shot during the armed robbery with which appellant was charged. Appellant moved for a mistrial on the ground that the officer’s testimony impermissibly placed appellant’s character in issue. We disagree.

“The testimony of the police officer did not tend to reflect upon the character of the accused or raise any issue in regard to his character . . . No inference derogatory of one’s reputation or character can be drawn from the mere proof that he has [been hospitalized with a [432]*432gunshot wound].” Cherry v. State, 220 Ga. 695 (3) (141 SE2d 412) (1965); Standridge v. State, 158 Ga. App. 482 (5) (280 SE2d 850) (1981). See also Tankersley v. State, 155 Ga. App. 917 (11) (273 SE2d 862) (1980) (where questioning by the State of the defendant about testimony he had given at a previous trial did not place his character in evidence); Welborn v. State, 132 Ga. App. 207 (3b) (207 SE2d 688) (1974) (testimony of a uniformed officer that he had had occasion to talk with the defendant did not place the latter’s character in issue). Similarly, the officer’s testimony that appellant had suffered a gunshot wound did not impermissibly place appellant’s character in issue.

Decided June 15, 1984 Rehearing denied June 29, 1984 Carl P. Greenberg, for appellant. Lewis R. Slaton, District Attorney, Joseph J. Drolet, Benjamin H. Oehlert III, Harvey Moskowitz, Assistant District Attorneys, for appellee.

Judgment affirmed.

McMurray, C. J., Deen, P. J., Quillian, P. J., Birdsong, Carley, and Pope, JJ., concur. Banke, P. J., and Sognier, J., dissent.

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320 S.E.2d 195, 171 Ga. App. 431, 1984 Ga. App. LEXIS 2981, Counsel Stack Legal Research, https://law.counselstack.com/opinion/cook-v-state-gactapp-1984.

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