Opinion
A98A0447.
DECIDED FEBRUARY 24, 1998.
Aggravated assault, etc. Terrell Superior Court. Before Judge Bishop.
Ralph L. Phillips, for appellant.
Charles M. Ferguson, District Attorney, for appellee.
Charles Riggins appeals his conviction of aggravated assault, possession of a firearm during the commission of a felony, discharge of firearm near a public highway, and carrying a pistol without a license. He enumerates two errors. Held:
1. On appeal the evidence must be viewed in the light most favorable to support the verdict, and appellant no longer enjoys a presumption of innocence; moreover, an appellate court determines evidence sufficiency and does not weigh the evidence or determine witness credibility. Grant v. State, 195 Ga. App. 463, 464 (1) ( 393 S.E.2d 737). The evidence so viewed is as follows: Appellant was living with Tameika McDaniel, as husband and wife. McDaniel went to the Elks Club and departed with the victim Larry Thomas. Appellant found Tameika sitting in Thomas' car and parked his car so as to block Thomas' car. McDaniel exited Thomas' car and walked toward her friend's apartment. Appellant exited his car carrying a pistol. He threatened to shoot McDaniel if she knocked on her friend's door. Appellant approached the driver's side of Thomas' car, broke the door glass, and fired one shot into the car striking Thomas on the middle finger of his left hand. (Note: Both the victim and an eye witness who was delivering newspapers in the area, testified that appellant was armed with a pistol when he approached the victim's car, that he broke the glass in the victim's car and fired his pistol).) Thomas grabbed a gun and returned fire shooting appellant twice in the abdomen. Appellant fled the scene seeking medical assistance. Thomas remained at the crime scene until the EMT and law enforcement officers arrived. 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 offenses of which he was found guilty. Jackson v. Virginia, 443 U.S. 307 ( 99 S.C. 2781, 61 L.Ed.2d 560).
2. The trial court did not err in denying appellant's motion for a new trial. The motion was based on the claim of newly discovered evidence, that is, the newly expected testimony of McDaniel that Thomas had lied when he testified, appellant was not armed that evening, and that she had seen Thomas' hand on the night of the incident and the position of the wound showed he had shot himself in the back of the hand. (Note: An EMT testified that he could not determine the direction from which the bullet entered the victim's hand.) During a previous hearing on a motion to dismiss, McDaniel had elected to assert her spousal privilege not to testify against appellant, her common law husband. However, she was present in the court-room during trial, and she informed appellant's counsel of her contentions and prospective testimony after the jury began deliberation. However, appellant's counsel did not affirmatively seek on the record to re-open its case and have the jury recalled from its deliberations.
The standard for granting a new trial based on newly discovered evidence is the six-requirements test of Timberlake v. State, 246 Ga. 488, 491 (1) ( 271 S.E.2d 792). "All six requirements must be complied with to secure a new trial." Id.
Appellant has failed to show that the evidence has come to his knowledge since the trial. Rather, it is admitted in judicio in appellant's brief (see generally, State v. Griffin, 204 Ga. App. 459 ( 419 S.E.2d 528)) that the evidence became known to appellant's attorney "after the jury received evidence and began deliberations." The evidence at issue is not newly discovered within the meaning of Timberlake, supra. "`[E]ven after jury deliberations have begun, the trial court, in the sound exercise of discretion, may reopen the evidence and allow the admission of new evidence.'" Gardner v. State, 263 Ga. 197, 198 (2) ( 429 S.E.2d 657); Childs v. State, 257 Ga. 243, 255 ( 357 S.E.2d 48); State v. Roberts, 247 Ga. 456, 458 ( 277 S.E.2d 644). Appellant's remedy was immediately to make a proffer of the evidence to the trial court and the circumstances surrounding its belated discovery, and to move for the re-opening of the evidence. Appellant failed to seek this remedy. "`"A party cannot during the trial ignore what he thinks to be an injustice, taking his chance on a favorable verdict, and complain later.'" Hollis v. State, 191 Ga. App. 525, 528 (5) ( 382 S.E.2d 145); accord Bruce v. State, 259 Ga. 798, (2) (b) ( 387 S.E.2d 886).
Additionally, having examined the trial record and the hearing transcript on appellant's new trial motion, we find appellant has also failed to show that the testimony of appellant's common law wife, McDaniel, probably would produce a different result should a new trial be conducted. For each of these independent reasons, we find that the trial court did not err in denying appellant's motion for new trial based on the alleged newly discovered testimony of McDaniel.
Judgment affirmed. Smith, J., and Senior Appellate Judge Harold R. Banke concur.