Whitt v. State

452 S.E.2d 125, 215 Ga. App. 704, 94 Fulton County D. Rep. 3771, 1994 Ga. App. LEXIS 1351
CourtCourt of Appeals of Georgia
DecidedNovember 15, 1994
DocketA94A1501
StatusPublished
Cited by14 cases

This text of 452 S.E.2d 125 (Whitt 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
Whitt v. State, 452 S.E.2d 125, 215 Ga. App. 704, 94 Fulton County D. Rep. 3771, 1994 Ga. App. LEXIS 1351 (Ga. Ct. App. 1994).

Opinions

McMurray, Presiding Judge.

Defendant was charged, along with co-defendant Veasey, with the offense of theft by shoplifting and with being a recidivist. The evidence adduced at a jury trial reveals the following:

During the afternoon of February 2, 1993, defendant and co-defendant Veasey entered a retail establishment known as “Linens ‘N Things,” seeking to exchange merchandise allegedly purchased at another “Linens ‘N Things” store. After defendant and co-defendant Veasey browsed the store for about 30 minutes, Assistant Manager Elizabeth Wilkes observed defendant holding two “black scarf valances” and she decided to offer assistance. However, as Ms. Wilkes approached defendant, he “moved very quickly down the aisle [and co-defendant] Veasey moved in front of [defendant] facing him.” Ms. Wilkes then observed defendant’s jacket “moving up” and noticed [705]*705that defendant was no longer holding the “black scarf valances.” Defendant and co-defendant Veasey refused Ms. Wilkes’ offer of assistance and “walked a straight line up to the front register area. . . .” Ms. Wilkes did not see the “black scarf valances” in the area where defendant and co-defendant Veasey had been standing so she “followed them [and] watched their whole exchange transaction.”

Ms. Wilkes noted that neither defendant nor co-defendant Veasey presented the “black scarf valances” for exchange and observed “a noticeable bulge in the back of [defendant’s] jacket.” Sheila Mitchell, another store employee, also observed the unusual bulge so she surreptitiously brushed defendant’s back to investigate. Ms. Mitchell noticed that the bulge seemed to be something other than a part of defendant’s body and concluded that defendant may be concealing stolen merchandise.

After defendant and co-defendant Veasey left the store, a cashier at the “Linens ‘N Things” store contacted the police and reported the apparent crime. Later that afternoon, the police apprehended the defendant and co-defendant Veasey .in their get-away car and found two “black scarf valances” under a seat in the vehicle. In the meantime, Ms. Mitchell checked the store’s inventory records and confirmed that two “black scarf valances” were missing. The police summoned Ms. Mitchell to the scene (the roadside where defendant and co-defendant Veasey were apprehended) and she identified the suspects and the stolen merchandise.

The jury found defendant and co-defendant Veasey guilty of the crime charged. Defendant filed this appeal after the denial of his motion for new trial. Held:

1. Defendant contends in his first enumeration that the jury selection process was tainted because the jury panels heard the trial court instruct the sheriff to “ ‘bring the people up’ ” while he was in the courthouse jail and while his attorney was in the rest room. Defendant reasons that this utterance amounted to an improper reference to his incarceration at the time of trial. This argument is not supported by the record.

Defense counsel challenged the jury panels before a jury was sworn, alleging that an attorney (“Mr. Morgan”) informed him that the jury panels heard (while defense counsel was outside the courtroom) the trial judge instruct the sheriff “something to the effect that, well, tell the — the Deputy Sheriff needs to be told to bring the people up. ...” The trial court assured defense counsel that Mr. Morgan’s alleged report was inaccurate and invited defense counsel to proffer evidence to the contrary. Defense counsel stated that Mr. Morgan was not available, but informed the trial court that he would “hopefully preserve this and have Mr. Morgan file an affidavit when I appealed.” The trial judge later explained: “What I said to the jury [706]*706was, the Sheriff informed me that it was going to be about fifteen to twenty minutes before we can begin. Let’s take a short recess. That’s what I said to the jury.”

“We have consistently warned counsel that this court cannot consider factual representations contained in appellate briefs when such evidence does not appear on the record. See Coweta Bonding Co. v. Carter, 230 Ga. 585 (1) (198 SE2d 281); Konscol v. Konscol, 151 Ga. App. 696 (1) (261 SE2d 438).” Hudson v. State, 185 Ga. App. 508 (1) (364 SE2d 635). In the case sub judice, there is no evidence supporting defendant’s claim that the jury panels heard the trial court instruct the sheriff that “the Deputy Sheriff needs to be told to bring the people up. . . .” In fact, there is no evidence refuting the trial court’s assurance that such a directive was not uttered while defense counsel was outside the courtroom. However, defendant questions the trial court’s veracity in his brief on appeal, stating that defendant “is a little confused that the [trial] court would not acknowledge the truth [and that the] only reason [he] hasn’t any more support [for his contention] is that the trial court would not allow [him] to call [co-defendant] Veasey or [co-defendant Veasey’s trial attorney,] Mr. Koman[, at the hearing on his motion for new trial].”

We have examined the entire transcript of the hearing on defendant’s motion for new trial and find that defense counsel offered Mr. Roman’s testimony as proof of unrecorded events which allegedly transpired during closing argument. Defense counsel never offered the testimony of co-defendant Veasey or Mr. Roman in support of defendant’s claim that the trial court instructed the sheriff that “the Deputy Sheriff needs to be told to bring the people up. . . .” The only evidence offered supporting this allegation may be found in the following statement asserted by defense counsel at the hearing on defendant’s motion for new trial: “Okay. So we also contend that what happened was that co-defendant Veasey was brought up from the jail and my client[, defendant,] was erroneously or mistakenly left down at the jail and the Court made some reference to, that the Sheriff told me that it’s going to be fifteen to twenty minutes to bring the people up, and that based on talking with several attorneys and also another Defendant in the courtroom the prospective jurors could well have gotten the idea that my client was already incarcerated, which we contend detracted from his right to an impartial jury because if they knew that he was already incarcerated his presumption of innocence would be impaired.” However, the trial court then asked defense counsel for proof supporting his allegations (i.e., “Do you have affidavits from any of those attorneys to that effect?”) and defense counsel responded, “I do not have affidavits at this point.” These circumstances not only reveal that the trial court did not block defendant’s attempt to perfect the record with regard to events which transpired [707]*707in the presence of the jury panels, they reveal that the trial court gave defense counsel ample opportunity to present evidence supporting his view that the trial court’s recollection is blurred. It appears that defense counsel simply could not (or would not) present evidence supporting defendant’s claim that the jury panels were tainted by the trial court’s directives while defense counsel was outside the courtroom. In any event, the decision of the trial judge as to unrecorded events which transpired at trial is final and is not subject to review. OCGA § 5-6-41 (g). Consequently, we are bound by the trial court’s recollection of events which transpired while defense counsel was outside the court. See Pahnke v. State, 203 Ga. App. 88 (416 SE2d 324).

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Whitt v. State
452 S.E.2d 125 (Court of Appeals of Georgia, 1994)

Cite This Page — Counsel Stack

Bluebook (online)
452 S.E.2d 125, 215 Ga. App. 704, 94 Fulton County D. Rep. 3771, 1994 Ga. App. LEXIS 1351, Counsel Stack Legal Research, https://law.counselstack.com/opinion/whitt-v-state-gactapp-1994.