McDaniel v. State

Court of Appeals of Georgia

McDaniel v. State

243 S.E.2d 109, 145 Ga. App. 123, 1978 Ga. App. LEXIS 1886

CourtCourt of Appeals of Georgia

DecidedMarch 2, 1978

Docket55289

StatusPublished

Cited by2 cases

This text of 243 S.E.2d 109 (McDaniel 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

McDaniel v. State, 243 S.E.2d 109, 145 Ga. App. 123, 1978 Ga. App. LEXIS 1886 (Ga. Ct. App. 1978).

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Opinion

Bell, Chief Judge.

Defendant was convicted of robbery and his motion for new trial was denied. Held:

1. Defendant enumerates that the court erred in allowing the jury to disperse without adequate supervision. Prior to each recess, the trial judge admonished the jurors that they were not to discuss the case among themselves or with anyone else. These instructions were not objected to and defendant may not now complain that the trial judge’s instruction was inadequate to prevent unsupervised communications with third parties. Williams v. State, 232 Ga. 203, 206 (206 SE2d 37).

2. In his motion for new trial defendant asserted newly-discovered evidence as one of the grounds. Attached to his motion were affidavits attempting to show improper communication between a juror and a state’s witness. Neither defendant nor his counsel submitted any proof by affidavit that they were without knowledge or notice of the alleged misconduct of the juror prior to verdict. This defect is fatal to the claim of error that the trial court failed to hold an evidentiary hearing on being presented with the claimed newly-discovered evidence. It must be shown affirmatively by affidavit that neither defendant nor his counsel had any knowledge of this alleged misconduct prior to verdict before a new trial will be granted. Sharpe v. State, 164 Ga. 151 (138 SE 52).

Judgment affirmed.

Shulman and Birdsong, JJ., concur.

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Bell, Chief Judge.

Defendant was convicted of robbery and his motion for new trial was denied. Held:

1. Defendant enumerates that the court erred in allowing the jury to disperse without adequate supervision. Prior to each recess, the trial judge admonished the jurors that they were not to discuss the case among themselves or with anyone else. These instructions were not objected to and defendant may not now complain that the trial judge’s instruction was inadequate to prevent unsupervised communications with third parties. Williams v. State, 232 Ga. 203, 206 (206 SE2d 37).

2. In his motion for new trial defendant asserted newly-discovered evidence as one of the grounds. Attached to his motion were affidavits attempting to show improper communication between a juror and a state’s witness. Neither defendant nor his counsel submitted any proof by affidavit that they were without knowledge or notice of the alleged misconduct of the juror prior to verdict. This defect is fatal to the claim of error that the trial court failed to hold an evidentiary hearing on being presented with the claimed newly-discovered evidence. It must be shown affirmatively by affidavit that neither defendant nor his counsel had any knowledge of this alleged misconduct prior to verdict before a new trial will be granted. Sharpe v. State, 164 Ga. 151 (138 SE 52).

Judgment affirmed.

Shulman and Birdsong, JJ., concur.

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Bluebook (online)

243 S.E.2d 109, 145 Ga. App. 123, 1978 Ga. App. LEXIS 1886, Counsel Stack Legal Research, https://law.counselstack.com/opinion/mcdaniel-v-state-gactapp-1978.

Opinion

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