Favors v. State, 55540

• Decision Date: 20 April 1978
• Docket Number: No. 55540,No. 3,55540,3
• Citation: 145 Ga.App. 864,244 S.E.2d 902
• Parties: Ralph FAVORS v. The STATE
• Court: Georgia Court of Appeals

Page 902

244 S.E.2d 902

145 Ga.App. 864

Ralph FAVORS v. The STATE.

No. 55540.

Court of Appeals of Georgia,Division No. 3.

April 20, 1978.

Rehearing Denied May 9, 1978.

Joseph E. Williams, Atlanta, for appellant.

Lewis R. Slaton, Dist. Atty., Joseph J. Drolet, H. Allen Moye, Asst. Dist. Attys., Atlanta, for appellee.

DEEN, Presiding Judge.

Ralph Favors was indicted, tried, and convicted of motor vehicle theft and sentenced to five years in the state penitentiary. He appeals from an order of the trial court denying his motion for a new trial.

1. Appellant contends that the trial court allowed the state to place defendant's character in issue. During direct examination, appellant's counsel asked him: "Do you know anything else, any other facts you believe would contribute to the jury's understanding of this case?" He replied: "Well, I had no way of knowing the car was stolen. I have never dealt with anything like that before. That is why I wanted to have a jury trial." The state immediately requested the jury to retire, and out of their presence, sought permission to impeach appellant's assertion of good character by admitting a certified copy of an indictment, plea, and sentence dated September 11, 1973, which showed that appellant had committed armed robbery. The trial court granted the state's request holding that appellant had opened the door as to his good character ". . . because he is relating it to the question of theft which would indicate that he had never committed a theft before."

Code Ann. § 38-415 provides in part: ". . . no evidence of general bad character or prior convictions shall be admissible unless and until the defendant shall first put his character in issue." "In a criminal case the state cannot rebut or question the presumption of the defendant's good character unless the defendant discards the presumption thus afforded and elects to put his actual character in issue by evidence or by his statement to the jury." Bryant v. State, 65 Ga.App. 523(2), 16 S.E.2d 241, 242 (1941). However, Code Ann. § 38-1802 provides: "A witness may be impeached by disproving the facts testified to by him." Thus, while a criminal defendant is not subject to impeachment by proof of general bad character or prior convictions until he puts his general good character in evidence, he is subject to impeachment the same as any other witness. Leverette v. State, 107 Ga.App. 712, 131 S.E.2d 782 (1963). When appellant made the above statement, he was in effect, testifying that he had never committed a theft offense. Armed robbery includes theft by taking as a matter of law. Shepherd v. State, 234 Ga. 75, 214 S.E.2d 535 (1975). We find no error in the trial court's ruling that permitted his prior conviction to be introduced in evidence.

2. Appellant contends that certain remarks made by the assistant district attorney during closing argument required curative instruction by the court, but that none were given. The record shows that appellant made two objections to the line of argument pursued by the district attorney, and both objections were sustained by the trial court. Appellant, however, sought no further relief after the court made its second ruling. Instead, he apologized to the court for interfering with final argument. "It has been held by this court many times that, when improper argument is made to the jury by an attorney for one of the parties, it is necessary, in order to make the same a basis for review, that opposing counsel make proper objection to it at the time made or invoke some ruling or instruction from the court respecting it, either by way of reprimanding counsel, or of instructing the jury to disregard it, or of declaring a mistrial. A party cannot during the trial ignore what he thinks to be an injustice, take his chance on a favorable verdict, and complain later." Joyner v. State, 208 Ga. 435, 438, 67 S.E.2d 221, 224 (1951). "Failure to object amounts to a waiver." Gerdine v. State, 136 Ga.App. 561, 563, 222 S.E.2d 128, 130 (1975). This enumeration is therefore without merit.

3. In his third enumeration of error, appellant claims that the trial court erred by allowing the state to place the attorney for a co-defendant on the witness stand because such an action violated the attorney-client privilege. The trial court correctly ruled that appellant had no standing to assert a privilege belonging to a co-defendant. "The rule that communications between an attorney and his client are privileged, and that the attorney is an incompetent witness to testify thereto, can not be invoked for the benefit of other persons who are strangers to such relationship." Yarbrough v. Yarbrough, 202 Ga. 391, 403, 43 S.E.2d 329, 337 (1947).

4. Appellant also claims that the trial court erred in denying his motion for a mistrial at the close of his case. He believes that the trial court erred when it permitted counsel for the co-defendant to testify about matters involving appellant because the witness had previously represented appellant in this case and that counsel's disclosure of his withdrawal from the case because of a conflict of interest was not responsive to the question asked and prejudiced appellant in the eyes of the jury.

The record reveals that appellant objected to counsel being called as a witness by the state because he had not been sequestered and that his testimony would be incompetent evidence because it was a...