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ROBERTSON v. STATE2/24/1997
Following a fight with David Winstead and Jerry McDaniel, William Daniel Robertson pulled a gun from his truck and shot Winstead in the foot. Robertson appeals his conviction on two counts of aggravated assault, contending the trial judge erred in excluding expert testimony, in giving an improper jury charge, and in failing to recuse herself from the trial of the case. Robertson also contends that the written sentence issued by the judge did not conform to the sentence announced in open court.
1. At trial, Robertson testified that he shot Winstead at close range in self-defense, while Winstead testified that he was shot at a range of between 15 and 30 feet after the fight was over. To support his version of events, Robertson attempted to present expert testimony from the emergency room physician who treated Winstead that, from the angle of the wound in the body, the shot must have been fired from close range.
In a proffer of evidence outside the presence of the jury, the physician stated that he believed the shot was either fired at a downward angle with the victim's foot flat, or was fired from a distance with the foot at an angle. The physician admitted that this opinion was based solely upon the angle at which the bullet entered the body, and that he had no formal training in ballistics. Although the physician had previously assisted law enforcement agencies in determining the angle of entry of a bullet and the position of the victim when shot, he had never been asked to determine where an assailant might have been standing when a shot was fired.
Under these circumstances, the trial court did not abuse its discretion in refusing to allow the physician to express an opinion regarding the distance from which the gun was fired or the trajectory of the bullet, as such matters were outside the physician's area of expertise. See McDonald v. Glynn-Brunswick Mem. Hosp., 204 Ga. App. 7 (418 S.E.2d 393) (1992) (whether witness has such expertise to be treated as expert is within sound discretion of trial court, and such discretion will not be disturbed unless manifestly abused). The physician was allowed to testify as to the point of entry of the bullet and the angle of the wound in the body. As he had no training or expertise in ballistics or bullet trajectories, any opinion he might have expressed regarding the position of the gunman or the trajectory of the bullet would merely have been based on a commonsense extrapolation from the angle of the wound, and not on any specialized knowledge he possessed.
Furthermore, any error in failing to allow the physician to express his opinion was harmless, as the proferred testimony was
equivocal at best. The physician admitted he could not state where Robertson was standing when he fired the shot, and admitted that the shot could have been fired at a distance if the victim's foot were angled. Thus, his testimony could support either Robertson's or the State's version of events. Accordingly, "it is highly probable that the exclusion of this evidence did not contribute to [Robertson's] conviction," and any error was thus harmless. Shaw v. State, 241 Ga. 308, 310 (1) (245 S.E.2d 262) (1978).
2. Robertson argues that the trial court erred in recharging the jury on the defense of justification, by failing to identify the portion of the original justification charge that was erroneous. However, when the judge asked the parties if they had any exceptions to the recharge, Robertson's attorney affirmatively stated that he had none, and did not reserve the right to make later objections. Accordingly, any objection to the recharge is waived. Lewis v. State, 215 Ga. App. 161, 164 (4) (450 S.E.2d 448) (1994).
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