FIRST DIVISION
BARNES, P. J.,
MCMILLIAN and MERCIER, JJ.
NOTICE: Motions for reconsideration must be
physically received in our clerk’s office within ten
days of the date of decision to be deemed timely filed.
http://www.gaappeals.us/rules
January 19, 2018
In the Court of Appeals of Georgia
A17A1580. JORDAN v. THE STATE.
A17A1581. JORDAN v. THE STATE.
MCMILLIAN, Judge.
Appellants Roderick Jordan and Dennis Alonzo Jordan1 were tried together
before a jury and convicted of armed robbery. Appellants filed separate motions for
new trial, which the trial court denied following a hearing. They appeal and argue that
the trial court abused its discretion in denying their request for a postponement of the
trial after bench warrants were issued in the presence of the prospective jurors.
Roderick also contends that the trial court erred by refusing to allow him to recall the
victim to testify after he was cross-examined by appellants. Dennis challenges the
sufficiency of the evidence to convict him and asserts that the trial court erred by
1
Roderick and Dennis are brothers and will be referred to by their first names
for ease of reference.
allowing the State to introduce his prior convictions and in charging the jury on the
consideration of this evidence. Having considered these contentions, we now affirm.
Construed to support the jury’s verdict,2 the evidence shows that the victim,
was in his apartment on the morning of October 24, 2012. He heard a knock on the
door and saw Dennis Jordan, whom the victim knew as “Ike,” standing at his door.
The victim let Dennis into his apartment and closed but did not lock his door.
As the victim and Dennis were standing in the living room talking,3 a man
wearing a mask partially covering his face suddenly pushed open the door and rushed
in. The victim also recognized this man and identified him as Dennis’ brother
Roderick, whom the victim knew as “Pie.” Roderick pulled out a knife and pushed
the victim to the floor and held him down while taking money out of his wallet and
front pocket. Roderick then jumped off the victim, brandished a hammer, and walked
into the kitchen and took an envelope containing $300 off the table. The men then left
the apartment together. The victim testified that although Dennis just stood in the
2
Jackson v. Virginia, 443 U.S. 307 (99 SCt 2781, 61 LE2d 560) (1979).
3
The victim testified that Dennis had been in his apartment about 10 or 15
minutes before the other man burst in.
2
living room and did not actively participate in the robbery, Roderick asked Dennis
several times “Are you sure you didn’t tell him who I was?”
The victim called police, and the crime was investigated by an investigator with
the Thomaston Police Department. The investigator interviewed a neighbor, who said
he saw two men, fitting the height and weight descriptions of appellants, drive up in
a beige or champagne colored Chevrolet and park across the street from the
apartment.4 He observed one of the men get out of the vehicle and walk around to the
back of the apartment building, and then a few minutes later the other man got out
and went to the trunk of the vehicle, retrieved something from the trunk, and placed
it in his pants. This man then also walked around “where the other fellow went”
behind the apartment.
Based on the information the victim gave to her, the investigator prepared
photographic line-ups containing appellants’ pictures.5 The victim identified
4
Roderick testified at trial on his own behalf and admitted that his girlfriend/
fiancé drove a similarly colored Chevrolet Impala and he and Dennis were together
in the vehicle that day, but insisted he had not been in the victim’s apartment and had
nothing to do with the robbery.
5
The appellants’ pictures were placed in separate line-ups.
3
appellants from the line-ups, and they were subsequently arrested and charged, and
convicted of armed robbery. These appeals followed.
Case No. A17A1580
1. Roderick first argues the trial court abused its discretion by refusing to
postpone the proceedings until a new jury venire could be convened after appellants
failed to timely return to court after lunch and the trial court issued a bench warrant
for his arrest in the presence of the prospective jurors.6
The record shows that appellants had been instructed to return to court at 1:30
p.m. after the lunch break. Appellants failed to appear, and the trial court indicated
during a bench conference that it would issue a bench warrant and bond forfeiture.
After the court attended to some unrelated matters, the court again called for the
appellants, and the court issued the bench warrant and bond forfeiture in the presence
of the prospective jurors.
6
Appellants also apparently assert that the prospective jurors were prejudiced
because appellants returned from lunch intoxicated. Although the trial court
ultimately postponed the proceedings due to appellants’ inability to meaningfully
participate in their defense due to their intoxication, this was done outside the
presence of the jury and there is nothing to suggest, other than speculation, that the
jury was aware that appellants appeared in court while intoxicated.
4
Appellants then entered the courtroom, and the court admonished them that
they were supposed to be there at 1:30 p.m. Dennis’ counsel objected to the issuance
of the warrant in the presence of the venire, and the court indicated it would let her
put her objection on the record at a later time. The trial court proceeded to propound
the statutory questions, but then Roderick’s counsel asked to approach the bench and
informed the judge that appellants appeared to be intoxicated. The trial court
dismissed the prospective jurors and, after it was determined that appellants were in
fact under the influence, ordered them incarcerated and the proceedings continued to
another day. The trial court also allowed counsel to perfect her objection about the
case going forward before the same potentially prejudiced jurors who had been
present when the bench warrant was issued, but refused to continue the proceedings
to allow a new venire to be seated.
