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Burden v. State

Court of Appeals of Georgia

July 7, 2015

BURDEN
v.
THE STATE

Aggravated assault. Cobb Superior Court. Before Judge Bodiford.

The Wotorson Firm, Ronnie B. Wotorson, for appellant.

D. Victor Reynolds, District Attorney, John R. Edwards, Assistant District Attorney, for appellee.

McFADDEN, Judge. Ellington, P. J., and Dillard, J., concur.

OPINION

Page 184

McFadden, Judge.

A jury found Ishmael Burden guilty of aggravated assault. The trial court entered judgment of conviction, imposed a 15-year sentence and denied a motion for new trial. Burden appeals, claiming that the trial court erred in overruling an objection to a leading question by the state, failing to give a jury charge on simple assault as a lesser included offense, refusing to allow evidence of prior acts of violence by the victim and admitting Burden's confession into evidence. However, the challenged question was not leading, any error in the jury charge was harmless, the trial court did not abuse its discretion in excluding evidence of prior acts by the victim and the trial court did not clearly err in admitting the confession. We therefore affirm.

Construed in favor of the verdict, Jackson v. Virginia, 443 U.S. 307 (99 S.Ct. 2781, 61 L.Ed.2d 560) (1979), the evidence shows that on March 7, 2011, Burden called a taxicab company for a ride, giving a false phone number and home address. At approximately 1:30 a.m., the taxi driver dispatched to the location found Burden and an accomplice waiting near the address. Once inside the cab, Burden and his accomplice attacked the driver. Burden hit the driver

Page 185

on the head as his accomplice sprayed the driver with pepper spray. During the attack, Burden and the accomplice demanded money from the driver and tried to reach into his pockets. When the driver began to drive erratically, Burden and his accomplice jumped out of the [332 Ga.App. 812] moving vehicle and fled. The police were contacted and subsequently apprehended Burden and the accomplice. Burden gave a statement to the police, confessing that he and his accomplice had planned to rob the taxi driver, that they had hit and pepper-sprayed him and that they had tried to take his money.

1. Leading question.

Burden claims that the trial court erred in overruling his objection to an improper leading question when the prosecutor asked the victim, " Was any money demanded of you?" But contrary to Burden's claim, this was not a leading question because it did not suggest a desired answer, and instead simply called for a " yes" or " no" response from the witness.

" A question is leading when it is so framed as to suggest to the witness the answer which is desired; on the other hand, a question not suggesting the desired answer is not leading where it inquires only into a single fact." Milner v. State, 258 Ga.App. 425, 429 (1) (574 S.E.2d 457) (2002) (citations and punctuation omitted). Thus, " a question is not open to the objection that it is leading when it does not suggest the answer desired. [Cits.]" Ealey v. State, 139 Ga.App. 110, 111 (227 S.E.2d 902) (1976). Because the question here inquired only into a single fact and did not suggest an answer, the trial court properly overruled Burden's objection. See Riley v. State, 268 Ga. 640, 642 (2) (d) (491 S.E.2d 802) (1997) ...


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