Forehand v. State

• Decision Date: 04 November 1996
• Docket Number: No. S96A1421,S96A1421
• Citation: 267 Ga. 254,477 S.E.2d 560
• Parties: , 96 FCDR 3897 FOREHAND v. The STATE.
• Court: Georgia Supreme Court

Page 560

477 S.E.2d 560

267 Ga. 254, 96 FCDR 3897

FOREHAND v. The STATE.

No. S96A1421.

Supreme Court of Georgia.

Nov. 4, 1996.

Theodore Johnson, Johnson, Prioleau & Lynch, Atlanta, for Forehand.

Lewis R. Slaton, District Attorney, Michael J. Bowers, Attorney General, Allison Beth Goldberg, Asst. Attorney General, Paula K. Smith, Senior Asst. Attorney General, Carl P. Greenberg, Asst. District Attorney, Atlanta, for State.

CARLEY, Justice.

The jury returned a verdict finding Lee Anthony Forehand guilty of malice murder. Pursuant to the grant of his motion for an out-of-time appeal, he appeals from the judgment of conviction and life sentence which the trial court entered on the jury's guilty verdict. ¹

1. The evidence, when construed most strongly in support of the verdict, shows the following: As the victim stood on a street corner, a van in which Forehand was a passenger drove up. The driver of the van confronted the victim about allegedly stolen money. Shots were fired from the van and the victim suffered mortal wounds. The van drove off, but the driver contacted the police on the following day. The driver eventually turned himself in and gave a statement implicating Forehand as the gunman. Forehand was arrested and, in a search of his house, officers discovered the murder weapon. An eyewitness to the events identified Forehand as the gunman. From this evidence, a rational trier of fact would be authorized to find proof of Forehand's guilt of the murder beyond a reasonable doubt. Jackson v. Virginia, 443 U.S. 307, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979).

2. Forehand asserts that, in several instances, the State impermissibly placed his character into evidence. One such instance relates to the cross-examination of a defense witness about his livelihood. This cross-examination appears to be merely an attempt by the State to impeach the defense witness rather than an impermissible effort to impugn Forehand's character. Indeed, Forehand initially objected only to the relevancy of this line of questioning. After the trial court overruled Forehand's relevancy objection, counsel for the State inquired as to whether the defense witness was a "drug dealer." The court then sustained Forehand's objection and he sought no further relief. Compare Fields v. State, 260 Ga. 331, 333(5), 393 S.E.2d 252 (1990) (meritorious hearsay objection erroneously overruled); Busbee v. State, 210 Ga.App. 17, 435 S.E.2d 60 (1993) (meritorious relevancy objection erroneously overruled). Since the transcript shows that the only objection to the characterization of the defense witness as a "drug dealer" was sustained below, we need not consider any possible prejudicial effect upon Forehand's own character. Compare Fields v. State, supra at 334(5), 393 S.E.2d 252 (error found to be prejudicial and, therefore, not harmless, "as the jury could have inferred that appellant kept company with a person of bad character ..., and therefore that appellant herself had a bad character."); Busbee v. State, supra at 18, 435 S.E.2d 60 (error found to be prejudicial and, therefore, not harmless, as the "question, unsupported by any evidence, clearly impugned appellant's own character by suggesting that she associated with a criminal.")

In all other instances cited by Forehand, the transcript fails to show that Forehand raised any objections which were overruled. If the transcript does not fully disclose what transpired in the trial court, Forehand had the burden to have it completed pursuant to OCGA § 5-6-41(f). Where, as here, this has not been done, there is nothing for this court to review. Howe v. State, 250 Ga. 811, 814(2), 301 S.E.2d 280 (1983).

3. Forehand urges that the identification testimony of the eyewitness was inadmissible, because the State did not comply with OCGA § 17-16-7. That statute provides, in relevant part, that

the prosecution ... shall produce for the opposing party any statement of any witness that is in the possession, custody, or control of the [S]tate or prosecution ... that relates to the subject matter concerning the testimony of the witness....

This statutory obligation is not triggered when a witness merely makes an oral statement. There can be no "possession, custody, or control" of a witness' statement which has neither been recorded nor committed to writing. OCGA § 17-16-1(1). Accordingly, if, but only if, the eyewitness' statement had been recorded or committed to writing other than in "notes or summaries made by counsel," it would be discoverable. OCGA § 17-16-1(2)(C).

Here, the transcript shows that counsel for the State informed the trial court that "[t]he only statement I have is what [the eyewitness] told me verbally...." On subsequent cross-examination of the eyewitness, Forehand did not show that, contrary to this assertion of counsel for the State, a recorded or written statement identifying Forehand had...