Culbertson v. State, 386 S.E.2d 894 (Ga. Ct. App. 1989). · Go Syfert
Culbertson v. State, 386 S.E.2d 894 (Ga. Ct. App. 1989). Cases Citing This Book View Copy Cite
36 citation events (19 in the last 25 years) across 2 distinct courts.
Strongest positive: Gaines v. the State (gactapp, 2016-11-01)
Treatment trajectory · 1990 → 2026 · click a year to view as-of
1990 2008 2026
Top citers, strongest first. 13 distinct citers.
discussed Cited as authority (rule) Gaines v. the State
Ga. Ct. App. · 2016 · confidence medium
The court’s decision in such matters will not be reversed absent a manifest abuse of discretion.”) (citation and punctuation omitted); Carr v. State, 267 Ga. 547, 551 (2) ( 480 SE2d 583 ) (1997) (trial court did not abuse its discretion in concluding, pursuant to OCGA § 5-6-41 (f), that nothing material was omitted from trial record); Washburn v. Sardi’s Restaurants, 191 Ga. App. 307, 311 (7) ( 381 SE2d 750 ) (1989) (trial court did not abuse its discretion in denying appellant’s motion to supplement the record, particularly where “[i]t cannot be said that anything material to the a…
discussed Cited as authority (rule) Barnes v. the State (2×)
Ga. Ct. App. · 2016 · confidence medium
But even prior to the United States Supreme Court’s holding in Carter, the Georgia Supreme Court held in Clay v. State, 236 Ga. 398, 399 ( 224 SE2d 14 ) (1976), that when a defendant makes a timely request for a charge that his failure to testify in his own defense shall not create a presumption against him, “it is error for the trial judge to fail to give it,” and the Court found that such an error “requires a new trial.” See Murphy v. State, 270 Ga. 880, 880 ( 515 SE2d 148 ) (1999); Culbertson v. State, 193 Ga. App. 9, 11 (6) ( 386 SE2d 894 ) (1989).
discussed Cited as authority (rule) Jones v. State
Ga. Ct. App. · 2009 · confidence medium
Adams and Doyle, JJ., concur. 1 OCGA § 16-6-22.1 (b). 2 OCGA § 16-6-22.2 (b). 3 OCGA § 16-6-4 (a). 4 Short v. State, 234 Ga. App. 633, 634 (1) ( 507 SE2d 514 ) (1998). 5 Domingues v. State, 277 Ga. 373, 374 (2) ( 589 SE2d 102 ) (2003). 6 Hutcheson v. State, 246 Ga. 13, 13-14 (1) ( 268 SE2d 643 ) (1980). 7 Prince v. State, 277 Ga. 230, 235 (3) ( 587 SE2d 637 ) (2003). 8 McPherson v. State, 274 Ga. 444, 449 (6) (c) ( 553 SE2d 569 ) (2001). 9 Pace v. State, 271 Ga. 829, 835 (10) ( 524 SE2d 490 ) (1999). 10 Barnes v. State, 269 Ga. 345, 351 (8) ( 496 SE2d 674 ) (1998). 11 Kent v. State, 179 Ga.…
discussed Cited as authority (rule) People v. Rhodus
Colo. · 1994 · confidence medium
See Wood, 299 U.S. at 133 , 57 S.Ct. at 179 (sustaining act of Congress which removed the disqualification of government employees from jury service on criminal and other cases in which the government is a party); Frazier v. United States, 335 U.S. 497, 514 , 69 S.Ct. 201, 210 , 93 L.Ed. 187 (1949) (upholding conviction by a jury comprised solely of government employees); see also United States v. Lawson, 670 F.2d 923, 926 (10th Cir.1982) (stating that “[t]he courts have long rejected contentions that government employees must automatically be stricken from juries considering violations of f…
examined Cited as authority (rule) Culbertson v. State (3×)
Ga. Ct. App. · 1991 · confidence medium
Culbertson v. State, 193 Ga. App. 9, 11 (6) ( 386 SE2d 894 ).
cited Cited "see" Mark Rice v. North Georgia Medical Center
Ga. Ct. App. · 2017 · signal: see · confidence high
See Fasse v. Sexton, 193 Ga. App. 9 ( 387 SE2d 17 ) (1987).
discussed Cited "see" In Re JWB (2×)
Ga. Ct. App. · 2009 · signal: see · confidence high
See Culbertson v. State, 193 Ga.App. 9, 10-11 , 386 S.E.2d 894 (1989).
discussed Cited "see" In the Interest of J. W. B. (2×)
Ga. Ct. App. · 2009 · signal: see · confidence high
See Culbertson v. State, 193 Ga. App. 9, 10-11 ( 386 SE2d 894 ) (1989).
discussed Cited "see" In Re Tyb (2×)
Ga. Ct. App. · 2007 · signal: see · confidence high
See Culbertson v. State, 193 Ga.App. 9, 10-11 , 386 S.E.2d 894 (1989).
discussed Cited "see" In the Interest of T. Y. B. (2×)
Ga. Ct. App. · 2007 · signal: see · confidence high
See Culbertson v. State, 193 Ga. App. 9, 10-11 ( 386 SE2d 894 ) (1989).
discussed Cited "see" Murphy v. State (2×)
Ga. Ct. App. · 1998 · signal: accord · confidence high
Accord Culbertson v. State, 193 Ga. App. 9, 11 (6) ( 386 SE2d 894 ).
discussed Cited "see" Gude v. State (2×)
Ga. Ct. App. · 1994 · signal: see · confidence high
See Culbertson v. State, 193 Ga. App. 9 (1) ( 386 SE2d 894 ); Thomas, supra. It may seem to us unlikely that appellant would get such a “chance” to run, for the only unlock-able door out of the courtroom was difficult to exit in any circumstance, but the trial court is more familiar with its courtroom than we are.
discussed Cited "see" Williams v. State (2×)
Ga. Ct. App. · 1993 · signal: see · confidence high
See Culbertson v. State, 193 Ga. App. 9 ( 386 SE2d 894 ) (1989). (h) Appellant argues that his counsel failed to cross-examine the co-defendant about his plea agreement.
Culbertson
v.
the State
A89A1058.
Court of Appeals of Georgia.
Sep 25, 1989.
386 S.E.2d 894
Cheney & Cheney, Curtis V. Cheney, Jr., for appellant., Dupont K. Cheney, District Attorney, David C. Walker, Assistant District Attorney, for appellee.
Carley, McMurray, Beasley.
Cited by 15 opinions  |  Published
Carley, Chief Judge.

