Opinion
70857.
DECIDED SEPTEMBER 5, 1985. REHEARING DENIED SEPTEMBER 24, 1985.
Kidnapping, etc. Tift Superior Court. Before Judge O'Connor, Senior Judge.
Michael E. Bergin, for appellant.
Thomas J. Charron, District Attorney, Debra H. Bernes, Assistant District Attorney, for appellee.
At approximately 10:45 p. m. on October 20, 1983, the victim in this case, a nurse at Cobb General Hospital, was abducted from the hospital parking lot while she was on her way to work on the late shift. Her attacker robbed her, held a knife to her throat, and forced her into his dark-colored Datsun 280Z. He pushed the victim into the back of the car and made her lie down while he drove to an abandoned parking lot nearby. He then forced her, by verbal threats and a knife held at her throat, to submit to oral sex, vaginal intercourse, and sodomy. Later, he drove her back to the hospital. When the victim arrived late to work at 11:40 p. m., she was pale, shaking, and crying. She notified the supervisor, who called in an emergency room doctor to perform a rape examination. The examination revealed the presence of sperm in the anus and vagina. While there were no signs of severe bruises or trauma to the victim's body, the doctor noticed a thin cut on her neck, such as might have been inflicted during the attack.
On October 27, one week after the incident, Cobb police officers noticed the defendant's car parked in the hospital lot. Since the car and its driver fit the description given by the victim, the defendant was approached, questioned, photographed at the site, and released. The photograph was placed in a line-up array, and within seven seconds the victim positively identified the defendant as her attacker. After one mistrial and a change of venue due to excessive publicity, a jury returned the verdict of guilty to all three counts: kidnapping, rape, and sodomy. Defendant appealed the conviction to this court. Held:
1. The standard for granting a new trial on the basis of newly discovered evidence is set forth in Tims v. State, 168 Ga. App. 409 ( 309 S.E.2d 405) (1983). The six-part test is in the conjunctive, and all six requirements must be met: (1) The evidence has come to light since the conclusion of the trial; (2) want of due diligence is not the reason for its not coming to light sooner; (3) the evidence is of such a high degree of materiality that it would probably produce a different verdict; (4) the evidence is not merely cumulative; (5) the affidavit of the witness himself must be procured or its absence satisfactorily accounted for; and (6) a new trial will not be granted if the evidence's only effect will be to impeach the credit of a witness. Id. at 411. "Motions for new trial on the ground of newly discovered evidence . . . are addressed to the sole discretion of the trial judge, which will not be controlled unless abused." Van Scoik v. State, 142 Ga. App. 341 ( 235 S.E.2d 765) (1977).
Appellant has failed to show compliance with these requirements. Most significantly, he has failed with respect to nos. 3 and 6, so that if, arguendo, the other requirements were met, it is highly unlikely that a new trial would have resulted in a different verdict. See, e.g., Johnson v. State, 238 Ga. 59 ( 230 S.E.2d 869) (1976). The record, moreover, reveals no abuse of discretion. This enumeration is without merit.
2. Appellant alleges that the prosecutor caused a mistrial, and that the second trial constituted double jeopardy in violation of his constitutional rights. "[W]here a defendant obtains a reversal based upon `trial error,' double jeopardy does not bar retrial." Osborne v. State, 166 Ga. App. 439 ( 304 S.E.2d 416) (1983).
Appellant also alleges that counsel's failure to file a plea in regard to the above constitutes ineffective assistance of counsel. "In reviewing the effectiveness of counsel, `this court must interpret counsel to mean not errorless counsel, and not counsel judged ineffective by hindsight, but counsel reasonably likely to render and rendering reasonably effective assistance.'" Johnson v. State, 171 Ga. App. 851, 852 ( 321 S.E.2d 402) (1984). Moreover, even if counsel were ineffective in failing to file the appropriate plea, the result would not have differed under Georgia's law on double jeopardy. There is no merit in this enumeration.
3. Appellant alleges that the prosecutor committed reversible error by commenting on his failure to testify. In a recent decision this court set out a two-part test to determine if prosecutorial comment constitutes reversible error. The test includes: (1) there was a manifest intent to comment on the failure to testify; and (2) the remark was of such a character that the jury would naturally and necessarily take it to be a comment on appellant's failure to testify. Morton v. State, 168 Ga. App. 18 ( 308 S.E.2d 41) (1983).
Examination of the trial transcript reveals no evidence of either the prohibited intent or the proscribed effect. Moreover, the transcript indicates that this alleged error was not raised at trial, and it is well settled that this court cannot review errors enumerated here but not raised below. Kitchens v. State, 228 Ga. 624 ( 187 S.E.2d 268) (1972).
4. Appellant alleges that it was error to admit the statements made by him at the time of the initial inquiry on October 27 because he was technically in custody and should have been read his Miranda rights. Scrutiny of the record reveals that the initial inquiry in the parking lot on that date was not custodial in nature. The Miranda warnings "are not required when a person responds to an officer's initial inquiry at an on-the-scene investigation which has not become accusatory." Williamson v. State, 171 Ga. App. 904, 905 ( 321 S.E.2d 762) (1984). Moreover, "[p]retermitting the question of whether appellant was in custody, it is clear the questions asked . . . were threshold questions to determine whether appellant should be detained." Id. at 904. This enumeration has no merit.
5. Comparison of the challenged jury instructions (enumerations 5 and 6) with the pattern instructions prepared by the Council of Superior Court Judges reveals that there was no reversible error in the language employed by the trial court. These enumerations, too, are devoid of merit.
6. Appellant alleges that the trial court's denial of his motion in limine was error, and that the court should not have allowed in evidence statements allegedly made by him during the commission of the crime, the effect allegedly being to deny him due process. Specifically, appellant alleges that the victim's testimony that appellant told her that he was a convicted felon impressibly placed his character in issue. It is apparent from the record that any such statements were a part of the res gestae of the crime and were therefore admissible. Any incidental placing of character in issue by such statements is not error. Pruitt v. State, 164 Ga. App. 247 ( 296 S.E.2d 795) (1982).
7. Finally, appellant assigns error on the general grounds. The appellate court considers the sufficiency of the evidence, not its weight. Ridley v. State, 236 Ga. 147 ( 223 S.E.2d 131) (1976). The record reveals that the evidence was sufficient to authorize a rational trier of fact to find defendant guilty as charged beyond a reasonable doubt. Jackson v. Virginia, 443 U.S. 307 (99 SC 2781, 61 L.Ed.2d 560) (1979); Crawford v. State, 245 Ga. 89 ( 263 S.E.2d 131) (1980). This enumeration is also without merit.
Judgment affirmed. Pope and Beasley, JJ., concur.