Bleckley v. State

Pope, Chief Judge. Defendant Thomas Carlton Bleckley was charged with aggra vated assault and convicted of the lesser offense of simple battery. H« appeals from the judgment and sentence of conviction, as well as iron the denial of his motion and amended motion for new trial. 1. Defendant first argues that the trial court erred in denying his motion for mistrial after a witness for the State commented while or direct examination that one of the defendant’s children stated, “[de fendant] is killing my mama.” Defendant contends that a mistrial wa¡ mandated because the prosecutor intentionally elicited this imprope: hearsay. However, our review of the transcript shows, and the tria court found, that the complained-of comment was unresponsive t< the question which preceded it, and in fact the witness had airead; answered the question posed by the State when she volunteered tb hearsay statement. The trial court informed the jury that the witnes had been admonished for volunteering the statement and instructe< the jury to disregard the statement. Moreover, there was some ques tion about whether the jury could even hear the improper commen when it was uttered. Under these circumstances, the trial court di< not abuse its discretion in denying the motion for mistrial. See, e.g Jones v. State, 212 Ga. App. 473 (442 SE2d 20) (1994); McDermott v. State, 183 Ga. App. 693 (359 SE2d 750) (1987). 2. Defendant next challenges the denial of his motion for mistru after the prosecutor improperly commented on the veracity of a dt fense witness. The prosecutor conceded the impropriety of the state ment, both at trial and on appeal, and the trial court informed th jury that the prosecutor admitted he should not have made the re mark, that the prosecutor had apologized to the court, and that the should disregard the comment. “ ‘In passing on a motion for mistrial because of an imprope statement of a prosecutor, the trial judge may take such action as i his judgment will prevent harm to the defendant, and a new trial wi not be granted unless it is clear that such action failed to eliminal the statement from consideration by the jury. (Cits.)’ [Cit.]” Foote State, 184 Ga. App. 900, 901 (2) (363 SE2d 180) (1987). “The refus, to grant a mistrial because of the improper remarks of the prosecute is within the discretion of the trial court pursuant to OCGA § 17-8 75, and the decision will not be disturbed on appeal absent manife abuse. [Cits.]” Henderson v. State, 182 Ga. App. 513, 520 (5) (35 SE2d 241) (1987). We have examined the statement here, which w¡ made by the prosecutor during an exchange with defense counsel co: cerning the admissibility of certain evidence, and find that it was nc as defendant argues, so prejudicial that it could not be cured by i *861 structions. Finding no manifest abuse of discretion in the denial of defendant’s motion for mistrial under the facts of this case, we conclude reversal is not required. 3. Defendant contends that the trial court erred in permitting a non-listed witness to testify over objection. The witness, a physician’s assistant who examined the victim, testified concerning the victim’s injuries. As defendant argues in his brief on appeal, the purpose of OCGA § 17-7-110 is to give defense counsel the opportunity to interview witnesses before trial. However, questioning by the trial court revealed that defense counsel did not interview any of the listed medical personnel who treated the victim prior to trial, and that the unlisted witness’ name appeared on the medical reports which were provided to defendant prior to trial. The record also reveals that counsel lid not request an opportunity to interview the unlisted witness prior ;o his testifying at trial. “[T]he proper remedy when a witness is jailed whose name was not on the list is to request a continuance, not ;he exclusion of the witness’ testimony. [Cit.]” Grace v. State, 210 Ga. App. 718, 721 (5) (437 SE2d 485) (1993). We thus find no merit to ;his enumeration. 4. Contrary to defendant’s fourth enumeration of error, the trial Court did not err in failing to give his requested charge on simple assault under the facts of this case. Arnett v. State, 245 Ga. 470, 472 (2) 265 SE2d 771) (1980); see also Haun v. State, 189 Ga. App. 884 (1) 377 SE2d 878) (1989); Mason v. State, 175 Ga. App. 497, 498 (2) (333 SE2d 694) (1985); Ross v. State, 173 Ga. App 313, 315 (8) (325 SE2d )19) (1985); Jarrard v. State, 152 Ga. App. 553, 554 (4) (263 SE2d 144) (1979). 5. Defendant enumerates as error the court’s charge on expert vitnesses, arguing that no witness had been qualified as an expert and hat the only witness to whom such charge could reasonably apply vas the physician’s assistant who was allowed to testify over defend-nt’s objection. However, upon objection to the charge, the trial court uled that the charge was applicable to the physician’s assistant who estified on behalf of the State. This enumeration is thus without nerit. Morris v. State, 159 Ga. App. 600, 601 (1) (284 SE2d 103) 1981). 6. Defendant urges on appeal that the trial court erred in denying ds motion for directed verdict on the aggravated assault charge be-ause the State failed to show the crime was committed with a deadly weapon. Because defendant was found guilty of the lesser offense of imple battery, this issue is moot. See Jones v. State, 213 Ga. App. 1, 12 (1) (444 SE2d 89) (1994); Cornwell v. State, 193 Ga. App. 561 1) (388 SE2d 353) (1989); Thomas v. State, 184 Ga. App. 131 (1) 161 SE2d 21) (1987). 7. Defendant assigns error to the fact that his motion for new *862 trial was heard by a judge other than the trial judge, arguing that he was prejudiced because the hearing judge was unfamiliar with what occurred at trial. Defendant also urges a violation of Uniform Superior Court Rule 3.3, governing the assignment of cases in the superior courts, and argues that his case had never been reassigned in accordance with that provision. However, either the trial judge or another judge who hears the motion for new trial has access to the trial transcript. Moreover, defendant points to no specific instance where he arguably was prejudiced by the failure of the trial judge to hear his motion and likewise makes no showing as to how he has been harmed by the fact that his case was not formally reassigned pursuant to Rule 3.3. It is axiomatic that harm as well as error must be shown, and having failed to make the requisite showing of harm in this case, reversal is not required. Decided October 18, 1994. T. Andrew Dowdy, for appellant. Michael H. Crawford, District Attorney, E. Jay McCollum, As sistant District Attorney, for appellee. 8. Construed so as to support the verdict, the evidence adduced at trial authorized defendant’s conviction for the lesser included offense of simple battery. Defendant’s eighth enumeration of error is thus without merit. Judgment affirmed. McMurray, P. J., and Smith, J., concur.