After a jury trial, appellant was found guilty of five counts of aggravated assault upon a correctional officer and one count of possession of a weapon by an inmate. He appeals from the judgments of conviction and sentences entered by the trial court on the guilty verdicts and from the denial of his motion for new trial.

1. That appellant appeared at trial wearing prison clothing is not a basis for reversal, inasmuch as the evidence adduced at trial otherwise revealed that he was a prisoner. See Spurlin v. State, 228 Ga. 763, 765 (4) (187 SE2d 856) (1972); Sharpe v. State, 119 Ga. App. 222, 223 (1) (166 SE2d 645) (1969). “Where, as in this case, the prisoner was being tried for the offense of [possession of a weapon by an inmate] and for the offense [s] of [aggravated assault upon a correctional officer by use of the weapon], the jury of necessity was in[*10] formed of the prisoner’s prior incarceration.” Wiggins v. Hopper, 235 Ga. 85 (1) (218 SE2d 826) (1975). Because appellant had escaped on four prior occasions, we likewise “find no abuse of discretion in requiring [him] to appear in leg irons. [Cit.] ” Thomas v. State, 171 Ga. App. 306, 308 (4) (319 SE2d 511) (1984). See also Martinez v. State, 189 Ga. App. 69, 72 (2) (375 SE2d 123) (1988).

