Wilburn v. State, 405 S.E.2d 889 (Ga. Ct. App. 1991). · Go Syfert
Wilburn v. State, 405 S.E.2d 889 (Ga. Ct. App. 1991). Cases Citing This Book View Copy Cite
106 citation events (17 in the last 25 years) across 2 distinct courts.
Treatment trajectory · 1991 → 2026 · click a year to view as-of
1991 2008 2026
Cited for
199 Ga. App. at 669 Litigant's duty to stand ground on appeal19 citing cases“an appellant cannot complain of a result his own procedure or conduct aided in causing.”2 citing courts quote it
  • In Re Toj, 672 S.E.2d 14 (Ga. Ct. App. 2008).published 2 cites
    (defense counsel provided opportunity to review medical records not produced by the state until the day of trial)
  • In the Interest of T. O. J., 672 S.E.2d 14 (Ga. Ct. App. 2008).published 2 cites
    See, e.g., Duvall v. State, 273 Ga. App. 143, 144 (2) ( 614 SE2d 234 ) (2005) (defense counsel provided opportunity to review videotape that state failed to produce during discovery); Smith v. State, 257 Ga. App. 88, 90-91 (3) ( 570 SE2d 4…
  • Duvall v. State, 614 S.E.2d 234 (Ga. Ct. App. 2005).published
    Andrews, P. J., and Mikell, J., concur. 1 Williams v. State, 217 Ga. App. 636, 638 (3) ( 458 SE2d 671 ) (1995) (citation and punctuation omitted). 2 OCGA§ 16-6-4 (a) (“Aperson commits the offense of child molestation whenhe or she does any…
  • Ruff v. State, 598 S.E.2d 362 (Ga. Ct. App. 2004).published
    Without the consent of the defendant, no witness shall be permitted to testify for the state whose name does not appear on the list of witnesses as furnished to the defendant unless the prosecuting attorney shall state that the evidence so…
  • Jackson v. State, 564 S.E.2d 865 (Ga. Ct. App. 2002).published
    “when a written scientific report is furnished late, the appropriate remedy ‘perhaps’ is to grant a continuance or recess upon timely request by the defendant”
  • Vogleson v. State, 552 S.E.2d 513 (Ga. Ct. App. 2001).published 3 cites
    Wilburn v. State, 199 Ga. App. 667, 669 (2) ( 405 SE2d 889 ) (1991).
  • Mowery v. State, 507 S.E.2d 821 (Ga. Ct. App. 1998).published
    Wilburn v. State, 199 Ga. App. 667, 669 (3) ( 405 SE2d 889 ) (1991).
  • Elmore v. State, 501 S.E.2d 215 (Ga. 1998).published
    See Iona v. State, 260 Ga. 83, 84 (3) ( 389 SE2d 754 ) (1990) ; Wilburn v. State, 199 Ga. App. 667, 669 (3) ( 405 SE2d 889 ) (1991) .
  • Moody v. State, 436 S.E.2d 545 (Ga. Ct. App. 1993).published
    “This matter, as well as the length of time granted, rests with the trial judge in the exercise of his discretion.” (Citation omitted.) Wilburn v. State, 199 Ga. App. 667, 669-670 (3) ( 405 SE2d 889 ) (1991).
  • Holtapp v. City of Fayetteville, 431 S.E.2d 403 (Ga. Ct. App. 1993).published
    “An appellant cannot complain of a result his own procedure or conduct aided in causing. [Cits.]”
Show 9 more citing cases
  • Hite v. State, 430 S.E.2d 125 (Ga. Ct. App. 1993).published 2 cites
    See generally Tatum v. State, 259 Ga. 284, 287 (3) ( 380 SE2d 253 ); Easterwood v. State, 259 Ga. 164 (2) ( 377 SE2d 857 ); Wilburn v. State, 199 Ga. App. 667, 669 (2) ( 405 SE2d 889 ); Hawkins v. State, 195 Ga. App. 739 (2) ( 395 SE2d 251…
  • McGee v. State, 423 S.E.2d 666 (Ga. Ct. App. 1992).published
    Lawton v. State, 259 Ga. 855, 856 (2) ( 388 SE2d 691 ); Wilburn v. State, 199 Ga. App. 667, 669 (2) ( 405 SE2d 889 ). 3.
  • Morgan v. State, 419 S.E.2d 313 (Ga. Ct. App. 1992).published 2 cites
    Wilburn v. State, 199 Ga. App. 667, 669 (2) ( 405 SE2d 889 ); Hawkins v. State, 195 Ga. App. 739 (2) ( 395 SE2d 251 ). 2.
  • Sanders v. State, 419 S.E.2d 24 (Ga. Ct. App. 1992).published 2 cites
    Moreover, the conduct and trial tactics of appellant's counsel in failing to pursue the bias inquiry following the court's sustaining of the State's objection and its giving of a curative-type instruction, aided in the restriction of appel…
  • Ferrell v. State, 416 S.E.2d 903 (Ga. Ct. App. 1992).published 2 cites
    “[a]n appellant cannot complain of a result his own procedure or conduct aided in causing”
  • Clayton v. State, 418 S.E.2d 610 (Ga. Ct. App. 1992).published
    Wilburn v. State, 199 Ga. App. 667, 669 (2) ( 405 SE2d 889 ). (b) Regarding the issue of newly discovered evidence, appellants have failed to identify in their brief the evidence in issue or cite this court to the transcripts where this ev…
  • Baker v. State, 416 S.E.2d 295 (Ga. Ct. App. 1992).published
    Wilburn v. State, 199 Ga. App. 667, 669 ( 405 SE2d 889 ). (c) In answer to the jury’s third question, the trial court reopened the evidence and allowed the jury to view the video, despite the fact that the trial court had, during trial, re…
  • State v. Pattee, 411 S.E.2d 751 (Ga. Ct. App. 1991).published
    Wilburn v. State, 199 Ga. App. 667, 669 ( 405 SE2d 889 ); see Hawkins v. State, 195 Ga. App. 739 (2) ( 395 SE2d 251 ).
  • Shannon v. State, 424 S.E.2d 51 (Ga. Ct. App. 1992).published 2 cites
    See Wilburn v. State, 199 Ga. App. 667, 669-670 (3) ( 405 SE2d 889 ) (1991). 2.
199 Ga. App. at 668 Admissibility of excited utterances and prior statements4 citing caseswas 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…opening of page *668 (no citing court says what it cites this page for)
  • Davis v. State, 484 S.E.2d 284 (Ga. Ct. App. 1997).published
    “One cannot complain of trial procedure utilized by the trial court which his own trial tactics or conduct procured or aided in causing.” Williams v. State, 205 Ga. App. 445, 446 (2) ( 422 SE2d 309 ) (1992); Wilburn v. State, 199 Ga. App.…
  • Melton v. State, 474 S.E.2d 640 (Ga. Ct. App. 1996).published
    Wilburn v. State, 199 Ga. App. 667, 668 (2) ( 405 SE2d 889 ) (1991) (physical precedent only); Johnson v. State, 158 Ga. App. 333 ( 280 SE2d 379 ) (1981).
  • Reed v. State, 474 S.E.2d 264 (Ga. Ct. App. 1996).published
    Wilburn v. State, 199 Ga. App. 667, 668 (2) ( 405 SE2d 889 ) (1991). 4.
  • Delay v. State, 444 S.E.2d 140 (Ga. Ct. App. 1994).published
    Wilburn v. State, 199 Ga. App. 667, 668 (2) ( 405 SE2d 889 ) (1991). 4.
Other citing cases5 with no pin cite or quoted language on record
Retrieving the full opinion text from the archive…
Wilburn
v.
the State
A91A0328.
Court of Appeals of Georgia.
May 7, 1991.
Published opinion
405 S.E.2d 889
1991 Ga. App. LEXIS 640
Mark V. Cloud, for appellant., Lewis R. Slaton, District Attorney, Carl P. Greenberg, Joseph Drolet, George J. Robinson, Jr., Assistant District Attorneys, for ap-pellee.
Birdsong, Cooper, Pope.
Cited by 51 opinions  |  Published

