Dryden v. State

728 S.E.2d 245, 316 Ga. App. 70, 2012 Fulton County D. Rep. 1612, 2012 WL 1501014, 2012 Ga. App. LEXIS 417
CourtCourt of Appeals of Georgia
DecidedApril 30, 2012
DocketA12A0026
StatusPublished
Cited by9 cases

This text of 728 S.E.2d 245 (Dryden 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
Dryden v. State, 728 S.E.2d 245, 316 Ga. App. 70, 2012 Fulton County D. Rep. 1612, 2012 WL 1501014, 2012 Ga. App. LEXIS 417 (Ga. Ct. App. 2012).

Opinion

McFadden, Judge.

This is the second appearance of this case before us. Chanju Dryden now appeals after a second trial from convictions for aggravated assault, reckless conduct and serious injury by vehicle. He argues that the trial court erred by reading the entire indictment —• including certain charges that already had been resolved — to the jury panel prior to selection; that the court erred in admitting similar transaction and res gestae evidence; that the verdicts for aggravated assault and serious injury by vehicle were mutually exclusive; that double jeopardy principles barred his re-indictment; that the trial court erred in failing to instruct the jury on the defense of accident; and that the court erred by refusing to allow him to introduce impeachment evidence. We hold that Dryden has not shown that he was harmed by the trial court’s reading the entire indictment to the potential jurors; the trial court did not err in admitting similar transaction and res gestae evidence; the verdicts were not mutually exclusive; double jeopardy did not bar Dryden’s re-indictment; the court did not err in refusing to instruct the jury on accident; and the [71]*71evidence Dryden sought to introduce was not relevant. We therefore affirm Dryden’s convictions.

In 2006, Dryden was indicted for aggravated battery, aggravated assault on a peace officer, serious injury by vehicle based upon reckless driving, possession of marijuana with intent to distribute, abandonment of a controlled substance, reckless driving, obstructing an officer and a stop sign violation. The charges arose from a controlled marijuana buy and from Dryden’s attempt to flee. He entered guilty pleas to the charges of possession of marijuana with intent to distribute, abandonment of a controlled substance and running a stop sign. A jury found Dryden guilty of aggravated assault on a peace officer, serious injury by vehicle based upon reckless driving, reckless driving and obstructing an officer. The trial court merged the convictions for reckless driving and serious injury by vehicle based upon reckless driving. We affirmed Dryden’s convictions, Dryden v. State, 292 Ga. App. 467 (665 SE2d 341) (2008), but our Supreme Court reversed the convictions for aggravated assault on a peace officer and serious injury by vehicle based upon reckless driving, “[fjinding that the verdicts of guilt for the two crimes must be determined mutually exclusive in this case.” Dryden v. State, 285 Ga. 281 (676 SE2d 175) (2009).

The state re-indicted Dryden in 2009, this time charging him with two counts of aggravated assault on a peace officer, serious injury by vehicle based upon reckless driving, and reckless driving. It also indicted him for the three charges to which Dryden had pled guilty and which he had not appealed (possession of marijuana with intent to distribute, abandonment of a controlled substance and running a stop sign) and for obstructing an officer, which we had affirmed on appeal and which the Supreme Court did not address.

Dryden filed motions to dismiss and pleas in bar, which the trial court denied. The court did rule that the sentences on the charges of possession of marijuana with intent to distribute, abandonment of a controlled substance, obstructing an officer, and the stop sign violation would be the sentences imposed during the first proceeding, thereby effectively barring their retrial.

The case proceeded to trial, and the jury returned a guilty verdict of aggravated assault on Officer Mark Thomason, reckless conduct as a lesser offense of the aggravated assault on Officer Kenny Neece, and serious injury by vehicle of Officer Thomason. After the trial court denied Dryden’s motion for new trial, he filed this appeal.

Viewed in the light most favorable to the verdict, Jackson v. Virginia, 443 U. S. 307 (99 SC 2781, 61 LE2d 560) (1979), the evidence shows that, on January 18, 2006, using an informant, the police arranged a controlled buy of marijuana from Dryden. The informant [72]*72and an undercover officer drove to a gas station to meet Dryden. Seven other officers were involved in the buy: four officers, including victims Mark Thomason and Kenny Neece, were in a sport utility vehicle (SUV) and three were in a pickup truck. The officers headed toward the gas station where the buy was to occur, but remained hidden. Dryden arrived, and the informant got into his car. The officer driving the pickup truck signaled the takedown.

The officers tried to block one exit of the gas station parking lot with the SUV, which had its lights flashing, and a second exit with the pickup truck. Dryden began trying to back out, hitting the undercover officer’s vehicle behind him. Dryden pulled forward and stopped in front of the SUV. Believing that Dryden’s car was blocked in, Thoma-son and Neece exited the SUV. As Neece came around the SUV toward the driver’s side of Dryden’s car, Dryden started driving the car straight at him, while maintaining eye contact, causing him to jump back and run. This left open an exit from the parking lot, but instead of exiting, Dryden changed direction and drove toward Thomason.

As Dryden came toward him, Thomason used his hand to push away from Dryden’s car, but Dryden continued to accelerate toward him, forcing him to back up. Thomason drew his gun, intending to shoot Dryden to stop him. As Thomason fired his gun, Dryden attempted to flee the scene, hitting Thomason with his car, pinning him against the stopped pickup truck and crushing his leg between the two vehicles. Dryden then fled the parking lot.

1. Dryden argues that the state should not have re-indicted him for offenses he had already resolved and that the court erred by reading the entire indictment — including the charges that had been resolved — to the jury panel prior to selection. Dryden unsuccessfully moved for a new panel from which to select jurors.

We do not reach Dryden’s argument that the state should not have been permitted to re-indict him for offenses that had already been resolved, because that argument does not identify an error by the trial court. “This [c]ourt is a court of review for the correction of errors made by the trial court. Here there is no ruling to review.” Jett v. State, 246 Ga. App. 429, 430 (2) (540 SE2d 209) (2000).

Dryden does complain that the trial court erred in reading the entire indictment to the jury panel. But he has not shown harm. The trial court read the entire indictment to the jury panel before the parties struck the jury. Once the jurors had been selected, the court expressly instructed them that only the first three counts were on trial. In its closing instructions, the trial court reiterated that the jurors were only to consider the three charges. And, having elected to send the indictment out with the jury, the trial court, with the consent [73]*73of Dryden’s counsel, sent only the portion of the indictment listing the three charges on trial. So the jury knew that Dryden was on trial for only the three charges.

Moreover as discussed in Division 4, the state was entitled to present evidence of the entire transaction. It did so, including testimony about the conduct underlying the charges that had been resolved.

Dryden therefore has not shown harmful error. Foster v. State, 230 Ga. 666, 668 (4) (198 SE2d 847) (1973). “[I]t is axiomatic that harm as well as error must be shown to authorize a reversal by this court.” (Citation omitted.) Zinnamon v. State, 261 Ga.

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Cite This Page — Counsel Stack

Bluebook (online)
728 S.E.2d 245, 316 Ga. App. 70, 2012 Fulton County D. Rep. 1612, 2012 WL 1501014, 2012 Ga. App. LEXIS 417, Counsel Stack Legal Research, https://law.counselstack.com/opinion/dryden-v-state-gactapp-2012.