Finney v. State

258 S.E.2d 670, 150 Ga. App. 874, 1979 Ga. App. LEXIS 2406

• Court: Court of Appeals of Georgia
• Decided: July 10, 1979
• Docket: 57335
• Status: Published

Opinions

Quillian, Presiding Judge.

The defendant appeals his conviction for the offense of child molestation. Held:

1. The defendant alleges the trial court erred "in failing to respond to the jury foreman’s request for clarification of instructions . . .” which resulted in "a deprivation of the appellant’s constitutional rights to trial by jury and to due process of law.” No assertion of constitutional error was made in the court below and it may not be raised for the first time on appeal. Moore v. State, 141 Ga. App. 245, 246 (233 SE2d 236).

"The burden is on him who asserts error to show it affirmatively by the record.” Roach v. State, 221 Ga. 783, 786 (147 SE2d 299). The only reference to this alleged error is after the court had received the verdict of the jury and the court was discussing bond for the defendant. He stated: "I do want to tell you that I had intended — it was made known to me that you wanted some further information, but we’re trying another case and I just couldn’t stop at that time. I’m sorry. I hope it wasn’t —.”

The record reflects only that the jury sought "further information.” This does not equate to the enumeration of error’s designation of "clarification of instructions.” The record does not support the enumerated error and we will not presume error from a silent record.

We are aware of the court’s duty to recharge the jury on "any point” requested by it. Edwards v. State, 233 Ga. 625, 626 (212 SE2d 802). But such statement must not be considered in vacuo. There are a number of reasons we do not find reversible error. First, there was no objection by defendant’s counsel to the procedure followed by the court. Second, no ruling was obtained by counsel which could be reviewed by this court. Third, counsel requested no corrective action. Lastly, we will not reverse an otherwise valid conviction upon an unspecified request of the jury "for informátion” — because the judge was not available at that particular moment. The record was not fleshed out to support any claim of error, i.e. whether the request was for a particular type of information — which may or may not have been available or admissible, or whether the court advised the jury he could not come "at that time,” or whether he would be available within minutes. We have no information as to whether the jury persisted in their request or did not deem it important enough to wait a few minutes until the judge became available. We commend the holding of Edwards, supra, and Whitfield v. State, 143 Ga. App. 779 (1) (240 SE2d 189), to all members of the trial judiciary, with the admonition to heed their advice and document the record as to the specific requests of the jury and the reply of the court.

Submitted March 12, 1979 Decided July 10, 1979 Rehearing denied July 25, 1979 Charles L. Burris, for appellant. W. Donald Thompson, District Attorney, Willis B. Sparks, III, Assistant District Attorney, for appellee.

2. Counsel requested that he be relieved of further pursuit of this appeal under Anders v. California, 386 U. S. 738 (87 SC 1396, 18 LE2d 493). We have reviewed the record and transcript and find the presence of sufficient evidence to support the verdict of the jury and the absence of any error which would require reversal. However, under the test of Anders, supra, and Bethay v. State, 237 Ga. 625 (229 SE2d 406), we do not find this appeal to be frivolous, and counsel’s request is denied.

Judgment affirmed.

Deen, C. J., McMurray, P. J., Banke, Birdsong, Underwood and Carley, JJ., concur. Smith, J., dissents. Shulman, J., not participating.