Lead Opinion

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] was 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] or 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] exercise of his discretion. See Wade v. State, 258 Ga. 324, 326 (6) (368 SE2d 482). Contrary to appellant’s assertion, this case is distinguishable from Taylor v. State, 172 Ga. App. 408, 410 (2) (323 SE2d 212) where the facts involved were held to be tantamount to failing altogether to furnish a report. Here appellant never requested a continuance or a recess, yet the trial court sua sponte directed a 15-minute recess following appellant’s objection to the medical reports, which objection was based on the grounds the State failed to furnish timely the documents to the defense as requested. Following the recess, the State was given permission to reopen its case to present certain witness testimony; thereafter, appellant requested and was given permission to recall the victim for further cross-examination, but did not attempt to question the victim regarding any matter in the medical records in question. Further, at no time following the court-directed recess did appellánt request either a continuance or an additional recess. “ ‘ “A party cannot during the trial ignore what he thinks to be an injustice, take his chance on a favorable verdict, and complain later.” Joyner v. State, 208 Ga. 435, 438 (67 SE2d 221).’ Sprayberry v. State, 174 Ga. App. 574 (1), 575 (330 SE2d 731).” Hollis v. State, 191 Ga. App. 525, 528 (5) (382 SE2d 145). Under the attendant cir- j cumstances, we find the trial court did not abuse its discretion by failing, sua sponte, to allow appellant an additional time period inj which to examine the medical records.

Decided May 7, 1991. Mark V. Cloud, for appellant. Lewis R. Slaton, District Attorney, Carl P. Greenberg, Joseph [*671] Drolet, George J. Robinson, Jr., Assistant District Attorneys, for ap-pellee.

[*670] Appellant’s other assertions also are without merit.

Judgment affirmed.

Cooper, J., concurs. Pope, J., concurs specially.

Concurrence

Pope, Judge,

concurring specially.

I concur in the result and I concur fully in Divisions 1 and 3.| However, I cannot concur fully in all that is said in Division 2.1 thin! counsel did preserve his objection to the court’s erroneous restrictior of his cross-examination regarding the immunity issue. However, anj error was harmless. The record shows counsel for Wilburn and for the State clearly established the victim’s reluctance to testify against Wil-J burn, his friend. Whether the testimony resulted specifically from use immunity or not, the jury was given evidence indicating the victim’s bias in the matter. The error committed by the trial court in failing tq remember the grant of immunity and to permit questioning on it thuj did not contribute to the verdict.