Henderson v. State

• Decision Date: 09 February 1982
• Docket Number: No. 62936,62936
• Citation: Henderson v. State, 288 S.E.2d 284, 161 Ga.App. 211 (Ga. App. 1982)
• Parties: HENDERSON v. The STATE.
• Court: Georgia Court of Appeals

Page 284

288 S.E.2d 284

161 Ga.App. 211

HENDERSON v. The STATE.

No. 62936.

Court of Appeals of Georgia.

Feb. 9, 1982.

John R. Thigpen, Sr., Blackshear, for appellant.

C. Deen Strickland, Dist. Atty., Richard E. Currie, Asst. Dist. Atty., for appellee.

CARLEY, Judge.

Appellant and two other individuals, Adams and King, were jointly indicted for the burglary of a convenience store. Adams and King were apprehended while still inside the burgled store. Appellant was apprehended shortly thereafter while sitting in Adams' car which had been parked on a road located approximately 100 to 150 yards from the rear of the store. Subsequently, a search of the vehicle was conducted and items identified as having been taken from the store were discovered hidden under the front dash. Appellant and his co-indictees were tried separately. Following the denial of his motion for a new trial, appellant brings this appeal from the judgment of conviction entered upon the jury verdict.

1. During the trial one of appellant's co-indictees, George Adams, appeared as a witness for the state and presented testimony implicating appellant in the burglary. On cross examination, counsel for appellant asked this witness: "As a matter of fact, Mr. Adams, you had two burglary charges up here in this term of--?" At this juncture, the state interposed, and the trial judge sustained, on objection on the basis that such question constituted improper impeachment. On appeal, appellant contends that the trial court's ruling abridged his right to a thorough and sifting cross examination of the witness.

If the question posed was an attempt to impeach this witness by showing previous acts of misconduct, the objection was properly sustained. "While a witness may be discredited by proof of general bad character or conviction of a crime involving moral turpitude, it is not competent to discredit him by showing that he has committed, been arrested for, confined for, or even indicted for such offense. [Cits.] ... It is necessary to introduce an authenticated copy of the record of the court in which he was convicted. [Cits.]" McCarty v. State, 139 Ga.App. 101, 103, 227 S.E.2d 898 (1976); Accord Grant v. State, 142 Ga.App. 606, 607, 236 S.E.2d 691 (1977).

Subsequent to the ruling complained of, however, counsel for appellant stated that the purpose of this question was to elicit testimony as to any agreement which Mr. Adams may have made with the state in exchange for his testimony. "Evidence of an understanding or agreement as to the future prosecution of an accomplice on whose testimony the case almost entirely depends is relevant to credibility. The jury is entitled to know of it, the prosecutor has a duty to disclose it, and the failure to make this disclosure violates due process. [Cits.]" Dudley v. State, 148 Ga.App. 560(5), 251 S.E.2d 815 (1978). Mr. Adams' credibility as a witness was an important issue in this case. To the extent that the sustaining of the state's objection prevented appellant from attacking Mr. Adams' credibility by showing his potential for bias or interest in this matter, the trial court erred.

However, to constitute reversible error, "prejudice or harm must be shown by the exclusion of the question asked on cross examination." Hobbs v. State, 134 Ga.App. 850(2), 216 S.E.2d 674 (1975). No prejudice is shown and any error is harmless where evidence which has substantially the same effect as that sought to be elicited is subsequently admitted and placed before the jury for consideration. Freeman v. State, 230 Ga. 85(1), 195 S.E.2d 416. The record discloses that immediately after counsel for appellant stated his purpose in propounding the question to which objection was made, the district attorney stated in his place and in the presence of the jury "that the state expects to make a recommendation to this Court in return for [Adams'] testimony." Thus, it is readily apparent that the very circumstances which appellant sought to reveal were placed before the jury for its consideration in determining Mr. Adams' credibility. Furthermore, appellant voluntarily abandoned further inquiry along these lines. For the foregoing reason we find no reversible error due to the trial court's curtailment of appellant's cross examination.

2. During the course of the trial, the state introduced the testimony of Sheriff Strickland who arrived at the scene of the burglary shortly after the apprehension of Adams and King but prior to the arrest of appellant. Over objection of appellant, Sheriff Strickland testified that he overheard co-indictee King state "there was not any one else in the store. That he was down the road on the Golf Course Road in the car down that away. He'd done left." Sheriff Strickland testified that,...