Tubman v. State

365 S.E.2d 879, 185 Ga. App. 731, 1988 Ga. App. LEXIS 228

• Court: Court of Appeals of Georgia
• Decided: February 3, 1988
• Docket: 75416
• Status: Published

Opinions

Sognier, Judge.

Tubman appeals from his conviction of aggravated assault with a motor vehicle, operating a motor vehicle without insurance, and failure to stop at or return to the scene of an accident.

1. Appellant alleges error in denial of his motion for a continuance until new jurors could be empaneled after one of the prospective jurors, on voir dire, under oath and in the presence of other jurors, allegedly stated that appellant appeared to be the person who had robbed the juror and his girl friend. While the voir dire examination was not recorded in the transcript, the transcript indicates that the juror in question stated he was prejudiced because the defendant “looked like” the man who robbed his girl friend about a year ago. On the basis of this statement appellant requested that the court continue the case and bring in another panel from which to select a jury. The court stated that without a further showing of the impact on the remaining forty-six jurors it could not grant appellant’s motion; however, the court stated that appellant was free to inquire on voir dire as to the effect of the statement on the other jurors. The juror who made the statement was then replaced by another juror.

The grant of a motion for continuance is within the sound discretion of the trial judge, and this court will not interfere unless it is shown clearly that the trial judge abused his discretion. Terry v. State, 160 Ga. App. 433 (1) (287 SE2d 360) (1981). While this court has held that statements by jurors on voir dire examination which are clearly prejudicial require empaneling a new jury, Lingerfelt v. State, 147 Ga. App. 371, 372 (1) (249 SE2d 100) (1978); Moore v. State, 156 Ga. App. 92, 93 (1) (274 SE2d 107) (1980), this does not mean that all statements which might be prejudicial require such action. See, e.g., Stone v. State, 170 Ga. App. 234, 235 (1) (316 SE2d 836) (1984); Giles v. State, 253 Ga. 144, 145 (2) (317 SE2d 527) (1984). The juror’s statement here, that appellant “looked like” the person who robbed his girl friend, was not a statement that appellant did, in fact, rob the juror’s girl friend. As such, we do not find the statement clearly prejudicial. Rather, we find the statement more akin to the statement in Stone, supra, where a prospective juror stated that “ T had a similar incident and I’m not sure if it is the same man or not.’ ” In holding that it was not error to deny Stone’s motion for a continuance, we stated: “The uncertain and subjective nature of the statement at issue left it within the discretion of the trial court, and we find no abuse of that discretion here.” In the absence of anything in the transcript indicating that the juror’s remark contaminated the other prospective jurors, we find our holding in Stone to be applicable to the facts of the instant case. Accordingly, we find no abuse of discretion by the trial court in denying appellant’s request for a continuance until a new jury could be empaneled.

2. Appellant contends the trial court erred by denying his request to charge on circumstantial evidence. He argues that the evidence against him was all circumstantial, and thus, such a charge was required. We do not agree, as there was direct evidence that immediately before appellant’s car struck the victim, appellant was driving the vehicle. There was also direct evidence that immediately after the accident, appellant was identified as the person who got out of his car, removed the license plate therefrom and departed on foot. Where there is some direct evidence involved in the case it is not error to refuse to charge on circumstantial evidence. Houston v. State, 180 Ga. App. 267, 269 (4) (349 SE2d 228) (1986).

Judgment affirmed.

McMurray, P. J., concurs. Beasley, J., concurs specially.