Hayes v. State

387 S.E.2d 139, 193 Ga. App. 33, 1989 Ga. App. LEXIS 1292
CourtCourt of Appeals of Georgia
DecidedSeptember 5, 1989
DocketA89A1077
StatusPublished
Cited by22 cases

This text of 387 S.E.2d 139 (Hayes 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
Hayes v. State, 387 S.E.2d 139, 193 Ga. App. 33, 1989 Ga. App. LEXIS 1292 (Ga. Ct. App. 1989).

Opinions

Sognier, Judge.

Marion Hayes appeals from his conviction of burglary and possession of burglary tools.

1. Appellant first enumerates the general grounds. Construing it to support the verdict, the evidence adduced at trial showed that on the morning of October 20, 1987, James T. Morrison and Theresa Bird heard the sound of wood cracking at the back door of their rented house and Morrison, upon checking, observed a man, later identified as appellant, outside the back door. When observed by Morrison, appellant had forced open the burglar door, broken a windowpane, and was in the process of removing one of the glass panes from the back door. Appellant noticed Morrison and fled, and Morrison and Bird set off after appellant. When they caught up with appellant he attacked both Morrison and Bird. Morrison eventually struggled appellant to the ground and Bird called the police, who arrested appellant, finding on his person a pair of women’s white gloves, a flashlight, an Allen wrench set, and a syringe. Morrison testified he had seen an Allen wrench in appellant’s hand at the back door; Bird testified she saw appellant use something that looked like an Allen wrench to chip away at the window.

Appellant did not deny that he was at the scene. He testified that, having been depressed, he had ingested both cocaine and alcohol during the several days before the incident in several unsuccessful attempts to commit suicide, had passed out, and simply could not remember anything about the time in question. However, appellant also told police when apprehended that he had gone to the house where Morrison and Bird lived because he was looking for his wife. Both Morrison and Bird denied any knowledge of appellant or his wife prior to this incident.

“It is the function of the jury to determine the credibility of witnesses and to weigh and resolve any conflicts in the testimony. This court must view the evidence in a light most favorable to the jury’s verdict. [Cit.] Viewing the evidence in that light, we are satisfied that any rational trier of fact could have found appellant guilty beyond a reasonable doubt. [Cit.]; Jackson v. Virginia, 443 U. S. 307 (99 SC 2781, 61 LE2d 560) (1979).” Blackman v. State, 178 Ga. App. 88, 89 (1) (342 SE2d 24) (1986).

2. Appellant next contends the trial court erred by improperly limiting his cross-examination of Bird. The trial court sustained the prosecutor’s objection, on the grounds of relevance and prejudice, to appellant’s counsel asking Bird: “[n]ow, isn’t it true that [appellant] knocked on your door and the reason y’all didn’t answer the door was you thought it was a bill collector, isn’t that true?” In making an offer [34]*34of proof outside the presence of the jury, appellant’s counsel stated that his question was based on his visit to the victims’ house approximately four months after the incident, at which time he had seen many bills and an eviction notice in the open mailbox and the landlord had confirmed that eviction proceedings had been brought against the victims in November and they had moved out.

We find no reversible error here. “The scope of cross-examination is not unlimited and the extent thereof lies within the sound discretion of the court. [Cit.] An irrelevant or immaterial line of inquiry may be curtailed without violence to a defendant’s permissible scope of cross-examination. [Cit.]” Deyton v. State, 182 Ga. App. 73, 74 (3) (354 SE2d 625) (1987). Under the circumstances here, where appellant’s claim that the victims were experiencing financial difficulties was based on circumstances at a time four months later than the incident at issue, and where it is difficult to imagine how, in any event, financial difficulties would have given the victims a motive to fabricate a burglary, we find no abuse of discretion by the trial court on its limitation of appellant’s cross-examination along those lines. See generally Fitzgerald v. State, 166 Ga. App. 307, 310-311 (7) (304 SE2d 114) (1983).

3. Appellant asserts the trial court erred by failing to grant his motion for a mistrial after the prosecution commented improperly on appellant’s exercise of his right to remain silent at the time of his arrest. The record shows that after appellant had rested, the trial court permitted the State to call DeKalb County Police Detective A. B. Blaisdell, who had been unavailable during the presentation of the State’s case. Blaisdell testified that he brought appellant to the police station after his arrest and read him his rights. The prosecutor then asked Blaisdell: “And at that point, [appellant] decided not to make a statement to you, is that correct?” Defense counsel objected immediately and moved for a mistrial. The trial court denied the motion, but ordered the question stricken from the record and instructed the jury to disregard it. Thus, even if we were to agree with appellant that the prosecutor’s question was an improper comment on the exercise of appellant’s right to remain silent when arrested, the trial court did not commit reversible error by denying the motion for a mistrial. “The decision to grant or deny a motion for a mistrial is necessarily a matter within the discretion of the trial court, and the court’s exercise of that discretion will not be disturbed on appeal unless it is apparent that a mistrial is essential to preserve the defendant’s right to a fair trial. [Cit.] ‘Here the trial judge acted immediately, ruled out the offensive [comment], and properly instructed the jury not to consider the [comment] in its deliberations. (Cit.) Under the facts of this case, we cannot say that this amounted to an abuse of discretion.’ [Cit.]” Culbreath v. State, 258 Ga. 373, 376 (3) (369 SE2d 29) (1988).

[35]*354. We find no merit in appellant’s contention that the trial court’s charge and recharge to the jury regarding the definition of an unauthorized entry, taken from Mullinnix v. State, 177 Ga. App. 168 (338 SE2d 752) (1985), was an incorrect statement of the law and was not adjusted to the evidence. The trial court instructed the jury on the statutory definition of burglary. He then charged the jury, concerning what constitutes an unauthorized entry, that “where a defendant breaks the plane of a structure with intent to steal, he has done enough to permit a reasonable trier of fact to rationally find proof of entry with intent to commit a theft beyond a reasonable doubt.” The jury was recharged in the identical language when, after beginning its deliberations, it asked the trial court “[w]hat is the law regarding a definition of entry[?]”

Appellant argues that Mullinnix, supra, is not applicable because, although he broke the window on the back door, unlike the situation in Mullinnix there was no evidence he put his hand or any object through it, and thus no evidence that appellant “broke the plane” of the structure. See Hampton v. State, 145 Ga. App. 642 (244 SE2d 594) (1978). However, appellant’s argument ignores the undisputed fact that before reaching the back door window appellant “broke the plane” of the structure by forcing his way through the screen on the burglar door to reach through, unlock it, and obtain access to the window. Thus, the trial court’s charge is a correct statement of the law and was adjusted to the evidence in the case, and we find no error here.

5. Appellant raises objection to the charge of the trial court on possession of burglary tools, citing Burnette v. State, 168 Ga. App. 578 (309 SE2d 875) (1983). In Burnette,

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Bluebook (online)
387 S.E.2d 139, 193 Ga. App. 33, 1989 Ga. App. LEXIS 1292, Counsel Stack Legal Research, https://law.counselstack.com/opinion/hayes-v-state-gactapp-1989.