Beck v. The State., 181 Ga. App. 681, 353 S.E.2d 610 (1987)
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Murray M. Silver, for appellant.
Defendant was convicted of armed robbery, OCGA
1. Defendant argues that the evidence was insufficient to authorize his conviction. Defendant was employed by a security agency as a guard for Mrs. Winner's. When the restaurant closed after 2:00 a.m., defendant accompanied the manager to make a night deposit of the day's receipts. On arriving at the bank, defendant got out, went to the front of the vehicle, looked around, turned to face the rear and announced to the manager clearance to get out. When she stepped out, however, a masked gunman armed with a rifle or shotgun grabbed her and placed the weapon at her head. The robber ordered defendant to drop his weapon. Defendant lowered his pistol and dropped the cartridges on the ground. After repeated commands defendant tossed his pistol into "the bushes." The robber seized the receipts, threw the manager back into the car and fled. Defendant then, after a search, reclaimed his weapon and returned to the car for ammunition after which he set off in pursuit of the robber. According to the manager, defendant's actions were haphazard and dilatory. When defendant returned he had fired five rounds. Defendant first stated he had fired in answer to the robber's shooting at him, but then explained he said this to avoid trouble and had actually fired at a fleeing figure who did not respond.
A witness for the state, defendant's superior at the security agency, testified that before the robbery defendant stated that he and another manager named "Melvin" were planning a robbery of the restaurant and inquired if the witness wanted to participate. The witness was not sure if defendant was serious but reported the incident to his superior. After the robbery the witness carried a concealed tape recorder while conversing with defendant, who made several incriminatory admissions about his planning and participation in the robbery. The defendant testified he was joking and that the recording was not his voice and contained numerous omissions and modifications.
Credibility of witnesses and weight given their testimony falls within the jury's ambit. Bragg v. State,
On review of defendant's motion for new trial, we view the evidence in the light most favorable to the verdict. Adams v. State,
2. The second enumeration addresses the denial of defendant's motion for mistrial during his counsel's argument to the jury.
This incident arose after the prosecuting attorney made the third of three objections to various statements made by defense counsel in oral argument. The jury was sent out and defense counsel complained about the interruptions. After colloquy between counsel and the court, the prosecuting attorney offered to submit additional requests to charge concerning the use of a former indictment against defendant. The court offered both counsel an opportunity to submit requests and gave defense counsel the opportunity to see any proposed addition to the charge during the recess and to address argument to it.
After recess defendant moved for a mistrial because of the twenty-five minute interruption of his argument. No mention was made that he was unaware of the judge's proposed charge or that he was unable to argue effectively because he did not understand what would be charged.
On appeal defendant contends that by adding to the charge the trial court violated OCGA
Defendant cannot successfully urge error upon different bases than that urged in the trial court. Kingston v. State,
3. The last error enumerated is that the court erroneously permitted the district attorney to read law to the jury after defendant's argument.
The distinction as to the proper point to read law is no longer viable since counsel may no longer read law to the jury. Conklin v. State,
In assessing harm, as Conklin pointed out, "[c]ounsel have every right to refer to applicable law during closing argument (i.e., law that the court is going to give in charge)." See Garrison v. Rich's,
Lewis R. Slaton, District Attorney, Richard E. Hicks, Joseph J. Drolet, Wendy Shoob, Assistant District Attorneys, for appellee.
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