Lynn v. State
This text of 553 S.E.2d 836 (Lynn 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.
Opinion
Larry Lynn demanded sex from his estranged wife and then stabbed her in the back with a knife when she refused. Holding the knife to her throat, he then forced her to disrobe and partially penetrated her. After she promised to say that she accidentally cut herself, he took her to the hospital, where she escaped from him and told authorities of the assault. A jury found him guilty on two counts: aggravated assault with intent to rape* 1 and aggravated assault with *156 a deadly weapon. 2 The court gave him the same sentence on each count, with the sentences to run concurrently.
Lynn enumerates three errors: (1) the court gave flawed instructions on reasonable doubt; (2) the court allowed additional testimony from the treating surgeon that the victim’s wound was not self-inflicted; and (3) the court failed to merge the two counts before sentencing. We hold that the instructions were adequate and that the surgeon’s testimony was properly allowed. As tacitly conceded by the State, however, the failure to merge the two counts was error, which requires that we vacate the convictions and remand for resentencing.
1. The court’s instructions on reasonable doubt, although disapproved, do not require a new trial.
(a) Lynn first complains that in a preliminary instruction at the beginning of trial, the court instructed the jury that they “should acquit” if they found reasonable doubt as to Lynn’s guilt, and that if they found no reasonable doubt, they had a “responsibility to convict.” Lynn argues that the judge should have instructed the jury that they must acquit if they found reasonable doubt, and only that they were authorized to convict if they found no reasonable doubt.
We have previously considered and rejected the argument that “must acquit” not “should acquit” is the required language when describing the jury’s role should they find reasonable doubt. 3 We have consistently approved the “should acquit” language. 4
The Supreme Court of Georgia has disapproved, however, language that a jury has a responsibility or duty to convict if they find no reasonable doubt. 5 The better language is that in that event the jury would be authorized to convict. 6 Nevertheless, when the disapproved language is used only once in the preliminary instructions, and when, as here, the approved language is used in the closing instructions, the error does not justify a reversal. 7
(b) Lynn next contends that the court erred in instructing the jury that they were “the sole judges of the guilt or innocence of the defendant.” Lynn argues that the jury is concerned not with the innocence of the accused, but with whether the State bears its burden of proving guilt beyond a reasonable doubt. We have long approved the *157 instruction that the jury is the sole judge of the defendant’s guilt or innocence. 8 We see no reason to change that approval now, particularly in light of the trial court’s instructions here clearly placing on the State the burden of proving Lynn’s guilt beyond a reasonable doubt.
2. A thoracic surgeon who treated the victim testified that the victim had a three-inch-deep stab wound that went straight in or slightly upward. Even though the surgeon was excused after his testimony and left the courtroom, the State later asked the court for leave to recall the surgeon to ask his opinion whether the wound was self-inflicted. Over Lynn’s objection, the court allowed the surgeon to return and to testify that the location and nature of the wound indicated that it was not self-inflicted.
(a) Lynn first argues that the court should not have allowed the excused witness to be recalled. A court has broad discretion to allow a witness to be recalled for further examination, 9 even after the State has rested its case and even though the additional testimony is not in rebuttal of evidence offered by the defendant. 10 As we discern no abuse of that discretion here, this argument is without merit.
(b) Lynn then complains that the court erred in assisting the State in laying a foundation for the surgeon’s opinion on self-infliction of the wound. At trial, however, Lynn made no objections to the court’s actions in this regard. Lynn’s failure to raise and preserve this issue at trial forecloses any appellate review.* 11
(c) Lynn claims that the issue of whether the wound was self-inflicted was not beyond the jury’s range of knowledge and therefore expert opinion on the matter was erroneously admitted. Expert testimony is appropriate where the conclusion of the expert is one which jurors would not ordinarily be able to draw for themselves, meaning the conclusion is beyond the range of knowledge of the average layman. 12 Whether stabbing wounds are self-inflicted is a matter beyond the range of knowledge of the average layman. 13 The court did not abuse its discretion in allowing the opinion testimony. 14
3. Lynn complains that in sentencing him the court erroneously considered his prior convictions, even though he had not received notice of such nor were certified convictions submitted. The record reveals, however, that no harm came of this because the court acknowledged problems regarding the prior convictions and therefore did not consider them in issuing its sentences.
4. Citing OCGA § 16-1-7, Lynn contends that the court erred in not merging the two counts prior to sentencing. The State tacitly concedes the point, but maintains that only a remand for resentencing is required.
Count 1 charged Lynn with aggravated assault in that on May 10, 1998, he assaulted the victim, with intent to rape, by holding a knife to her throat and stabbing her in the back. 15 Count 2 charged him with aggravated assault in that on that same date, he assaulted the victim, with a deadly weapon, by holding a knife to the victim’s throat and stabbing her in the back. 16
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Cite This Page — Counsel Stack
553 S.E.2d 836, 251 Ga. App. 155, 2001 Fulton County D. Rep. 2621, 2001 Ga. App. LEXIS 947, Counsel Stack Legal Research, https://law.counselstack.com/opinion/lynn-v-state-gactapp-2001.