Porter v. State

Court of Appeals of Georgia

Porter v. State

356 S.E.2d 703, 182 Ga. App. 624, 1987 Ga. App. LEXIS 1745

CourtCourt of Appeals of Georgia

DecidedApril 14, 1987

Docket73870

StatusPublished

Cited by5 cases

This text of 356 S.E.2d 703 (Porter 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.

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Porter v. State, 356 S.E.2d 703, 182 Ga. App. 624, 1987 Ga. App. LEXIS 1745 (Ga. Ct. App. 1987).

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Opinion

Pope, Judge.

Willie Porter brings this appeal from his conviction of armed robbery. Held:

1. Defendant first contends that the trial court erred while instructing the jury by constantly referring to defendant and his co-defendant (Steven Scott) plurally and not making it clear that under the evidence the jury might acquit one defendant though the other was convicted. The trial court merely indicated that the jury must return a separate verdict for each defendant. Because the evidence against defendant and his co-defendant was not identical, and because each defendant presented a separate alibi defense, the trial court’s plural reference to the defendants, combined with the failure to charge distinctly that the conviction of one defendant did not necessarily require the conviction of the other, was error. Abrams v. State, 121 Ga. 170 (6) (48 SE 965) (1904). Compare Johnson v. State, 232 Ga. 61 (6) (205 SE2d 190) (1974); Coggeshall v. State, 161 Ga. 259 (8) (131 SE 57) (1925). See also Lofton v. State, 121 Ga. 172 (1) (48 SE 908) (1904), and McDaniel v. State, 74 Ga. App. 5 (2b) (38 SE2d 697) (1946), wherein the record discloses no basis for finding one defendant guilty and the other not guilty. Accordingly, defendant is entitled to a new trial.

2. In light of our holding in Division 1, supra, defendant’s second enumeration challenging the trial court’s purported denial of his motion for complete recordation of all proceedings is moot.

3. We find any error in failing to provide counsel for defendant (an indigent) at the commitment hearing to be harmless beyond a reasonable doubt. Accord State v. Hightower, 236 Ga. 58 (222 SE2d 333) (1976); Mitchell v. State, 173 Ga. App. 560 (1) (327 SE2d 537) (1985).

4. From the evidence of record, any rational trier of fact could have found defendant guilty as charged beyond a reasonable doubt. Accord Maxwell v. State, 163 Ga. App. 606 (295 SE2d 865) (1982); Sims v. State, 159 Ga. App. 692 (2) (285 SE2d 65) (1981).

*625 Decided April 14, 1987. J. Robert Joiner, for appellant. Lewis R. Slaton, District Attorney, Joseph J. Drolet, Wendy L. Shoob, Benjamin H. Oehlert III, Assistant District Attorneys, for appellee.

Judgment reversed.

Birdsong, C. J., and Deen, P. J., concur.

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Pope, Judge.

Willie Porter brings this appeal from his conviction of armed robbery. Held:

1. Defendant first contends that the trial court erred while instructing the jury by constantly referring to defendant and his co-defendant (Steven Scott) plurally and not making it clear that under the evidence the jury might acquit one defendant though the other was convicted. The trial court merely indicated that the jury must return a separate verdict for each defendant. Because the evidence against defendant and his co-defendant was not identical, and because each defendant presented a separate alibi defense, the trial court’s plural reference to the defendants, combined with the failure to charge distinctly that the conviction of one defendant did not necessarily require the conviction of the other, was error. Abrams v. State, 121 Ga. 170 (6) (48 SE 965) (1904). Compare Johnson v. State, 232 Ga. 61 (6) (205 SE2d 190) (1974); Coggeshall v. State, 161 Ga. 259 (8) (131 SE 57) (1925). See also Lofton v. State, 121 Ga. 172 (1) (48 SE 908) (1904), and McDaniel v. State, 74 Ga. App. 5 (2b) (38 SE2d 697) (1946), wherein the record discloses no basis for finding one defendant guilty and the other not guilty. Accordingly, defendant is entitled to a new trial.

2. In light of our holding in Division 1, supra, defendant’s second enumeration challenging the trial court’s purported denial of his motion for complete recordation of all proceedings is moot.

3. We find any error in failing to provide counsel for defendant (an indigent) at the commitment hearing to be harmless beyond a reasonable doubt. Accord State v. Hightower, 236 Ga. 58 (222 SE2d 333) (1976); Mitchell v. State, 173 Ga. App. 560 (1) (327 SE2d 537) (1985).

4. From the evidence of record, any rational trier of fact could have found defendant guilty as charged beyond a reasonable doubt. Accord Maxwell v. State, 163 Ga. App. 606 (295 SE2d 865) (1982); Sims v. State, 159 Ga. App. 692 (2) (285 SE2d 65) (1981).

*625 Decided April 14, 1987. J. Robert Joiner, for appellant. Lewis R. Slaton, District Attorney, Joseph J. Drolet, Wendy L. Shoob, Benjamin H. Oehlert III, Assistant District Attorneys, for appellee.

Judgment reversed.

Birdsong, C. J., and Deen, P. J., concur.

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356 S.E.2d 703, 182 Ga. App. 624, 1987 Ga. App. LEXIS 1745, Counsel Stack Legal Research, https://law.counselstack.com/opinion/porter-v-state-gactapp-1987.

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