Davis v. State

• Decision Date: 29 November 1984
• Docket Number: No. 68335,68335
• Citation: 172 Ga.App. 787,324 S.E.2d 767
• Parties: DAVIS v. The STATE.
• Court: Georgia Court of Appeals

Page 767

324 S.E.2d 767

172 Ga.App. 787

DAVIS v. The STATE.

No. 68335.

Court of Appeals of Georgia.

Nov. 29, 1984.

John H. Calhoun, Jr., Atlanta, for appellant.

James L. Wiggins, Dist. Atty., Michael T. Solis, Asst. Dist. Atty., for appellee.

CARLEY, Judge.

A five-count accusation was filed against appellant, charging him with violations of the State's liquor laws. Appellant waived trial by jury, and, at his ensuing bench trial, was found guilty on three counts. He appeals from the judgments of conviction and sentences.

1. Appellant filed a general Brady motion. After the State responded, appellant requested the trial court to conduct an in-camera inspection of the prosecution's files. See Tribble v. State, 248 Ga. 274, 280 S.E.2d 352 (1981). The trial court complied and found nothing exculpatory in the files that appellant had not already been provided. Pursuant to appellant's request, the prosecution's files were sealed and have been transmitted with the instant appeal. Appellant asserts that he "believes" that the files may contain statements and reports by witnesses who testified for the State and urges that this court make its own inspection to determine if such documents exist. If so, appellant contends that the trial court erred in failing to make those documents available.

When asserting an erroneous non-compliance with his Brady motion, "an appellant on appeal must show that exculpatory evidence was suppressed which was material." Gross v. State, 161 Ga.App. 489, 490, 288 S.E.2d 733 (1982). A mere belief that unspecified documents might exist in the prosecution's files is not sufficient to invoke an appellate review of the trial court's determination that nothing exculpatory is contained in the files. " 'The trial judge's discretionary ruling on the lack of exculpatory matter in the prosecution's files establish[es] that as a fact absent a counter-showing.' ... '[A]t a minimum, the fact of suppression must be shown' on appeal." (Emphasis supplied.) Barnes v. State, 157 Ga.App. 582, 586, 278 S.E.2d 916 (1981). See also Dickey v. State, 240 Ga. 634, 637, fn. 1, 242 S.E.2d 55 (1978).

Moreover, even assuming that appellant's belief in the existence of undesignated documents was a sufficient showing of the fact of their suppression, there has been no further showing that those documents are "material." See Roberts v. State, 243 Ga. 604, 605(1), 255 S.E.2d 689 (1979). "Absent a prima facie showing that materially exculpatory evidence is contained therein, the appellant is not entitled to a fishing expedition in the state's files, including the statements of witnesses." Gross v. State, supra at 491, 288 S.E.2d 733. "[A]ppellant has not shown, contrary to the [trial] court's statement that there was no exculpatory material in the file, what material was exculpatory, or that it would probably result in a different verdict. In the absence of such a showing, there is no requirement nor reason for this court to conduct its own examination of the file to see if the trial court misstated the facts. [Cit.] This enumeration presents nothing for review." Camp v. State, 162 Ga.App. 857, 858-859, 293 S.E.2d 389 (1982).

2. Certified copies of appellant's three previous convictions for State liquor violations were admitted into evidence. Appellant contends that he had not "opened the character door" prior to the State's offer of this evidence and that, consequently, its admission was error.

The convictions were not offered and admitted as "character" evidence. They were offered and admitted as evidence which was impeaching of appellant's own testimony given on direct examination. See OCGA § 24-9-82; Leverette v. State, 107 Ga.App. 712, 713(2), 131 S.E.2d 782 (1963). Accordingly, the issue is not whether the "character door" had been opened generally but whether the convictions were properly admitted as impeaching evidence.

Appellant first introduced the topic of his previous experience with selling beer and liquor when he testified on direct examination that, prior to the instant prosecution, he had not "had any problems with the city accusing [him] of selling beer and liquor and all that kind of stuff...." Appellant contends that his testimony regarding a lack of previous "problems with the city" was not subject to impeachment by proof of his prior convictions for State liquor violations. Appellant did not, however, clearly limit his testimony to "problems with the city." In his subsequent direct testimony, appellant expanded on the topic by further denying that he had "had any problems with that" and then by further stating that his "problems [had] start[ed] subsequent to [his] filing" of a lawsuit against the city regarding a business license. Although appellant contends that this additional testimony was meant merely as an elaboration on his lack of previous "problems with the city," the thrust of appellant's entire testimony can easily be construed as a denial of any "problems" relating to the sale of liquor prior to the instant prosecution, regardless of the jurisdiction. See Favors v. State, 145 Ga.App. 864(1), 244 S.E.2d 902 (1978). The trial court construed appellant's direct testimony as a blanket denial of any previous "problems" whatsoever regarding the sale of liquor and an assertion that the instant prosecution for liquor violations was his first. The prior convictions for liquor offenses were offered to impeach that assertion. We find no error in the admission of this evidence for impeachment purposes. See Mitchell v. State, 158 Ga.App. 628, 629(2), 281 S.E.2d 260 (1981).

3. Although the rule of sequestration had been invoked, the Sheriff of Montgomery County remained in the courtroom throughout the trial. Over appellant's objection, the State was allowed to call the Sheriff as a rebuttal witness. There was no error. Floyd v. State, 156 Ga.App. 741, 742(2), 275 S.E.2d 786 (1980).

4. The admission of the testimony of another of the State's rebuttal witnesses is enumerated as error. The objections raised on appeal were not raised at the time the testimony was offered. Unless evidentiary objections are raised at trial, they may not be urged on appeal. See generally Bedford v. State, 165 Ga.App. 232, 299 S.E.2d 129 (1983).

Appellant also contends that the failure of the attorney who represented him at trial to object to the testimony evinces the denial of effective assistance of counsel. "Errors of judgment and tactical errors do not constitute denial of effective assistance of counsel. [Cits.]" Harris v. State, 166 Ga.App. 202, 204, 303 S.E.2d 534 (1983).

5. The general grounds are enumerated. Although conflicting, the evidence was sufficient to authorize the trial court, sitting as the trior of fact, to find proof of appellant's guilt beyond a reasonable doubt. See generally Thomas v. State, 161 Ga.App. 159, 288 S.E.2d 112 (1982).

6. Appellant received probated sentences, subject to numerous special conditions. See OCGA § 42-8-35. Appellant asserts that certain of those special conditions are unauthorized.

"The probation and suspension statutes in Georgia vest broad discretion in trial judges. In the absence of express authority to the contrary, we see no logical reason why any reasonable condition imposed for probation or suspension of a sentence by a trial court should not be approved. Probated and suspended sentences, upon reasonable conditions ... [are]...