Wilburn v. State

405 S.E.2d 889, 199 Ga. App. 667, 1991 Ga. App. LEXIS 640
CourtCourt of Appeals of Georgia
DecidedMay 7, 1991
DocketA91A0328
StatusPublished
Cited by51 cases

This text of 405 S.E.2d 889 (Wilburn 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
Wilburn v. State, 405 S.E.2d 889, 199 Ga. App. 667, 1991 Ga. App. LEXIS 640 (Ga. Ct. App. 1991).

Opinions

Birdsong, Presiding Judge.

Appellant Herbert B. Wilburn appeals his judgment of conviction and sentence of aggravated assault. The indictment accused him of [shooting Bernard Warren with a dangerous weapon, to-wit, a pistol. ¡Held:

1. Appellant asserts the trial court erred in denying his motion for directed verdict of acquittal. We disagree. As a general rule a motion for directed verdict of acquittal should be granted only where [there is no conflict in the evidence and the evidence demands a ver-fcliet of acquittal as a matter of law. Taylor v. State, 252 Ga. 125, 127 (1) (312 SE2d 311). However, the proper test when sufficiency of the evidence is challenged by a motion for directed verdict of acquittal is the “reasonable doubt” test of Jackson v. Virginia, 443 U. S. 307 (99 SC 2781, 61 LE2d 560); Humphrey v. State, 252 Ga. 525, 527 (314 SE2d 436).

The victim’s identification of “Nard,” which is the nickname sed by appellant, as the man who shot him was admissible as part of be res gestae. The statement and the circumstances surrounding its tterance qualified the statement as a res gestae statement; it clearly [668]*668was an excited utterance made shortly after the shooting (even prior to the arrival of medical personnel) and while the victim was laboring under the effects of his gunshot wound. Compare Robinson v. State, 197 Ga. App. 600, 601 (2) (399 SE2d 94); see generally Agnor, Ga. Evidence (2d ed.), §§ 11-32 through 11-34. Further, the prior pretrial statement of the victim wherein he identified appellant as his assailant was admissible as substantive evidence. Compare Gibbons v. State, 248 Ga. 858 (286 SE2d 717) with Cuzzort v. State, 254 Ga. 745 (334 SE2d 661). Once a declaration is made, both the State and the defense are accorded some measure of protection from the erratic or unpredictable witness in that his prior declaration can be considered substantively where, as here, the witness appears and is subject to cross-examination, notwithstanding variant testimony from the stand. Gibbons, supra at 864 (a).

Review of the transcript in a light most favorable to the jury’s verdict reveals ample evidence from which any rational trier of fact could have found beyond a reasonable doubt that appellant was guilty of the offense charged. Jackson v. Virginia, supra.

2. Appellant asserts the trial court erred in limiting cross-examination of a State’s witness. Appellant’s counsel attempted to examine the victim about a court order granting the victim “use and derivative j use immunity.” After the victim denied being granted immunity, de-, fense counsel asked the trial judge for the written order, but the trial judge denied having participated in the granting of such. Appellant | claims this response improperly limited his right of cross-examination, and that cross-examination if unimpaired would have tended to! impeach the victim and to attack his credibility by exposing his mo-| tives for testifying.

The trial record includes a copy of an order, signed by the trialj judge on the day of trial but filed three days later, containing a grant of use and derivative use immunity to the victim. Pretermitting whether the voluntary denial of the existence of the order by the tria| judge resulted in error is the question of whether the issue has beei adequately preserved for appellate review. We find it has not.

The trial record contains the following colloquy between defens( counsel and trial judge: “[DEFENSE COUNSEL]: Judge, do yoi have the order granting immunity in this? THE COURT: I hav<| none. This court has not participated in such a thing. [DEFENS1 COUNSEL]: Judge, if I’m mistaken about that, then I withdraw th| question.”

Thereafter, appellant abandoned his inquiry as to the existencj of a grant of immunity to the victim. Although appellant’s counsc obviously attempted to condition the withdrawal of the question upoj his being mistaken, in fact, as to the order’s existence, a condition/ withdrawal of a question is ineffective. A question either is withdraw! [669]*669or it is not. The effect of appellant’s conduct was the withdrawal of his immunity question. Thus, appellant failed to stand his ground and to make a specific objection to the failure to produce the immunity document. At no point did the trial court rule appellant could not continue to explore the immunity issue on cross-examination. No matter how erroneous a ruling or voluntary response of a trial court might be, a litigant cannot submit to the ruling or otherwise acquiesce in the holding or response and then complain of the same on appeal; he must stand his ground. Smith v. State, 192 Ga. App. 768, 771 (2) (386 SE2d 530), and cases cited therein.

Additionally, counsel’s attempted conditional response, rather than stating the basis for belief that the immunity order existed, and perhaps thereby refreshing the trial court’s memory of the existence thereof, tended to lull the trial court into believing its recollection was correct as to the nonexistence of such grant. An appellant cannot complain of a result his own procedure or conduct aided in causing. Hawkins v. State, 195 Ga. App. 739 (2) (395 SE2d 251); compare Horan v. Pirkle, 197 Ga. App. 151, 152 (397 SE2d 734) (acquiescence by silence in the trial court’s evaluation of the evidence received).

3. Appellant asserts the trial court erred in admitting certain medical records, as these documents were scientific reports not provided within ten days prior to trial as required by OCGA § 17-7-211. The documents were not provided appellant until the day of trial. Examination of the medical records reveals that while most entries therein contained would not qualify as being entries pertaining to scientific reports within the meaning of OCGA § 17-7-211, see, e.g., Conyers v. State, 260 Ga. 506, 508 (4) (397 SE2d 423), certain of the entries contained within these records would appear to so qualify.

Appellant argues for the first time on appeal that descriptions in the medical records of the victim’s injuries and treatment were highly ¡inflammatory and prejudicial. “ ‘On appeal only issues properly raised before the trial court will be considered.’ ” Rigenstrup v. State, 197 Ga. App. 176, 179 (2) (398 SE2d 25). This issue has not been preserved for appeal.

I Appellant’s reliance on Wester v. State, 260 Ga. 228 (391 SE2d 765) is misplaced, as Wester involved the State’s failure to provide [defendant with a copy of the scientific report while this case involves la situation where a copy was provided albeit on the day of trial.

I Exclusionary rules are not favored in the law, as they detract Irom the search for truth. Only when the prosecutor fails altogether Ko furnish a written scientific report, under OCGA § 17-7-211, does the exclusionary rule apply; when a written scientific report is fur-liished late, the appropriate remedy “perhaps” is to grant a continuance or recess upon timely request by the defendant. This matter, as |vell as the length of time granted, rests with the trial judge in the [670]*670exercise of his discretion.

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Bluebook (online)
405 S.E.2d 889, 199 Ga. App. 667, 1991 Ga. App. LEXIS 640, Counsel Stack Legal Research, https://law.counselstack.com/opinion/wilburn-v-state-gactapp-1991.