Calloway v. State, 70629

• Decision Date: 23 October 1985
• Docket Number: No. 70629,70629
• Citation: 337 S.E.2d 397,176 Ga.App. 674
• Parties: CALLOWAY v. The STATE.
• Court: Georgia Court of Appeals

Page 397

337 S.E.2d 397

176 Ga.App. 674

CALLOWAY v. The STATE.

No. 70629.

Court of Appeals of Georgia.

Oct. 23, 1985.

Rehearing Denied Nov. 1, 1985.

Certiorari Denied Jan. 17, 1986.

William C. Puckett, Jr., Decatur, for appellant.

Robert E. Wilson, Dist. Atty., J. Michael McDaniel, Robert H. Coker, Susan Brooks, Asst. Dist. Attys., for appellee.

BEASLEY, Judge.

On December 14, 1984 Marvin Calloway was convicted of criminal trespass, burglary, simple battery, and false imprisonment. All charges involved Dorothy Bell Calloway.

1. Defendant first enumerates that the trial court erred in denying his motion for mistrial following a police officer's testimony as to statements made by defendant while in police custody, such statement not having been turned over to defendant upon his request under OCGA § 17-7-210. In setting the context in which defendant's written statement was obtained, the officer first testified that the Miranda rights were explained. Then she was asked to explain her procedure in taking the written statement. She said: "Well, first, I attempted to establish some sort of rapport with the defendant asking him about his family, about the problems he and his wife were having, about his drug and alcohol problems, and then eventually asking him if he would tell me about what specifically happened when he went to his ex-wife's apartment." Defendant contends that the officer's reference to drug and alcohol problems infers that defendant himself made a statement to the effect that he had such problems which "tends to show that Appellant has committed a crime that is not charged in the indictment."

"[T]hose parts of oral statements required to be furnished must be relevant, material, and of an inculpatory cast." Howell v. State, 163 Ga.App. 445, 448(4), 295 S.E.2d 329 (1982).

Defendant's enumeration fails for the following reasons: First, having an alcohol problem is not a crime, and thus it is not inculpatory. Moreover, various references were made at trial, without objection, to defendant's alcohol problem. It was not an issue. Defendant himself testified about his drinking, his DUI arrest, and his treatment at drug and alcohol abuse centers. Likewise, having a drug problem does not ipso facto involve crime; one may abuse or be addicted to an over-the-counter or prescription drug. Second, the statement complained of here was the officer's and not defendant's. It is what she asked defendant about, not what he stated and not necessarily based on anything he said; it was her characterization of a perceived condition. No evidence was admitted through the officer's testimony regarding any oral statement by defendant which was not already in the possession of defendant pursuant to his OCGA § 17-7-210 request. Third, OCGA § 17-7-210 restricts the admission into evidence of only those statements by defendant which are material and relevant to defendant's guilt or innocence of the crime(s) for which he is charged. See Howell, supra. Alcohol and drug problems, even if they encompassed crimes, are not relevant and material to defendant's guilt or innocence of the charges faced at trial. Finally, even if the officer's description of their preliminary conversation was based on subjects brought to her attention in part by what he said, and even if it was relevant, material and inculpatory, his triggering statement was not introduced and thus OCGA § 17-7-210 was not violated. See Hilburn v. State, 166 Ga.App. 357, 359(3), 304 S.E.2d 480 (1983).

Any conceivable error in this regard was allayed by the trial court which, in an abundance of caution, instructed the jury to disregard any statement that the officer made except insofar as it explained her routine and "to disregard the statement insofar as content is concerned." It then clarified this instruction by stating that the jury should disregard all statements made by the defendant except those contained in the written statement made by defendant and read by the officer. Therefore the admission of such statements could not have affected the outcome of the trial.

In these circumstances, the denial of a mistrial was not an abuse of discretion, and that it must be before a defendant is entitled to the award of a new trial by this court. Clark v. State, 159 Ga.App. 136, 137(1), 282 S.E.2d 752 (1981).

2. Defendant next asserts that the trial court erred in denying his motion for mistrial following the testimony of a court-appointed psychiatrist as to statements made by defendant while in custody, such statements not having been provided to defendant upon request under OCGA § 17-7-210. The psychiatrist had spoken with defendant in evaluating his competency to stand trial.

Pursuant to his discovery request, defendant was provided a copy of the psychiatrist's report prior to trial. Although the report is not now before us, it apparently included the language, "He [defendant] stated he tied up his wife so she would not call the police and he knew what he was doing." Defendant, however, complains that the psychiatrist testified at trial to a statement not included in the report and not provided prior to trial. Specifically, defendant objects to the testimony, "He [defendant] said that he was over at his ex-wife's house and she wanted him to leave ...," apparently asserting that the term "ex-wife" is inculpatory as to the burglary charge and the "she wanted him to leave" phrase is inculpatory as to the false imprisonment charges. Since we reverse the burglary charge for another reason, we need not address that evidentiary issue.

With regard to the challenged testimony "she wanted him to leave," defendant asserts this statement affected his credibility before the jury since he later testified at trial that the victim never asked him to leave her apartment.

The psychiatrist was merely paraphrasing the report and not quoting the defendant as to anything over and above it. There was no OCGA § 17-7-210 violation. Furthermore, defendant had in his possession a copy of a statement that he had given police which was not dissimilar. The statement in part read, "I ... tied her to the bed ... [she then said] 'Marvin why you doing this.' She didn't try to stop me though. I got into the bed, but couldn't go to sleep because I thought she was going to try to leave or call the police ..." Even in this statement, defendant acknowledged that he was not in the apartment with her acquiescence and she was not being held voluntarily.

Moreover, once again the trial court issued cautionary instructions: "[D]isregard the previous answer by the witness and completely obliterate it from your mind and give it absolutely no consideration in this case."

The trial court did not err in denying defendant's motion for mistrial.

3. Defendant contends that the trial court erred in allowing, over objection, the victim to testify that she and defendant were divorced without introducing a certified copy of the divorce decree in violation of the best evidence rule.

OCGA § 24-5-4 has no application where the contents of a writing are not at issue. Pryor v. State, 238 Ga. 698, 707(9), 234 S.E.2d 918 (1977). " 'It is not contrary to the best-evidence rule that oral testimony of a fact in issue may be primary evidence of the fact, although there is written evidence thereof, where the essential fact to be proved is neither the existence nor the contents of the writing, but the existence of the independent fact itself, to which the writing is merely collateral or incidental.' [Cit.]" Burke v. State, 153 Ga.App. 769, 770(4), 266 S.E.2d 549 (1980).

Generally the best evidence of a divorce is a divorce decree. See Wilson v. Allen, 108 Ga. 275, 33 S.E. 975 (1899); Clark v. Cassidy, 64 Ga. 662 (1880); Ellison v. Aiken, 74 Ga.App. 541, 543, 40 S.E.2d 441 (1946); see also dicta in Mallette v. Mallette, 220 Ga. 401, 403(2), 139 S.E.2d 322 (1964). This is so in those cases where the existence or content of the divorce decree is at issue. Mallette, supra. Here, however, neither the existence nor the content of the divorce decree was at issue. Defendant did not challenge the fact that a divorce decree was issued. Rather, he merely testified that...