Wynn v. State

Court of Appeals of Georgia

Wynn v. State

246 S.E.2d 346, 146 Ga. App. 315, 1978 Ga. App. LEXIS 2333

CourtCourt of Appeals of Georgia

DecidedApril 28, 1978

Docket55513

StatusPublished

Cited by1 cases

This text of 246 S.E.2d 346 (Wynn 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

Wynn v. State, 246 S.E.2d 346, 146 Ga. App. 315, 1978 Ga. App. LEXIS 2333 (Ga. Ct. App. 1978).

Pincite

Opinion

Birdsong, Judge.

Wynn appeals from his conviction, by a jury, of rape and armed robbery. Held:

1. Wynn argues that his victim’s identification of him was tainted and therefore inadmissible. We have examined both the individual photographs shown to the victim and the line-up photograph and conclude that [316]*316neither procedure violated the "totality of the circumstances” test enunciated in Simmons v. United States, 390 U. S. 377 (88 SC 967, 19 LE2d 1247)(1967). See Heyward v. State, 236 Ga. 526 (224 SE2d 383). Wynn’s contentions concerning the sufficiency of identifying information are controlled adversely by Styles v. State, 139 Ga. App. 128 (1) (228 SE2d 28).

2. Wynn’s character was not improperly placed in issue by any of the testimony which he alleges was improper.

3. Wynn’s contention that a warrant was required to obtain his fingerprints is without merit. Tiller v. State, 238 Ga. 67 (3) (230 SE2d 874); Strong v. State, 231 Ga. 514 (202 SE2d 428); Creamer v. State, 229 Ga. 511 (192 SE2d 350). Wynn also complains of prejudice arising from the fact that a fingerprint initially described by the state as having been found on a basin was in fact removed from a doorknob. This information was revealed at trial, where the trial court explicitly inquired of Wynn’s counsel whether a continuance would be necessary, and if so, the reasons therefor. Wynn’s counsel gave no response to this latter inquiry, and no continuance was granted. Motions for continuance are within the discretionary ambit of the trial judge and, absent a clear showing of abuse, this court will not reverse the judgment of the court below. Keller v. State, 128 Ga. App. 129, 131 (195 SE2d 767). No abuse of discretion has been shown and the trial court did not err in admitting the fingerprint evidence.

4. At the conclusion of the trial, the following statement was made by the trial court: "Counsel for the defendant has attracted my attention to the fact that in my closing comments to you my last remark was that I recommended that your first order of business was to elect a foreman of the jury. He was attracted my attention [sic] that there are eleven women on the jury and one man; therefore in effect I would be directing you to appoint the male as the foreman of the jury.” While it is unnecessary for the trial court to alert the jury as to the identity of objecting counsel, it cannot be said that doing so deprived Wynn of a fair and impartial jury, or otherwise constituted reversible error. See Johnson v. State, 238 Ga. 59, 61 (230 SE2d 869).

Submitted February 28, 1978 Decided April 28, 1978 Rehearing denied June 20, 1978 John Thomas Chason, Robert L. Ridley, for appellant. Lewis R. Slaton, District Attorney, Joseph J. Drolet, Donald J. Stein, Thomas W. Hayes, Assistant District Attorneys, for appellee.

Judgment affirmed.

Bell, C. J., and Shulman, J., concur.

Free access — add to your briefcase to read the full text and ask questions with AI

Birdsong, Judge.

Wynn appeals from his conviction, by a jury, of rape and armed robbery. Held:

1. Wynn argues that his victim’s identification of him was tainted and therefore inadmissible. We have examined both the individual photographs shown to the victim and the line-up photograph and conclude that [316]*316neither procedure violated the "totality of the circumstances” test enunciated in Simmons v. United States, 390 U. S. 377 (88 SC 967, 19 LE2d 1247)(1967). See Heyward v. State, 236 Ga. 526 (224 SE2d 383). Wynn’s contentions concerning the sufficiency of identifying information are controlled adversely by Styles v. State, 139 Ga. App. 128 (1) (228 SE2d 28).

2. Wynn’s character was not improperly placed in issue by any of the testimony which he alleges was improper.

3. Wynn’s contention that a warrant was required to obtain his fingerprints is without merit. Tiller v. State, 238 Ga. 67 (3) (230 SE2d 874); Strong v. State, 231 Ga. 514 (202 SE2d 428); Creamer v. State, 229 Ga. 511 (192 SE2d 350). Wynn also complains of prejudice arising from the fact that a fingerprint initially described by the state as having been found on a basin was in fact removed from a doorknob. This information was revealed at trial, where the trial court explicitly inquired of Wynn’s counsel whether a continuance would be necessary, and if so, the reasons therefor. Wynn’s counsel gave no response to this latter inquiry, and no continuance was granted. Motions for continuance are within the discretionary ambit of the trial judge and, absent a clear showing of abuse, this court will not reverse the judgment of the court below. Keller v. State, 128 Ga. App. 129, 131 (195 SE2d 767). No abuse of discretion has been shown and the trial court did not err in admitting the fingerprint evidence.

4. At the conclusion of the trial, the following statement was made by the trial court: "Counsel for the defendant has attracted my attention to the fact that in my closing comments to you my last remark was that I recommended that your first order of business was to elect a foreman of the jury. He was attracted my attention [sic] that there are eleven women on the jury and one man; therefore in effect I would be directing you to appoint the male as the foreman of the jury.” While it is unnecessary for the trial court to alert the jury as to the identity of objecting counsel, it cannot be said that doing so deprived Wynn of a fair and impartial jury, or otherwise constituted reversible error. See Johnson v. State, 238 Ga. 59, 61 (230 SE2d 869).

Submitted February 28, 1978 Decided April 28, 1978 Rehearing denied June 20, 1978 John Thomas Chason, Robert L. Ridley, for appellant. Lewis R. Slaton, District Attorney, Joseph J. Drolet, Donald J. Stein, Thomas W. Hayes, Assistant District Attorneys, for appellee.

Judgment affirmed.

Bell, C. J., and Shulman, J., concur.

Cite This Page — Counsel Stack

Bluebook (online)

246 S.E.2d 346, 146 Ga. App. 315, 1978 Ga. App. LEXIS 2333, Counsel Stack Legal Research, https://law.counselstack.com/opinion/wynn-v-state-gactapp-1978.

Opinion

Related

Cite This Page — Counsel Stack