2. Several potential jurors were employees of the Georgia State Prison. Because the crimes had occurred at the prison, appellant challenged these potential jurors for cause. The trial court’s failure to sustain these challenges is enumerated as error.

The “limited police powers [of correctional officers] do not necessitate the imputation of possible bias as in the instance of full-time police officers.” Kent v. State, 179 Ga. App. 131, 132 (345 SE2d 669) (1986). Merely that the potential jurors and the victims were employed at the same prison is not dispositive. See Jordan v. State, 247 Ga. 328, 340 (6) (fn. 16) (276 SE2d 224) (1981). The trial court did not err in overruling the challenges for cause.

3. The denial of appellant’s motion for a directed verdict as to the charge of possession of a weapon by an inmate is enumerated as error.

Appellant was charged with possession of a “water bug.” The evidence showed that a “water bug” is a homemade device for heating liquid by use of an electric current. The evidence also showed that appellant used a “water bug” to bring a liquid to a boil and then threw the boiling liquid at the officers. “Water bugs” are considered contraband at the prison, having been used to cause serious injury on prior occasions.

OCGA § 42-5-18 (b) provides that it is unlawful for an inmate, “to be in possession of a gun, pistol, or any other weapon... . .” (Emphasis supplied.) A “weapon” is defined as “[a]n instrument of offensive or defensive combat, or anything used, or designated to be used, in destroying, defeating or injuring a person. . . .” Black’s Law Dictionary (5th ed. 1979). Appellant contends that only the hot liquid that he threw, not the “water bug” that he used to heat the liquid, was a weapon. This contention has no more merit than the contention that only bullets, not guns, are weapons. “[A]lmost any implement . . . [can] be intended or used as a weapon. . . . We do not find the jury’s apparent conclusion that the [‘water bug’] was a weapon even [though not thrown itself] unreasonable under these circumstances.” United States v. Barnes, 569 F2d 862, 863 (1) (5th Cir. 1978).

4. Appellant moved for a directed verdict as to one of the aggravated assault counts, urging that the evidence failed to show that the victim had been placed “in reasonable apprehension of immediately receiving a violent injury” from the “water bug.” The denial of this motion is enumerated as error. From the officer’s testimony, however,[*11] a jury could have found that he was placed in reasonable apprehension of immediately receiving a violent injury “unless he retreat[ed] to secure his safety.” Johnson v. State, 158 Ga. App. 432, 433 (280 SE2d 856) (1981). Accordingly, it was not error to deny the motion for a directed verdict.

Decided September 25, 1989. Cheney & Cheney, Curtis V. Cheney, Jr., for appellant. Dupont K. Cheney, District Attorney, David C. Walker, Assistant District Attorney, for appellee.

5. In closing argument, counsel for the State made the following comment: “There has been no explanation really offered as to why it was done other than to harm the officers.” Appellant enumerates as error the trial court’s failure to declare a mistrial based upon this remark.

A mere comment on the accused’s failure to rebut the State’s evidence is not impermissible. See Jones v. State, 187 Ga. App. 132, 134 (2) (369 SE2d 509) (1988). See also Ranger v. State, 249 Ga. 315, 318 (3) (290 SE2d 63) (1982); Russell v. State, 184 Ga. App. 657, 658 (1) (362 SE2d 392) (1987). Under the circumstances and applying the appropriate test of Turner v. State, 258 Ga. 97, 101 (4) (365 SE2d 822) (1988), we hold that the trial judge properly denied a mistrial.

6. The trial court did, however, commit reversible error when it refused to give a written request to the effect that appellant’s failure to testify should not give rise to a presumption against him. Clay v. State, 236 Ga. 398 (224 SE2d 14) (1976). Compare Bigby v. State, 146 Ga. App. 500, 501 (3) (246 SE2d 496) (1978).

Judgments reversed.

McMurray, P. J., and Beasley, J., concur.