Hicks v. State

• Decision Date: 12 January 1982
• Docket Number: No. 62854,62854
• Citation: 288 S.E.2d 604,160 Ga.App. 893
• Parties: HICKS v. The STATE.
• Court: Georgia Court of Appeals

Page 604

288 S.E.2d 604

160 Ga.App. 893

HICKS v. The STATE.

No. 62854.

Court of Appeals of Georgia.

Jan. 12, 1982.

L. Howard Freeman, Jr., Valdosta, for appellant.

H. Lamar Cole, Dist. Atty., Fred R. Simpson, Asst. Dist. Atty., Valdosta, for appellee.

CARLEY, Judge.

Appellant appeals from his conviction of theft by taking.

1. Appellant was jointly indicted and tried with two co-defendants. All three defendants had been present at the scene of the theft. While the actual seizure of the property had been perpetrated in the front of the store by one of the co-defendants appellant was at the back engaging a store employee in "dumb" conversation concerning merchandise. During the subsequent investigation of the crime the police found "an automobile that might be connected with this case." The automobile was impounded and inventoried. In the inventory, three traffic tickets were discovered, one issued to a co-defendant and two to appellant. At trial the state was apparently prepared to offer the three traffic tickets into evidence on the theory that finding the citations, which had been issued a few days prior to the crime, in the same vehicle demonstrated that appellant and the co-defendant were acquainted, and thus that appellant's presence at the scene of the crime was not a mere fortuitous circumstance but was, in light of his other actions at the scene, for the purpose of facilitating the theft. See Jackson v. State, 225 Ga. 39, 44(4), 165 S.E.2d 711 (1969). In other words, it was the state's position that the evidence demonstrating a prior acquaintance tended to establish that appellant's connection with the crime was more than merely being present at the scene and that the tickets tied together the circumstantial evidence identifying appellant as a party to the theft. See Hanson v. State, 143 Ga.App. 200, 201(2), 237 S.E.2d 699 (1977).

Outside the presence of the jury the trial court determined that the three traffic tickets would not be admitted into evidence. However, the trial court agreed to allow testimony concerning the circumstances under which certain "pieces of paper" were found which contained the names of the co-defendant and appellant but that these "pieces of paper" could not be referred to as "traffic tickets". The witness for the state was so instructed. The jury returned and the witness began his testimony concerning the "certain pieces of paper." During the course of that testimony the witness made reference to "two tickets". At the request of defense counsel, the jury was removed from the courtroom and a motion for mistrial was made on the ground that the witness had interjected the character of appellant into issue with the reference to "two tickets". The trial court refused to grant a mistrial or to give curative instructions. Appellant enumerates as error the failure to grant a mistrial or to give instructions that the testimony be disregarded.

Even assuming without deciding that the traffic tickets themselves were not otherwise admissible into evidence for the reasons discussed above, we find no error in the refusal to grant a mistrial premised upon a passing reference to "tickets" which were not otherwise identified as traffic citations. See generally Creamer v. State, 229 Ga. 704, 707(2), 194 S.E.2d 73 (1972); Moss v. State, 136 Ga.App. 241, 242(1), 220 S.E.2d 761 (1975). Merely that there were "two tickets" containing appellant's name thereon, did not place his character into evidence. Nor was it error to fail to give curative instructions. As discussed above, the testimony did not place appellant's character into issue and, even assuming that the passing and apparently inadvertent reference to "tickets" violated the tenor of the trial court's instructions to the witness, the giving of curative instructions to disregard the testimony might well have intimated to the jury that the nature of the "tickets" was much more sinister than had been indicated by the mere innocent reference to them as such. Under such circumstances an instruction would hardly be "curative".

2. Appellant enumerates as error the admission into evidence of his out-of-court inculpatory statement which he gave to the police. At the hearing on the voluntariness of appellant's statement, the state made a prima facie showing. See Harrington v. State, 139 Ga.App. 428, 228 S.E.2d 591 (1976). However, the statement of one of appellant's co-defendants was subsequently, and perhaps erroneously, ruled inadmissible on the basis that it was induced by the promise of a low bond which the trial court found to be an impermissible "hope of benefit". See Ramey v. State, 145 Ga.App. 812(2), 245 S.E.2d 45 (1978); Cline v. State, 153 Ga.App. 576, 578(4), 266 S.E.2d 266 (1980). Compare Hickox v. State, 138 Ga.App. 882, 883(4), 227 S.E.2d 829 (1976). At that point appellant unsuccessfully renewed his objection to the admissibility of his own statement. Appellant's argument that his statement was likewise inadmissible is premised upon the contention that his co-defendant had related to him the "hope of benefit" which had induced the co-defendant's inadmissible statement. This argument is without merit. The fact that the statement of the co-defendant may have been obtained in violation of his constitutional rights does not automatically demonstrate that appellant's statement was likewise inadmissible. See Sims v. State, 243 Ga. 83, 84(2), 252 S.E.2d 501 (1979). At the hearing on the admissibility of appellant's statement, the co-defendant testified that the officers did not tell him to relate any "promise" to appellant and that the officers did not ask the co-defendant to induce appellant into making a statement to them. Rather, the co-defendant "just did that on [his] own." It is further apparent from the evidence adduced at the hearing on the admissibility of appellant's statement that the trial court was authorized to find that appellant's decision to make his statement was prompted by the unsolicited advice of his co-defendant, who had apparently told appellant that his own statement had already implicated appellant. After appellant signed a waiver of rights and before he made the...