Bonilla v. State

• Decision Date: 13 May 1992
• Docket Number: No. A92A0412,A92A0412
• Citation: 419 S.E.2d 495,204 Ga.App. 424
• Parties: BONILLA v. The STATE.
• Court: Georgia Court of Appeals

Page 495

419 S.E.2d 495

204 Ga.App. 424

BONILLA v. The STATE.

No. A92A0412.

Court of Appeals of Georgia.

May 13, 1992.

Reconsideration Denied June 3, 1992.

Certiorari Denied July 16, 1992.

Lenzer & Lenzer, Robert W. Lenzer, Thomas P. Lenzer, Norcross, for appellant.

Thomas C. Lawler III, Dist. Atty., Debra K. Turner, Asst. Dist. Atty., for appellee.

BIRDSONG, Presiding Judge.

Jose Z. Bonilla appeals from the jury verdict of guilty and judgment of conviction of armed robbery and possession of cocaine, the sentence, and the denial of his new trial motion. He has enumerated three errors. Held:

1. The State introduced in evidence without objection two videotapes taken of appellant, one made during the robbery and one made during appellant's subsequent visit to the store. Appellant asserts the trial court erred in particular by denying his counsel's request to play the videotape taken at the store during the robbery in his counsel's closing argument.

Appellant admitted in closing argument at trial and by way of an admission in judicio in his appellate brief (Lingerfelt v. State, 255 Ga. 180(3), 336 S.E.2d 250; Brownlow v. City of Calhoun, 198 Ga.App. 710, 711, 402 S.E.2d 788) that the person appearing in the videotape which was taken after the robbery was appellant. Pretermitting the question whether it was error to deny appellant's request to show the videotapes during closing argument (compare Hodges v. State, 194 Ga.App. 837(3), 392 S.E.2d 262 with North Carolina v. Whiteside, 325 N.C. 389, 383 S.E.2d 911 and Lancaster v. Texas, 772 S.W.2d 137(3-5) (CA Tex.); see also Ramsey v. State, 165 Ga.App. 854, 859(7), 303 S.E.2d 32) is the issue of harmless error. In this instance the videotape of the robbery was viewed twice by the jury during trial and was viewed again by the jury at their request in open court during a pause in their deliberations. Moreover, defense counsel was not prohibited from making and did make reference to the videotape in closing argument. We find any error in refusing to allow appellant's counsel to make use of the videotapes during his closing argument was harmless beyond a reasonable doubt (particularly in light of the overwhelming evidence of appellant's guilt contained in the trial record). See Palmer v. State, 186 Ga.App. 892, 897(3), 369 S.E.2d 38.

2. Appellant asserts the trial court erred by admitting in evidence "mug shots" of appellant. The mug shots ultimately taken to the jury room had been cropped of any written information. However, appellant asserts (without citation to that portion of the record which would affirmatively support this particular claim) that the mug shots "were seen by the jury" as a police officer was testifying; and that the photographs then contained, at the bottoms thereof, the name of the police department taking the pictures, the inmate number, and the date the photographs were taken.

Appellant objected at trial to the admission of the photographs. His objections were specifically grounded upon a claim that "the prejudicial effect [of the photographs] would outweigh what is in the case," that the photographs were not relevant as "they [were] not taken at the time of the robbery," and another photograph taken in 1988 was not relevant as it was taken three years prior to the robbery.

Following appellant's initial objection to the photographs and outside the presence of the jury, the prosecutor stated he was going to have a police officer testify as to the date each photograph was taken, and that before the photographs were displayed to the jury the written dates on each would be cut off. Thereupon, the trial court allowed the officer to be questioned about the photographs before they were cropped, but in essence instructed the prosecutor not to let the jury see the photographs "with the police department indication on them, the officer just has to be careful not to exhibit them to the jury." (Emphasis supplied.) The court then allowed the officer to give foundation testimony concerning the photographs, ruling and directing that: "As long as I instruct the Officer and Counsel not to show it to the jury. I will overrule the objection though." The officer was present at the time these instructions were given, and in the absence of affirmative rebuttal evidence of record both he and counsel are presumed to have followed the trial court's procedural directive not to show the photographs to the jury. See Dykes v. State, 191 Ga.App. 879, 880(2), 383 S.E.2d 210; see also Butts v. State, 193 Ga.App. 824, 826(2), 389 S.E.2d 395 (presumed public officials, including assistant district attorneys, perform duties lawfully and in good faith). Thereafter, the officer testified without timely objection as to the date when each photograph of appellant was taken. Our examination of the record reveals no affirmative showing therein that the procedural directive of the trial judge, not to show the jury the photographs, was violated either by the officer or by counsel. Moreover, when the State offered the photographs in evidence, appellant renewed his objections previously made to their introduction. He also stated: "I interpose the objection that the jury might have had the opportunity to see them in the present size, after the court cuts off the bottom part they will then get a smaller photograph, the jury may wonder what part was cut off and it might be prejudicial and I will renew my objections." (Emphasis supplied.) The trial court overruled this objection "with the instructions that scissors will be used to cut off anything with time or place on the photograph."

The difference between appellant's alleged factual allegations on appeal that the mug shots were seen by the jury and his contention and inherent concession at trial that the jury might have had the opportunity to see them is too obvious to necessitate further elucidation. Secondly, the photographs reflect on their face that the order to crop the written information contained thereon was complied with fully.

Examination of the exhibits contained in the trial record reveals further that the cropped photographs which were actually provided to the jury were not per se identifiable as "mug shots." We will not speculate on appeal regarding the conduct of the jury; that is, we will not speculate as to whether the jury may have themselves speculated as to the photographs' source of origin. See Whelchel v. Thomas Ford Tractor, 190 Ga.App. 156(1), 378 S.E.2d 510; cf. Dimauro v. State, 185 Ga.App. 524(3), 364 S.E.2d 900. And, in view of the posture of this record, we find the trial court did not err in admitting the photographs in question. Flanagan v. State, 193 Ga.App. 408, 409(1), 388 S.E.2d 29; compare O'Toole v. State, 258 Ga. 614, 615-616(2), 373 S.E.2d 12; Stanley v. State, 250 Ga. 3(1), 295 S.E.2d 315; Clark v. State, 249 Ga. 18, 287 S.E.2d 523 and Woodard v. State, 234 Ga. 901, 902(2),...