England v. State

• Decision Date: 14 July 1994
• Docket Number: No. A94A0466,A94A0466
• Citation: 214 Ga.App. 275,447 S.E.2d 654
• Parties: ENGLAND v. The STATE.
• Court: Georgia Court of Appeals

Page 654

447 S.E.2d 654

214 Ga.App. 275

ENGLAND v. The STATE.

No. A94A0466.

Court of Appeals of Georgia.

July 14, 1994.

Reconsideration Denied July 29, 1994.

M. Ross Becton, Jr., Savannah, for appellant.

Spencer Lawton, Jr., Dist. Atty., for appellee.

SMITH, Judge.

Jermaine Randolph England and a codefendant were charged with armed robbery and possession of a firearm during the commission of a felony. England was convicted of the former charge and acquitted of the latter. He appeals, claiming the trial court erred in allowing the State to impeach an alibi witness's character with the witness's "first offender conviction" [sic] and in subsequently instructing the jury "as to the effect of said impeachment."

England's witness testified on direct examination that he had been convicted in the past of shoplifting, but no other crime. During cross-examination a bench conference was held at which the following transpired:

"THE STATE: [The defense witness has] been convicted of theft by receiving, and I'm gonna use that to impeach him, because first of all, that's the only thing he said--he said he was only convicted of shoplifting,--

"THE COURT: That's correct.

"THE STATE: [inaudible]....

"THE STATE: And he's also "first offender" under that. And the State can, under ...

"TRIAL COUNSEL: We have no objection to that, Your Honor." (End of bench conference.) The State then proceeded to confront the witness with his prior "conviction" for theft by receiving. On redirect, trial counsel confirmed that the shoplifting charge brought out on direct examination and the theft by receiving charge brought out on cross-examination, were treated together "as sort of a package"--"all done at one time."

Trial counsel then asked the witness whether his first offender status had ever been revoked. The witness responded negatively. Trial counsel then addressed the court: "As a matter of law, now that this evidence is out, I'm gonna move to with--to have the court withdraw from consideration State's Exhibit 23, because first offender status was given and was never revoked. And this man has never been convicted of anything." The court agreed that first offender treatment is not a "conviction." See OCGA §§ 42-8-60, 42-8-62(a). The State asked for an opportunity to research the law, and the court reserved ruling on whether the disputed exhibit would go out with the jury.

When the matter was revisited, trial counsel requested that the court fashion a charge "just to let the jury know that he's never been convicted, but that he's been impeached...." The exhibit was ultimately sent out with the jury at the time of deliberation.

1. We first note that trial counsel at no time challenged whether the witness's first offender treatment for theft by receiving was properly used to impeach his claim that he had never been convicted of any crime other than shoplifting. On the contrary, trial counsel conceded that his witness had been impeached when he requested a charge to that effect. Therefore, that issue is not before us. Strong v. State, 263 Ga. 587, 589(3), 436 S.E.2d 213 (1993).

Since the impeachment of England's witness is not at issue, we find no basis for reversal. The exhibit in question merely documented facts brought out by the State without objection when the defense witness was "impeached." Moreover, the exhibit actually confirms England's assertion that the witness received first offender treatment rather than a conviction on the theft by receiving charge. Since the exhibit was merely cumulative of evidence brought out without objection on cross examination of England's witness, any error in allowing the exhibit to go out with the jury was harmless. See, e.g., Williams v. State, 256 Ga. 655, 657(2), 352 S.E.2d 756 (1987).

2. England complains that the court's instruction on the effect of his witness's first offender plea was confusing, misleading, and incorrect. However, the potentially damaging impact of the first offender plea on the witness's credibility would not be lessened significantly by an instruction on the proper characterization of that plea under Georgia law, no matter how accurately stated. Since the challenged instruction involved at best a collateral matter, we find any error to be harmless. See Kemp v. State, 163 Ga.App. 680, 682(3), 296 S.E.2d 71 (1982).

Judgment affirmed.

McMURRAY and BIRDSONG, P.JJ., ANDREWS, J., and HAROLD R. BANKE, Senior Appellate Judge, concur.

BEASLEY, P.J., and JOHNSON, J., concur in the judgment only.

POPE, C.J., and BLACKBURN, J., dissent.

POPE, Chief Judge, dissenting.

I write separately because I believe it is necessary to address the question left unanswered by the majority: may a first offender record be used to impeach a witness in a criminal case?

There are several ways to impeach a witness. See OCGA §§ 24-9-82 through 24-9-84. One way a witness may be impeached is to present evidence that the witness has been convicted of a felony or a crime involving moral turpitude. Giles v. Jones, 169 Ga.App. 882, 315 S.E.2d 440 (1984); OCGA § 24-9-84. Georgia law specifically provides that upon fulfillment of the terms of probation under the first offender statute, "the defendant shall be discharged without court adjudication of guilt [and] shall not be considered to have a criminal conviction." (Emphasis supplied.) OCGA § 42-8-62. "This provides the person who successfully completes his probation under the first offender statute protection against the stigma of a criminal record." Witcher v. Pender, 260 Ga. 248, 249, 392 S.E.2d 6 (1990). I have long held the view that this plain language of the statute precludes the use of a first offender record to impeach a witness by showing conviction of a felony or crime involving moral turpitude. Hightower v. General Motors Corp., 175 Ga.App. 112, 115-118, 332 S.E.2d 336 (1985) (Pope, J., dissenting). It is also my belief that such a use would contravene the obvious intent of the legislature in enacting the first offender statute.

In Favors v. State, 234 Ga. 80, 214 S.E.2d 645 (1975), our supreme court considered whether a defendant in a criminal case was entitled to impeach a witness for the State by use of the witness' first offender record. The court in Favors stated the issue as follows: "we are called upon here, as a matter of first impression in this state, to undertake to balance the protection afforded by law to a first offender with the right of a person accused of [a] crime to cross examine the witnesses called against him. Shall the rights of the first offender, or those of the defendant charged with a crime, be protected at the expense of the other?" Id. at 86, 214 S.E.2d 645. In deciding this issue, the court recognized both that a " 'conviction' [as opposed to the fact of indictment, arrest or trial] is critical to impeachment by prior conviction of [a] crime" and that a defendant who has been accorded first offender treatment "shall thereafter not be considered to have a criminal conviction." (Citation and punctuation omitted.) Id. at 86, 214 S.E.2d 645. However, the court concluded that "balancing the rights of a first offender to be protected against having the stigma of a criminal record as opposed to the rights of a defendant in a criminal case to impeach the testimony of the witnesses against him, the latter prevails." Id. at 87, 214 S.E.2d 645. See also Gilstrap v. State, 250 Ga. 814, 301 S.E.2d 277 (1983) (following Favors, holding trial court erred in refusing to allow defendant to impeach State's witness with first offender record).

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