When prospective jurors who have not been impaneled or sworn are exposed
to prejudicial remarks, the prejudiced party has two potential remedies: (1) the more
“extreme remedy” of postponement until a new panel of jurors can be impaneled or
(2) a challenge to the poll.7 Bankston v. State, 169 Ga. App. 955, 955 (1) (315 SE2d
7
A challenge to the poll is “the proper procedural vehicle to seek a new panel
from which to reselect a jury.” Herrington v. State, 300 Ga. 149, 153 (4) (794 SE2d
145) (2016).
5
671) (1984); see also Bell v. State, 311 Ga. App. 289, 292 (2) (715 SE2d 684) (2011);
Nave v. State, 171 Ga. App. 165 (318 SE2d 753) (1984).
Here, appellants sought the extreme remedy of postponement, apparently
because all of the potential jurors summoned for the week were in the courtroom.
However, appellants have failed to show that they were prejudiced by the issuance
of the bench warrants. Appellants did not request or attempt to question the
prospective jurors about the effect of the issuance of the bench warrants. And none
of the potential jurors responded affirmatively to the statutory voir dire questions
concerning whether they had formed any opinion concerning the guilt or innocence
of appellants, or were prejudiced for or against appellants, and none of them disputed
that they were “perfectly impartial.” Also, none of the members of the venire gave
any other indication that they had been prejudiced by the issuance of the warrants or
bond forfeiture against appellants. Further, appellants did in fact appear in court
shortly after the bench warrants were issued, and the prospective jurors knew they
had simply been late returning from lunch and had not in fact failed to appear. Under
these circumstances, and in the absence of any showing of possible prejudice, we find
no abuse of discretion in the denial of the request for a postponement or continuance.
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2. Roderick also argues the trial court erred when it denied his request to recall
the victim to testify during his case-in-chief.
The record reflects that the State called the victim to testify, and Roderick’s
counsel conducted a cross and re-cross examination after the State concluded its
direct examination. The State rested at that point, and Roderick’s counsel requested
that the victim be available for recall. After Roderick testified, his counsel requested
that the victim be recalled for the purpose of impeachment. The trial court denied the
request, noting that the victim had just been thoroughly cross-examined.
Pointing to OCGA § 17-16-10, Roderick argues that he had an absolute right
to call the victim to testify and that he is entitled to a new trial because he was denied
that right. We disagree. OCGA § 17-16-10 provides: “[e]ither party may call as a
witness any person listed on either the prosecuting attorney’s or defendant’s witness
list[.]” But OCGA § 17-16-10 does not allow witnesses to be recalled at trial as a
matter of right and for any reason whatsoever. Instead, OCGA § 24-6-611 (a) gives
the trial court reasonable control over the mode and order of interrogating witnesses.8
8
OCGA § 24-6-611 provides:
The court shall exercise reasonable control over the mode and order of
interrogating witnesses and presenting evidence so as to: (1) Make the
7
See Farley v. State, 314 Ga. App. 660, 665 (4) (725 SE2d 794) (2012) (trial court has
power to deny recall of witnesses who had already been thoroughly cross-examined
by defendant); Smith v. State, 261 Ga. App. 871, 875 (3) (583 SE2d 914) (2003)
(“The recalling of a witness for further examination at the instance of either party is
always within the discretion of the trial judge.”) (citation and punctuation omitted).
Here, when Roderick’s counsel asked for the victim to be recalled, he only explained
that it was for “impeachment purposes,” without further elaboration. Because the
record shows that Roderick was given ample opportunity to question the witness and
has made no showing as to the specific impeachment matter he was allegedly
prevented from pursuing, he has failed to show an abuse of discretion and is not
entitled to a new trial on this basis. Cf. Webb v. State, 300 Ga. App. 611 (685 SE2d
498) (2009) (reversal error when trial court refused to allow defendant to call a
witness listed on the State’s witness list solely because the witness was not also listed
on the defendant’s list).
interrogation and presentation effective for the ascertainment of the
truth; (2) Avoid needless consumption of time; and (3) Protect witnesses
from harassment or undue embarrassment.
8
Case No. A17A1581
3. Dennis first challenges the sufficiency of the evidence to support his
conviction. Although Dennis testified in his own defense at trial and told the jury that
he was merely present at the scene and actively tried to discourage the robber, the jury
was authorized to disbelieve his testimony. And although mere presence is
insufficient to show participation in a crime, whether a person was a party to a crime
can be inferred from his presence, companionship, and conduct before and after the
crime was committed. Walsh v. State, 269 Ga. 427, 429 (1) (499 SE2d 332) (1998).
