Quick v. State

401 S.E.2d 758, 198 Ga. App. 353, 1991 Ga. App. LEXIS 37

• Court: Court of Appeals of Georgia
• Decided: January 17, 1991
• Docket: A90A1984
• Status: Published

Opinions

McMurray, Presiding Judge.

Defendant Quick appeals his convictions of two counts of armed robbery, two counts of aggravated assault, and one count of possession of a firearm during commission of a felony. Held:

1. The first enumeration of error complains of the trial court’s denial of motions for mistrial predicated on the district attorney’s cross-examination of defendant. However, following defendant’s refusal to answer certain questions the trial court, acting on the State’s motion to strike, directed the jury to disregard every question that had been asked of defendant and to disregard every answer given by defendant. The grant of the motion to strike defendant’s testimony has not been enumerated as error. Furthermore, defendant did not renew his objection following the instructions to the jury. Under these circumstances, even if the State’s questions were improper, the error was cured by the trial court’s instructions. Hilburn v. State, 166 Ga. App. 357, 358 (2) (304 SE2d 480).

2. The second enumeration of error contends the jury improperly considered certain extra-record evidence. In support of defendant’s motion for mistrial on the grounds that evidence which had not been admitted was sent out with the jury, defendant elicited testimony of the bailiff of the trial court. This testimony and colloquy of the court and counsel show that apparently the prosecutors were in possession of three bags containing items relevant to the case sub judice. Some of these items had been introduced into evidence and some had not. At the end of the first day of trial all of the items were consolidated into one paper bag for overnight storage. The following day, the jury became conscious that the paper bags contained items which had not been present during the trial. When the bailiff delivered to the jury the exhibits, which had been admitted into evidence, jurors requested access to the remaining items in the bag but were told by the bailiff, pursuant to the trial court’s direction, that they had been provided with all that the law allowed. The trial court overruled defendant’s motion for mistrial. Then the jury, through its foreperson, inquired of the trial court concerning access to the remaining contents of the paper bag. The trial court responded that the sack was not placed in evidence, that the only thing placed in evidence was a jacket which was carried in the bag, and that the jury was not to be concerned with anything that may have been in the bag except the jacket. At this point, the foreperson disclosed that a list of items found in defendant’s pocket (the list consisted of jewelry, $25 cash, a pen, and a syringe) had gone out with the jury. The list was recovered from the foreperson and the jury was directed to “forget the list.” Defendant renewed his motion for mistrial.

“Where a motion for mistrial is made on the ground of inadmissible evidence illegally placed before the jury, the corrective measure to be taken by the trial court is largely a matter of discretion, and where a proper corrective action is taken and no indication of an abuse of that discretion appears, the refusal to grant a mistrial is not error. Osteen v. State, 83 Ga. App. 378, 381 (63 SE2d 692).” Waters v. State, 168 Ga. App. 918, 920 (310 SE2d 774). See also Jones v. State, 139 Ga. App. 643 (1), 644 (229 SE2d 121). In view of the corrective actions taken by the trial court, there does not appear to be any reasonable possibility that the list, which was briefly placed in possession of the jury, contributed to defendant’s conviction. See Bobo v. State, 254 Ga. 146 (327 SE2d 208).

3. The trial court’s charge to the jury stating the substance of OCGA § 16-2-6 was not improper or burdenshifting in violation of Sandstrom v. Montana, 442 U. S. 510 (99 SC 2450, 61 LE2d 39). See Wilson v. Jones, 251 Ga. 23 (1) (302 SE2d 546).

4. The fourth enumeration of error complains of the denial of defendant’s motion for discharge and acquittal under OCGA Title 42, Chapter 6. First, we note that insofar as defendant’s motion sought to rely upon the provisions of OCGA § 17-7-170, such is unfounded as there was no demand for speedy trial made in the trial court. Hunley v. State, 105 Ga. 636 (31 SE 543). Insofar as defendant’s motion seeking acquittal was predicated upon an alleged failure to try defendant within two terms of a request by defendant pursuant to OCGA § 42-6-3 (a), the motion was properly denied since the only sanction provided for the’ State’s failure to comply with the requirements of OCGA § 42-6-3 (a) is that the detainers based upon pending indictments or accusations shall be stricken or dismissed.

5. Defendant’s final enumeration of error complains of the denial of his motion for mistrial predicated on communications in the courtroom between the sheriff and several jurors during a recess in the case. “Where an unauthorized contact or communication is made to a juror, a valid conviction is not otherwise vitiated unless the defendant was actually prejudiced by the communication. [Cits.]” Dudley v. State, 179 Ga. App. 252, 255 (3) (345 SE2d 888) (1986). “[W]here such an improper communication occurs, there is a presumption of harm and the burden is on the State to show the lack thereof. [Cits.]” Jones v. State, 258 Ga. 96 (366 SE2d 144).

In the case sub judice, the State presented the testimony of the sheriff that the topic of the conversation at issue was the poultry business, a subject having no relevance to the case sub judice, and that no mention was made of the case sub judice. The trial court was authorized to conclude that the State had satisfied its burden to show lack of harm to defendant. Jones v. State, 258 Ga. 96, supra.

Judgment affirmed.

Sognier, C. J., and Carley, J., concur specially.