McBride v. State

446 S.E.2d 193, 213 Ga. App. 857, 94 Fulton County D. Rep. 2267, 1994 Ga. App. LEXIS 744
Court of Appeals of Georgia·Decided June 9, 1994·No. A94A1003·Published·Cited by 29 cases

Opinions

Johnson, Judge.

In this pro se appeal of his conviction on 23 counts of first degree forgery, Stephen McBride asserts 19 enumerations of error.1 Several of the enumerations of error have been consolidated for consideration in this opinion.

1. McBride was sentenced to serve 23 one-year sentences in confinement, to run consecutively. He argues that the sentence is disproportionate to the crimes committed and constitutes cruel and unusual punishment. OCGA § 17-10-1 authorizes a trial court to impose any sentence within the limits provided by law. “The sentence in this case was within the statutory limits [OCGA § 16-9-1 (b)], and any complaints regarding the sentence should have been addressed to the appropriate sentence review panel.” (Citations and punctuation omitted.) Williams v. State, 208 Ga. App. 716 (1) (431 SE2d 469) (1993). This enumeration is without merit.

2. The state argues that remanding the case to the trial court for an evidentiary hearing on McBride’s assertion that assistance afforded him by trial counsel was ineffective is unnecessary. Trial counsel filed a timely motion for new trial. Shortly thereafter, the trial court granted McBride’s request to proceed pro se. He withdrew the motion for new trial and filed a notice of appeal. “It is axiomatic that a claim of ineffectiveness of trial counsel must be asserted at ‘the earliest practicable moment.’ Smith v. State, 255 Ga. 654, 656 (3) (341 SE2d 5) (1986). In the present case, [McBride] had the opportunity to raise a claim of ineffectiveness of trial counsel prior to this appeal in an amendment to the motion for new trial, but failed to do so. As [858] such, his challenge to the effectiveness of his trial counsel is procedurally barred, and no remand is required. Owens v. State, 263 Ga. 99 (3) (428 SE2d 793) (1993).” Bailey v. State, 264 Ga. 300 (443 SE2d 836) (1994).

3. McBride has pointed to numerous examples of what he alleges constitute prosecutorial misconduct and vindictiveness which denied him a fair trial.

(a) First he complains that the state’s decision to prosecute additional counts against him by means of a second accusation created a presumption of vindictiveness on the part of the state, and illustrates “intentional” and “purposeful” acts intended to oppress and deter McBride from adequately representing himself. Evidence presented at a pretrial hearing indicates that two separate cases against McBride were pending in the district attorney’s office, one involving Wachovia Bank and the other involving NationsBank. In the interest of judicial economy and in light of OCGA § 16-1-7 (b), which requires prosecution of crimes arising from the same conduct in a single prosecution, we find this assertion to be without merit.

(b) McBride also complains that the prosecutor gave an interview to the press during the trial of the case, prompting a motion for a mistrial. Outside the presence of the jury, the court questioned the prosecutor who denied giving any information to the newspaper. The jury was asked if it had seen any article related to the case in the newspaper or been influenced by it. The jury denied having read or being influenced by the story. The motion for mistrial was not renewed after a brief curative instruction from the court, and therefore the right to appellate review of the issue was waived. Leary v. State, 206 Ga. App. 191 (424 SE2d 903) (1992).

(c) McBride argues that an improper question asked of the state’s expert witness by the prosecution caused him irreparable harm by referring to testimony given in a previous case against him. No objection was made at this point in the testimony, and no ruling made by the trial court regarding the testimony. “It is well established law that enumerations of error which raise questions for the first time on appeal present nothing for decision. Grounds for reversal which may be considered on appeal are limited to those which were argued before the trial court.” (Citations and punctuation omitted.) Orr v. State, 209 Ga. App. 832, 833 (434 SE2d 723) (1993). There is nothing properly before us for review.

(d) We have reviewed McBride’s remaining assertions of alleged prosecutorial misconduct and find that they were either waived or are without merit.

4. McBride asserts that the trial court judge’s refusal to recuse himself from the case was error. Although it does not appear in the record, McBride asserts that he filed an action pursuant to 42 USC [859] § 1983 in federal court against the trial court judge asserting that he had been denied his right to a speedy trial. The trial judge refused to recuse himself stating that the action would not make recusal mandatory because it did not arise from an extrajudicial activity. “In order to be disqualifying the alleged bias must stem from an extrajudicial source and result in an opinion on the merits on some basis other than what the judge learned from his participation in the case. The alleged bias of the judge must be of such a nature and intensity to prevent the party from obtaining a trial uninfluenced by the court’s prejudgment.” (Citations and punctuation omitted.) Stevens v. Myers, 190 Ga. App. 61, 62 (2) (378 SE2d 334) (1989). We have reviewed the record in this case and find that McBride’s motion to recuse was correctly denied. Further, we find McBride’s numerous other allegations of judicial, misconduct to be totally without merit.

5. The trial court’s refusal to give McBride’s requested “two theories” charge to the jury was not error. In Johnson v. State, 210 Ga. App. 99, 102 (2) (435 SE2d 458) (1993), this court finally laid the two theories charge to rest, noting: “[W]e have recently held that this statement of law does not accurately state the principle addressed and should never be given.” See also Kelly v. State, 212 Ga. App. 278 (442 SE2d 462) (1994).

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McBride v. State, 446 S.E.2d 193, 213 Ga. App. 857, 94 Fulton County D. Rep. 2267, 1994 Ga. App. LEXIS 744 (Ga. Ct. App. 1994).

446 S.E.2d 193 (McBride v. State) — published by Counsel Stack Legal Research, free access to 12M+ legal documents.

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