Hart v. State

224 S.E.2d 755, 137 Ga. App. 644, 1976 Ga. App. LEXIS 2558

• Court: Court of Appeals of Georgia
• Decided: January 22, 1976
• Docket: 51446
• Status: Published

Opinions

Stolz, Judge.

Defendant Hart was pursued to his home by a police officer who was trying to stop him for speeding. At the defendant’s home, a skirmish started between the officer and a juvenile. Defendant, brandishing a knife, cut several police officers before he was subdued and arrested. The defendant now appeals his conviction of aggravated assault and several misdemeanors.

1. During voir dire, counsel for the defendant attempted to ask a prospective juror whether he thought that one would be justified in aiding a family member who was being attacked. The trial court excluded the question on the grounds that it required the juror to prejudge the case.

The appellant contends that this was error since the question was not designed to make the juror prejudge the case, but rather to find out if he had already done so. We disagree. The trial judge has discretion to determine which questions are impermissible. His determination that the question at issue here required prejudgment of one of the main issues in defendant’s case, was not an abuse of discretion requiring a reversal of the verdict. See Gunnin v. State, 112 Ga. App. 720 (146 SE2d 131); Pinion v. State, 225 Ga. 36 (4) (165 SE2d 708).

2. Defendant further contends that his statements about "cutting everything in uniform” were inadmissible since they were made at a time when the alcoholic content of his blood was. 14 percent, or. 04 percent above the figure by which the law measures a person’s ability to drive a motor vehicle. Defendant contends that his intoxication precluded a waiver of Miranda rights. This contention is without merit. The defendant was afforded a hearing on the admissibility of these statements pursuant to Jackson v. Denno, 378 U. S. 368 (84 SC 1774, 12 LE2d 908, 1 ALR3d 1205). Where the judge has determined, by a preponderance of the evidence, that a statement was made by one who voluntarily waived his Miranda rights, that determination as to admissibility of the incriminating statement will be upheld unless it is clearly erroneous. Johnson v. State, 233 Ga. 58 (209 SE2d 629); High v. State, 233 Ga. 153 (210 SE2d 673).

Moreover, we note that the .10 percent standard for measuring one’s inability to drive an automobile raises no presumption as to admissibility of evidence in the instant case. The tests for driving an automobile and relinquishing rights are different and hence, are measured by different criteria. The fact that a person’s judgment or reflexes may render him unable to control his motor vehicle on the road does not bear upon whether he can understand what his Miranda rights are and decide whether or not to waive them.

3. While Code Ann. § 27-2510 provides in most instances for concurrent sentences for conviction of multiple counts during the same term of court, we have repeatedly construed this statute as giving the trial judge authority to impose consecutive sentences where separate and distinct crimes are charged. See, e.g., Heard v. State, 126 Ga. App. 62 (5) (189 SE2d 895); Smith v. Ault, 230 Ga. 433 (3) (197 SE2d 348).

4. The evidence at trial showed that the defendant jabbed at one of the officers with a knife and kicked him several times. The jury was authorized to find that this was an assault with intent to murder.

5. The grounds for the defendant’s motion for a new trial are the same as his enumerated errors. Accordingly, it was not error to overrule his motion for a new trial.

Argued October 30, 1975 Decided January 22, 1976 Rehearing denied February 17, 1976 Leonard Cohen, for appellant. William H. Ison, District Attorney, Douglas N. Peters, Assistant District Attorney, for appellee.

Judgment affirmed.

Bell, C. J., Panned, P. J., Deen, P. J., Quillian, Clark, Webb and Marshall, JJ., concur. Evans, J., dissents.