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ABRAMS v. THE STATE.
A97A2224.
RUFFIN, Judge.
Armed robbery, etc. Richmond Superior Court. Before Judge Mulherin.
A jury found Darnell Abrams guilty of armed robbery and possession of a firearm during the commission of a crime. Abrams appeals, challenging the admission of certain testimony, the trial court's limitation on his closing argument, and the sufficiency of the evidence to support the convictions. For reasons which follow, we affirm.
The police then took Abrams to jail where he made a second voluntary statement admitting his involvement in the robbery, but denying that he had a gun. Abrams also voluntarily gave a third statement to the police later that evening. Although the police recorded this third statement on audiotape, and the State played it for the jury, the court reporter did not transcribe the audiotape, and we do not have that statement for appellate review.
Abrams testified at trial and admitted entering John's Party Center, raising a gun, and demanding money. Abrams claimed, however, that a man named Holmes or Thess forced him to commit the robbery by holding Abrams at gunpoint. No other witness testified to seeing this second man during the robbery, although the police saw a second man, a passenger in Abrams' car, after the robbery.
1. In his first enumeration of error, Abrams argues that the trial court improperly admitted hearsay testimony. On appeal, we will uphold the trial court's admission of this evidence unless it is clearly erroneous. Cf. Stovall v. State, 216 Ga. App. 138 (453 SE2d 110) (1995). The record shows that a police investigator testified about the identification of Abrams by Hardin and Alexander. Over objection, the investigator testified that Hardin told him that Abrams "was the right size and the clothing was right." The investigator also testified that Alexander provided similar information. We find no error.
"A law enforcement officer is permitted to testify to a vocal fact of identification witnessed by himself without its being subject to a hearsay objection." (Citation and punctuation omitted.) Neal v. State,211 Ga. App. 829, 830 (1) (b) (440 SE2d 717) (1994). Accordingly, based on Neal, the trial court properly admitted the investigator's testimony. The trial court also correctly admitted the investigator's statements because Hardin and Alexander testified about their identification of Abrams at the trial and they both were available for Abrams to cross-examine. See Williams v. State, 224 Ga. App. 665 (2) (482 SE2d 415) (1997); Cuzzort v. State, 254 Ga. 745 (334 SE2d 661) (1985) (purpose of the hearsay rule satisfied when declarant is in court and available for cross-examination). We therefore find no error in the trial court's ruling.
2. Next, Abrams contends that the trial court improperly limited his closing argument. On appeal, we review the record to determine if the trial court abused its discretion by limiting the scope of defense counsel's closing argument. Morgan v. State, 267 Ga. 203 (1) (476 SE2d 747) (1996). The trial court prohibited Abrams' counsel from highlighting for the jury a variance between the allegations of the indictment and the proof at trial. Hardin testified that Abrams stole money from his corporation, John's Party Center, and not from him personally, but the State alleged in the indictment that Abrams took Hardin's property. The trial court did not abuse its discretion in prohibiting Abrams from making this improper argument.
"[O]ne charged with theft 'will not be heard to raise nice and delicate questions as to the title of the article stolen.' Cit.]" Holbrook v. State, 209 Ga. App. 301, 303 (2) (433 SE2d 616) (1993). "Thus, the ownership of personal property, in an indictment for [armed robbery], may be laid in a bailee having possession of the property when it was stolen. . . ." (Citations and punctuation omitted.) Jones v. State, 156 Ga. App. 646 (276 SE2d 50) (1980). The indictment was sufficient as a matter of law, id., and the trial court should not have allowed Abrams to imply otherwise to the jury. Accordingly, the trial court correctly prohibited this argument. See Robinson v. State, 215 Ga. App. 125 (3) (449 SE2d 679) (1994). Thus, this enumeration is without merit.
3. In his final enumeration of error, Abrams argues that the evidence was insufficient to authorize the verdict. " 'On appeal from a criminal conviction, the evidence must be viewed in the light most favorable to the verdict, and the defendant no longer enjoys the presumption of innocence; moreover, an appellate court does not weigh the evidence or determine . . . witness credibility but only determines whether the evidence is sufficient under the standard of Jackson v. Virginia, 443 U. S. 307 (99 SC 2781, 61 LE2d 560) [(1979)]. Conflicts in the testimony of the witnesses . . . [are] a matter of credibility for the jury to resolve.' " Porter v. State, 224 Ga. App. 276, 279 (2) (480 SE2d 291) (1997). Consequently, "[t]he evidence is sufficient as a matter of law if, when viewed in the light most favorable to the verdict, a rational trier of fact could find all the essential elements of the crimes. [Cit.]" Gable v. State, 222 Ga. App. 768, 769 (1) (476 SE2d 66) (1996).
Virginia, supra.
Daniel J. Craig, District Attorney, Charles R. Sheppard, Assistant District Attorney, for appellee.
Stanley C. House, for appellant.
DECIDED NOVEMBER 4, 1997.
Thursday May 21 04:13 EDT


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