Ford v. State

466 S.E.2d 11, 219 Ga. App. 562, 95 Fulton County D. Rep. 3022, 1995 Ga. App. LEXIS 1099
CourtCourt of Appeals of Georgia
DecidedSeptember 21, 1995
DocketA95A0889
StatusPublished
Cited by9 cases

This text of 466 S.E.2d 11 (Ford 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
Ford v. State, 466 S.E.2d 11, 219 Ga. App. 562, 95 Fulton County D. Rep. 3022, 1995 Ga. App. LEXIS 1099 (Ga. Ct. App. 1995).

Opinions

Pope, Presiding Judge.

Keith Ford was tried with co-defendant Kamal Naim Hassan and convicted of armed robbery.1

Viewing the evidence in the light most favorable to the verdict, on July 31, 1993, after midnight, the victim was stopped at a traffic light in her Volkswagen Passat when Ford tapped on her window with a gun. He shouted obscenities at her through the window and told her to get out of the car and to give the car up. She got out, taking her purse and her daughter, who was accompanying her in the vehicle. Ford got into the driver’s seat, a second man got in the back seat, and they drove off in her car. The victim identified the man with the gun as Ford from a photographic lineup; she also positively identified him at trial.

Although the victim’s daughter, who was nine years old at the [563]*563time of the crime, could not identify the perpetrator of the crime, she recalled that a man knocked on the window of the car with a gun.

Later on July 31, 1993, a police officer observed a Volkswagen Passat in the wrong lane of travel; she saw the vehicle swerve and leave the road a couple of times. The vehicle was eventually stopped, and Hassan, the driver, was apprehended. Hassan was taken to police headquarters where he gave a statement. Based on this investigation, Ford was arrested on August 6, 1993.

Neither Ford nor Hassan testified at trial. Ford’s defense was mistaken identity.

1. In his first enumeration, Ford contends that the eyewitness testimony was unreliable, and therefore, the evidence was insufficient to convict. We disagree and find that a rational trier of fact could find from the evidence adduced at trial proof of Ford’s guilt beyond a reasonable doubt. Jackson v. Virginia, 443 U. S. 307 (99 SC 2781, 61 LE2d 560) (1979).

2. Secondly, Ford claims that the trial court erred in failing to grant a mistrial when a detective improperly testified that Ford refused to give a statement after being read Miranda warnings at the time of his arrest. The objected-to testimony was in response to a question from the prosecutor as to whether biographical information was taken from Ford when he was taken into custody. The detective testified: “Yes, I did. I read Mr. Ford his Miranda warnings and he refused to give a statement.” Ford’s attorney moved for a mistrial outside of the jury’s presence. Ford’s attorney stated that if the court denied the motion, he would request curative instructions. The court denied the motion, but complied with the request for curative instructions, recognizing that the jury had been informed during preliminary instructions that the State had the burden of proof. In giving curative instructions, the court charged the jury that the State had the burden of proof beyond a reasonable doubt; that the defendant was not required to produce any evidence regarding his innocence; that no defendant is required to make a statement; and that any testimony to the contrary should be disregarded. Ford then renewed his motion for mistrial.

“In criminal cases, a comment upon a defendant’s silence ... is far more prejudicial than probative. ... A motion for mistrial is within the discretion of the trial court. This court will not interfere with the trial court’s exercise of that discretion unless it is clear that a mistrial is essential to the preservation of the right to a fair trial.” (Citations and punctuation omitted.) Dowdy v. State, 209 Ga. App. 95 (1) (432 SE2d 827) (1993); Chapman v. State, 263 Ga. 393, 394 (1) (435 SE2d 202) (1993). Although the evidence here was not overwhelming, see Gibbs v. State, 217 Ga. App. 614 (458 SE2d 407) (1995), it was quite strong. See generally Hill v. State, 250 Ga. 277 (4) [564]*564(295 SE2d 518) (1982).

We conclude that the trial court properly denied Ford’s motion for mistrial. “Improper reference to a defendant’s silence, however, does not automatically require reversal. Here, the trial court promptly gave curative instructions on the State’s unalterable burden of proof and the right of the accused to keep silent, and unambiguously instructed the jury that they were not permitted to draw any adverse inference from the fact the accused had asserted his right to silence. Moreover, it appears that the comment objected to was inadvertent and unresponsive on the part of the witness, and was not an intentional reference by the prosecution to the silence of the defendant where an innocent man would protest his innocence. Under these circumstances, the trial court did not abuse its discretion in denying appellant’s motion for mistrial.” (Citations and punctuation omitted.) Sims v. State, 213 Ga. App. 151, 152 (2) (444 SE2d 121) (1994).

3. Next, Ford contends that the trial court erred in proceeding with pre-trial evidentiary hearings in his absence. The State argues Ford was voluntarily absent and waived his right to be present.

The portion of the hearing which began in Ford’s absence concerned the voluntariness of co-defendant Hassan’s statement. The record indicates that Ford was absent from the hearing for a short period2 during which the only testimony was that of the officer who arrested Hassan. The officer did not testify regarding any event in which Ford was involved prior to Ford’s arrival in the courtroom.

“In McGinnis v. State, 208 Ga. App. 354, 357 (4) (430 SE2d 618) (1993), we held that conducting a pre-trial evidentiary suppression hearing in the defendant’s absence, like conducting a trial in the defendant’s absence, constitutes prejudicial error. Moreover, the defendant’s right to be present at such a hearing can be waived by defense counsel only if the waiver is made in defendant’s presence, or with the defendant’s express authority, or if the defendant subsequently acquiesces to the waiver made by counsel. (Cit.)” (Punctuation omitted.) Deal v. State, 213 Ga. App. 131 (443 SE2d 713) (1994).

The record clearly shows that Ford’s absence was before the jury was sworn, and thus before jeopardy attached, and we are unable to conclude that he waived his right to be present, as the State argues. Deal, 213 Ga. App. at 132. Nevertheless, given that the substance of the testimony which Ford missed did not involve him in any way, the court’s decision to proceed in his absence constituted, at most, harmless error. Unlike the situation in Perry v. State, 216 Ga. App. 749 (1) (456 SE2d 89) (1995), where the defendants were absent during lengthy testimony regarding the co-defendant’s alibi, here Ford was [565]*565absent very briefly from a hearing as to the voluntariness of the co-defendant’s statement and the brief portion of testimony which Ford missed involved the circumstances surrounding Hassan’s arrest. The testimony could not have harmed Ford since it could have had no effect on the verdict rendered against him. See generally Wanzer v. State, 232 Ga. 523, 525 (1) (207 SE2d 466) (1974); compare Wilson v. State, 212 Ga. 73, 74-75 (90 SE2d 557) (1955). Accordingly, no new trial is required.

4. In his fourth enumeration, Ford argues that the trial court erred in allowing Hassan’s improperly redacted statement to be read to the jury. As redacted, Hassan’s statement referred to “seven of us,” who were involved in the robbery. In the redacted version, Hassan names two of the other individuals involved in the robbery and does not name Ford.

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Ford v. State
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Cite This Page — Counsel Stack

Bluebook (online)
466 S.E.2d 11, 219 Ga. App. 562, 95 Fulton County D. Rep. 3022, 1995 Ga. App. LEXIS 1099, Counsel Stack Legal Research, https://law.counselstack.com/opinion/ford-v-state-gactapp-1995.