The evidence as set out above, including evidence that appellants arrived at the scene
together and Roderick questioned his brother at the scene in an implicating manner,
was more than sufficient to authorize Dennis’ conviction as a party to the crime of
armed robbery. E.g., Puckett v. State, 342 Ga. App. 518, 522 (1) (804 SE2d 648)
(2017).
4. Dennis also contends that the trial court erred by refusing to grant a
postponement because the jury was prejudiced when the trial court issued a bench
warrant for his arrest. For the reasons set out in Division 1, we find this enumeration
to be without merit.
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5. Dennis next argues that the trial court erred by allowing the State to
introduce his prior convictions for burglary and theft for the purposes of
impeachment. Read in conjunction, subsections (a) (1) and (b) of OCGA § 24-6-609
provide that prior felony convictions less than ten years old may be introduced for the
purpose of attacking the character for truthfulness of a witness if the court determines
that the probative value of admitting the evidence outweighs its prejudicial effect.9
The introduction of evidence of a prior felony conviction
is intended to afford the jury a basis to infer that the
witness’s character is such that he would be less likely than
the average trustworthy citizen to be truthful in his
testimony. The introduction of evidence of a prior crime is
thus a general attack on the credibility of the witness.
(Citation omitted.) Robinson v. State 336 Ga. App. 627, 631 (3) (785 SE2d 304)
(2016). We review the trial court’s decision to admit this evidence under an abuse of
9
We note that subsection (a) (1) of OCGA § 24-6-609 applying to prior crimes
of the accused, which are less than ten years old, does not require the probative value
of admitting the prior crime “substantially” outweigh its prejudicial effect, as was the
case under the prior law and is presently the case under subsection (b) of OCGA § 24-
6-609, which applies when the prior crime is more than ten years old. Williams v.
State, 299 Ga. 834, 836 (2), n.2 (792 SE2d 336) (2016).
10
discretion standard. Id.; Smith v. State, 331 Ga. App. 296, 299, 300 (2) (771 SE2d 8)
(2015).
Here, as the trial court found, Dennis placed his credibility directly at issue by
testifying at trial that he took no part in the armed robbery and that he actually tried
to discourage the robber by telling him that the victim did not have anything to take.
Further, Dennis had already admitted that he had a criminal past and said he was at
the victim’s apartment to collect money for a drug sale and to sell him more drugs,
and thus the jury did not learn that he was a criminal solely from the admission of the
evidence. Lastly, although Dennis argues that the evidence could permit the jury to
improperly draw inferences that he had an inclination or propensity to commit theft
crimes instead of limiting the prior crimes evidence to its stated purpose of
impeachment, under these circumstances, we find no abuse of discretion in the trial
court’s determination that the probative value outweighed its prejudicial effect and
in admitting the prior crimes for the purpose of generally attacking Dennis’
credibility. Robinson 336 Ga. App. at 630-31 (3); Smith, 331 Ga. App at 299-300 (2).
6. Lastly, Dennis argues that the trial court committed plain error by charging
the jury that it consider the prior convictions for “any relation that they may have with
the alleged victim in this case.” But the full charge was as follows:
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In determining the credibility of witnesses and any testimony provided
in court, you may consider whether applicable evidence offered to attack
the credibility or believability of any witness. This would include
evidence of a felony conviction, and that would include felony theft by
taking or burglary charges or drug charges or possession of cocaine....
There has been evidence of prior convictions of the defendants. You
may consider this evidence only insofar as it may relate to credibility of
the defendants as witnesses and any relation they may have with the
alleged victim in the case.
Because Dennis did not object to the charge, we are limited to review for plain error.
E.g., State v. Kelly, 290 Ga. 29, 32-33 (2) (a) (718 SE2d 232) (2011). “[W]e will
reverse the trial court only if an instructional error was not affirmatively waived, was
obvious beyond dispute, likely affected the outcome of the proceedings, and seriously
affected the fairness, integrity, or public reputation of judicial proceedings.”
Herrington v. State, 300 Ga. 149, 151 (2) (794 SE2d 145) (2016); Ferguson v. State,
335 Ga. App. 862, 870 (3) (783 SE2d 380) (2016).
Dennis asserts that the charge was plain error because the reference to “any
relation they may have with the alleged victim in the case” could have permitted the
jury to consider whether the prior convictions, rather than the appellants, had any
relationship to the victim. Although the antecedent to the pronoun “they” is not clear
12
and may have referred to either the appellants or the prior convictions, when the
charge is read as a whole as it must be, any error was not so obvious or clear as to
likely affect the outcome of the proceedings, especially in light of the strong evidence
of Dennis’ guilt. Avelo v. State, 290 Ga. 609 613-14 (5) (724 SE2d 377) (2012).
Accordingly, we decline to grant Dennis a new trial on this basis.
Judgments affirmed. Barnes, P. J., and Mercier, J., concur.
13