Mullins v. State

Blackburn, Judge.

A Fulton County jury convicted Larry Mullins of aggravated assault (OCGA § 16-5-21 (a) (2)) after he attacked the supervisor of his road crew with a metal pipe. He appeals from that conviction and a three-year prison sentence. We affirm.

1. In his first enumeration of error, Mullins contends the trial court erred by denying his motion for new trial without a hearing. The record reflects that motion was filed on May 9, 1995, and denied on July 3, 1995. At no time before the court denied the motion did Mullins file a rule nisi or other request for a hearing. In the absence of a timely request from one of the parties, the trial court had no duty to initiate a hearing. Wilkins v. State, 220 Ga. App. 516, 518 (3) (469 SE2d 695) (1996); see also Peyton v. Peyton, 236 Ga. 119, 120-121 (223 SE2d 96) (1976). This enumeration is without merit.

Mullins’ request for hearing was untimely because it was made after the trial court ruled on the motion for new trial. Nonetheless, because Mullins’ counsel apparently did not receive a copy of the order denying her motion for new trial and subsequently filed a request for hearing several months after the court had ruled, the trial court scheduled a hearing though not required to do so. At Mullins’ specific request, the trial court then entered another order denying the motion for new trial nunc pro tunc to the date of the original order so that Mullins could file this appeal. Accordingly, Mullins can show no error or harm in the trial court’s actions.

2. In his second enumeration of error, Mullins claims the trial court prevented him from testifying about prior threats or acts of violence he had seen the victim display on the job site toward other employees. This matter was apparently discussed during an unreported bench conference. If the trial court excluded such testimony, the record does not fully reflect its reasons for doing so. Because the record contains no order excluding the subject testimony or a transcript of the hearing thereon, we are precluded from reviewing this issue on appeal. See Clay v. State, 209 Ga. App. 266, 269 (2) (433 SE2d 377) (1993) (requirement of showing error by the record); Holloway v. State, 201 Ga. App. 204, 205 (2) (410 SE2d 799) (1991) (requirement of proffer as a prerequisite for appellate review).

Pretermitting whether Mullins adequately preserved this claimed error, however, the trial court did not err by excluding the testimony. The record shows Mullins made no effort to give the trial court prior notice of his intent to produce this testimony, as required by Uniform Superior Court Rules 31.1 and 31.6, and Chandler v. State, 261 Ga. 402, 408 (3) (405 SE2d 669) (1991). This claim therefore is without merit.

Judgment affirmed.

Senior Appellate Judge Harold R. Banke concurs. Beasley, J, concurs specially.