Lumpkin v. State ( 1982 )

Smith, Justice.

This case comes to us by certiorari from the Court of Appeals. James Lumpkin was charged with three counts of burglary and one alternative count of theft by receiving stolen property. He appeals from his conviction on two of the burglary counts and the theft by receiving count, alleging as error two jury charges by the trial court. The Court of Appeals affirmed appellant’s conviction. Lumpkin v. State, 161 Ga. App. 53 (289 SE2d 274) (1982). We affirm, but for reasons different from those articulated by the court below.

1. The Court of Appeals did not address the merits of Lumpkin’s claim, but held that “[i]nasmuch as appellant made no objection during the trial to any of the purported errors now enumerated and since he did not reserve his right to later object to the jury charge, he has waived his right to raise these issues on appeal.” Although we agree with the result reached by the court below, we believe that its opinion incorrectly stated the law concerning procedural default by defense counsel.

The general rule in this state is that defendants in criminal cases are not required to except to the jury charge to preserve error for appeal. Code Ann. § 70-207 (a). The right to raise an erroneous charge on appeal may be lost only in certain well-defined instances, as where a defendant’s tactical trial plan justifies a finding of procedural default, State v. Stonaker, 236 Ga. 1 (222 SE2d 354) (1976), where error in the charge is induced by the actions of defense counsel, Edwards v. State, 235 Ga. 603 (221 SE2d 28) (1975), or where defense counsel in response to an inquiry by the trial judge plainly states that he has no objections to the charge as given. Jackson v. State, 246 Ga. 459 (271 SE2d 855) (1980). None of these circumstances is present in this case.

The Court of Appeals apparently felt that the following exchange, which took place after the jury was charged and sent to the jury room, supported a finding of procedural default: “The Court: I am pretty well satisfied until I got to the verdicts. Did I ball it up in any way there? District Attorney: No sir. Appellant’s attorney: No sir. Codefendant’s attorney: I have no objections.” We think the record is clear that the trial court was not inviting objections to his entire charge by this inquiry. The judge simply asked a question about the portion of the charge dealing with the form of the verdicts, and counsel’s reply of “No sir” related only to that portion of the charge. Inasmuch as the trial court’s question and counsel’s response concerned only the charge on the form of the verdict and not the entire charge as given, this exchange was not a proper basis for a finding of procedural default under the rule of Jackson v. State, supra, and the Court of Appeals erred in so holding.

Having concluded that no procedural default occurred, we must now address the errors in the charge enumerated by Lumpkin on appeal.

2. Appellant contends that the trial judge’s charge defining the offense of theft by receiving stolen property was erroneous. The court charged the jury as follows: “Now, a person commits the offense of theft by receiving stolen property when he either receives, disposes of or retains stolen property which he knows or should have known was stolen...” (Emphasis supplied.)¹ Count IV of the indictment charged Lumpkin with “disposing of’ stolen property only. Appellant argues that under Walker v. State, 146 Ga. App. 237 (246 SE2d 206) (1978), the charge was prejudicial because the jurors may have mistakenly believed that they could convict him if any of the three alternative methods of committing the offense described by the charge was established by the evidence at trial. This contention is without merit.

In the Walker case, the Court of Appeals held that it was reversible error “to charge that a crime may be committed by either of two methods, when the indictment charges it was committed by one specific method, and then charge the jury that they may convict the defendant if they find he committed the offense by a method other than the specific type charged in the indictment.” Id. at 240. The court there correctly held that where no remedial instructions were given, the charge was erroneous as a matter of law because of a fatal variance between the proof at trial and the indictment returned by the grand jury. Id. at 244.

Appellant contends that Walker controls the present case. We disagree. There is one important distinction between the charge in Walker and the charge in this case. Here, as in Walker, the trial judge began his charge by reciting the statutory definition of the offense;² unlike the court in Walker, however, he then limited the jury’s consideration to the specific method of committing the offense, “disposing of’ stolen property, which was charged in the indictment. Referring to the defendant by name, the court painstakingly set out the elements of the crime of disposing of stolen property “as charged . . . in this indictment.” This remedial charge effectively cured any possible prejudice to the appellant arising from the earlier, more general charge.

We therefore find no error. The charge, when considered in its entirety, fairly instructed the jurors that they could convict the defendant only of the offense with which he was charged in the indictment. “While the specific portion of the charge of which complaint is made when torn asunder and considered as a disjointed fragment may be objectionable, when put together and considered as a whole, the charge is perfectly sound.” Flannigan v. State, 139 Ga. App. 590, 591 (229 SE2d 98) (1976).

Decided September 23, 1982.

3. Appellant also urges as error a statement made by the trial judge during the introductory portion of his jury charge. In ¿n attempt to simplify the multiple-count indictment for the jurors, the judge stated: “Now, there are one, two, three, four charges against one or both of these Defendants contained in this eight charge indictment. To better enable you to follow the issues that will be submitted to you with respect to [co-defendant] Broadnax and Lumpkin I have checked in the left of each of the offenses in which they are involved the offenses which you are concerned with.” (Emphasis supplied.) Citing Stephenson v. State, 40 Ga. 291 (1869), appellant contends that the trial court improperly expressed an opinion as to his guilt by stating that the appellant was “involved” in the offenses for which he was on trial.³

We agree that the trial judge’s choice of words was unfortunate. But we cannot agree that the portion of the charge objected to by appellant rises to the level of reversible error. Following the charge which appellant enumerates as error, the judge gave a lengthy remedial instruction in which he stated: “Now ladies and gentlemen, if during the course of this trial I have said or done anything that has indicated, intimated or suggested or implied in any way that I have any opinion as to... what your verdict should be... any such action on my part was entirely unintended and should be completely and utterly wiped out of your minds and disregarded by you in arriving at your verdict because these matters are all matters that are entrusted exclusively to you for your determination, uninfluenced by anything that I may have said or done during the course of the trial.” Under the circumstances of this case, we are convinced that this corrective instruction rendered harmless any prejudice to appellant which may have resulted from the court’s earlier inadvertent verbal error. Godbee v. State, 232 Ga. 259, 263-64 (206 SE2d 432) (1974); Dortch v. State, 158 Ga. App. 233 (279 SE2d 526) (1981).

Judgment affirmed.

All the Justices concur, except Weltner, J., who dissents. David R. Montgomery, for appellant. Harry N. Gordon, District Attorney, for appellee.

1 This portion of the trial court’s charge followed verbatim the language of Ga. Code Ann. § 26-1806, which states that “[a] person commits theft by receiving stolen property when he receives, disposes of, or retains stolen property which he knows or should have known was stolen unless the property is received, disposed of, or retained with intent to restore it to the owner...” This charge was proper so long as an instruction limiting the jury to consideration of the specific method charged in the indictment was also given. Pippin v. State, 205 Ga. 316, 323-24 (53 SE2d 482) (1949). See Walker v. State, 146 Ga. App. 237, 245 (246 SE2d 206) (1978).

2 See note 1 supra.

3 The appellant does not suggest that the trial court’s use of the offending phrase was in any way intentional.