DocketNumber: A12A1566
Citation Numbers: 318 Ga. App. 254, 735 S.E.2d 785
Judges: Ray
Filed Date: 10/29/2012
Status: Precedential
Modified Date: 9/8/2022
A jury convicted Cornell Elijah Martinez of one count of armed robbery,
Viewed in the light most favorable to the verdict,
Martinez was tried, along with two of his co-defendants, in January 2009. At trial, after the State rested, Martinez moved for a directed verdict on the six kidnapping counts. The trial court granted the motion, but charged the jury on the lesser included offense of false imprisonment as to each count over Martinez’s objection.
1. Martinez contends that the trial court erred in allowing the jury to consider the lesser included offense of false imprisonment after granting a directed verdict on the kidnapping charges. Specifically, he argues that a directed verdict may only be granted as to the “entire offense,” thus making lesser included offenses “moot.” We find no error.
A trial court, pursuant to OCGA § 17-9-1 (a), may grant a directed verdict
[wjhere there is no conflict in the evidence and the evidence introduced with all reasonable deductions and inferences therefrom shall demand a verdict of acquittal or “not guilty” as to the entire offense or to some particular count or offense [;] the court may direct the verdict of acquittal to which the defendant is entitled under the evidence and may allow the trial to proceed only as to the counts or offenses remaining, if any.
Where a directed verdict has been granted on one charge, as in the instant case, our appellate courts have upheld a trial court’s decision to allow the jury to consider a lesser included offense. In one' similarly postured case, our Supreme Court determined that “[t]he trial court did not commit error by charging the jury on a lesser included offense of simple battery after it had directed a verdict on the charge of aggravated assault.”
Significantly, an indictment encompasses all lesser included offenses of the charged offense.
Here, false imprisonment is a lesser included offense of kidnapping,
Thomas v. State,
To the extent that Martinez is attempting to argue that the trial court erred in denying him a directed verdict on the false imprisonment charges, we note that it is well settled that when a defendant claims the trial court erred in denying his motion for a directed verdict, there is no ground for appeal so long as the evidence was sufficient to convict the defendant of the lesser included offense.
2. Martinez contends that the judgment against him should be reversed because the trial court erred when it indicated that spectators would need to be excluded from the courtroom during voir dire because of limited space. He argues that the trial court failed to consider alternatives to closure, such as dividing the jury venire panel.
Specifically, the trial court noted that there were 58 potential jurors, and that
every available seat basically is taken up ... [s]o spectators are not going to be in here to watch voir dire. Spectators can come back in to watch the actual strike of the jury because by then I think the panel will be small enough that we would have spectator seating room. And of course, for the remainder of the trial and the trial itself with the jury selected, spectators are free to be in here.
Martinez concedes that he never objected to the trial court’s statement at any point during voir dire. Nor did Martinez raise this issue in his motions for a new trial. Further, on appeal, Martinez never asserts, nor does he cite to any portion of the record indicating, that
Both the United States Constitution and the Georgia Constitution guarantee all criminal defendants the right to a public trial, and this right extends to voir dire of prospective jurors.
Judgment affirmed.
OCGA § 16-8-41.
OCGA § 16-7-1.
OCGA § 16-5-41 (a).
Jackson v. Virginia, 443 U. S. 307, 319 (III) (B) (99 SC 2781, 61 LE2d 560) (1979). Martinez does not contest the sufficiency of the evidence supporting the verdict.
(Citation omitted.) Clarke v. State, 239 Ga. 42, 43 (1) (235 SE2d 524) (1977).
Williams v. State, 196 Ga. App. 154, 155-156 (1) (395 SE2d 399) (1990).
Morris v. State, 310 Ga. App. 126, 129 (2) (712 SE2d 130) (2011).
(Citation and punctuation omitted.) Tuggle v. State, 145 Ga. App. 603 (1) (244 SE2d 131) (1978); OCGA § 16-1-6 (1).
Stovall v. State, 216 Ga. App. 138, 141 (5) (453 SE2d 110) (1995).
(Citation omitted.) Morris, supra, citing Clarke, supra.
184 Ga. App. 131 (361 SE2d 21) (1987).
Id. at 131-132 (1).
Id. at 131 and 132 (1).
Supra.
Supra.
See generally Judice v. State, 308 Ga. App. 229, 231 (1) (707 SE2d 114) (2011) (where defendant was not convicted on the greater charge but was found guilty of a lesser included offense, the issue of whether the trial court erred in denying a motion for directed verdict of acquittal on the greater charge is moot).
See Brabham v. State, 240 Ga. App. 506, 506(1) (b) (524 SE2d 1) (1999) (victim testimony that defendant forced him at gunpoint to sit and remain on floor while defendant took painkillers from pharmacy shelves sufficient to sustain conviction for false imprisonment, even where jury acquitted defendant of kidnapping).
U. S. Const., Amend. VI; 1983 Ga. Const., Art. I, Sec. I, Par. XI (a); Presley v. Georgia, 558 U. S. 209 (130 SC 721, 724-725, 175 LE2d 675) (2010) (where defendant objected to closure of courtroom, trial court is required to consider alternatives to closure).
Reid v. State, 286 Ga. 484, 488 (3) (c) (690 SE2d 177) (2010) (improper courtroom closing is structural error requiring reversal only if defendant properly objected at trial and raised the issue on direct appeal). See also State v. Abernathy, 289 Ga. 603, 611 (5) (715 SE2d 48) (2011) (absent an objection at trial, the issue of courtroom closure may be raised only via an ineffective assistance of counsel claim).
See Gordian v. State, 261 Ga. App. 75, 77 (3) (581 SE2d 616) (2003).