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Lawskills.com Georgia Caselaw
WITT v. THE STATE.
61442.
DEEN, Presiding Judge.
Armed robbery. Cherokee Superior Court. Before Judge Neville.
1. Witt was indicted and convicted for the offenses of armed robbery and possession of a firearm during the commission of a felony. The first two enumerations of error, which are considered together, contend that the court erred in allowing in evidence certain items which were the result of an illegal warrantless search, and in denying a motion for mistrial based on the failure to exclude evidence tending to show independent criminal offenses. The two grounds refer to the same factual situation as follows: Witt and a girl whom the landlord understood to be his wife rented the owner's trailer by the week, and paid in advance. On a day representing a "break even point" in their rent he was told by the girl that the couple intended moving out that evening. The witness waited until dark, went by the trailer, found it empty and the door unlocked and went in. Clothes and personal effects of the couple had been removed. The witness then noticed a television and other merchandise remaining in the trailer and called the police, to whom he gave permission as the owner to search the premises on the good faith supposition that the rental contract had terminated.
(b) The remaining "merchandise" found by the police turned out to be items stolen in other robberies, and there were references to them in explanation of the landlord's suspicions and call asking for a police inspection. The court charged: "I want to instruct you now specifically on testimony which came out once or twice during the trial of the case that has to do with an independent crime which [it] may have been suggested that the defendant, Mr. Witt, committed. Mr. Witt is on trial for only the crimes charged in the indictment and for no other crime. There was some statement made about some other property in a trailer, and my memory tells me a T.V. set or something like that was stolen in the trailer. Now, I instruct you that that has nothing to do with this case. Mr. Witt is on trial only for those offenses in the indictment. Whether or not there was a T.V. in the trailer, whether or not it was stolen or other property other than this money bag that you will have out with you, is completely irrelevant and beside the point in this case, and I instruct you to disregard that testimony." One remark which was volunteered referred to a stolen pistol found in defendant's vehicle, and was ruled out on objection. Another volunteered remark was that the television set pointed out by the owner to the detective was checked and found to be stolen, as to which statement no objection was made at the time, although it was the basis of a subsequent motion for mistrial. Later the defendant's girl friend, who had been placed on the stand by the state, volunteered that they returned to the trailer and saw that "the stuff from the burglaries, the T.V. set and stuff was gone, so we got in the car." The couple then fled, pursued by the police, and were forced to stop when the police car nudged the vehicle off the road. Again, no objection was offered at the time but the motion for mistrial was renewed and denied at the close of the evidence.
"Ordinarily, when illegal testimony is placed in evidence, it is not an abuse of discretion to refuse to grant a mistrial if sufficient corrective instructions are given in ruling the testimony out . . . This is true even if the illegal testimony has the effect of placing the defendant's character in issue . . . especially when the testimony is volunteered by the witness and not directly elicited by the solicitor." Cross v. State, 136 Ga. App. 400, 403 (221 SE2d 615) (1975). Since the items in question, referred to but not introduced in evidence, were the cause of the owner's original call to the police, and since specific and positive corrective instructions were given by the trial judge, the denial of the motion for mistrial was not an abuse of discretion.
3. A conversation between two detectives of Cherokee and Cobb Counties respectively was offered to explain the manner of linking up the money bag discovered in the defendant's trailer with the Pizza Hut robbery. Code 38-302. It was admissible for this purpose.
Frank C. Mills III, District Attorney, for appellee.
H. Clifton Conrad, Jr., Steven M. Campbell, for appellant.
DECIDED FEBRUARY 18, 1981.
Saturday September 6 11:31 CDT


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