Humphrey v. State, A01A0083.
| Decision Date | 04 May 2001 |
| Docket Number | No. A01A0083.,A01A0083. |
| Citation | 549 S.E.2d 144,249 Ga. App. 805 |
| Parties | HUMPHREY v. The STATE. |
| Court | Georgia Court of Appeals |
OPINION TEXT STARTS HERE
William J. Mason, Columbus, for appellant.
David B. Humphrey, pro se.
J. Gray Conger, Dist. Atty., Margaret E. Bagley, Asst. Dist. Atty., for appellee.
There is a lesson to be learned from an unyielding line that runs throughout the length of our legal system. And its singular logic is simple: harm is the adulterant that raises error to the level of dispositional consideration. That principle, so firm and so fixed in our jurisprudence, is seldom, if ever, subject to inversal. A jury found David Humphrey guilty of robbery by intimidation. On appeal, Humphrey contends that the trial court erred in (1) admitting evidence of a similar transaction, (2) permitting the victim to make a victim impact statement, and (3) commenting on the evidence. Humphrey also contends that he received ineffective assistance of counsel. Although we agree that error was committed below, Humphrey's inability to demonstrate harm mandates affirmance.
The record reflects that on the night of October 18, 1997, a man entered a convenience store and threatened to shoot the cashier if she did not give him "all [the] twenties" in the cash register. Delorse Morgan, the cashier, testified that although she could not see a gun, the assailant had his hand under his t-shirt, and she could see the imprint of a gun underneath the shirt. Morgan gave the man the money from the cash register, and he fled the store.
When the police arrived, Morgan described the robber racially, "about five ten, five eleven, 150, maybe 60 pounds, brown hair, dark brown hair, mustache," and she said he was wearing "a white T-shirt, like a baseball cap and plaid shorts, white socks, some kind of tennis shoes." John Wright, a customer who arrived at the convenience store as the robber fled, told the police that the robber had
Shortly after the robbery, the police showed Morgan several photo lineups that did not include Humphrey's photograph, and she did not identify the robber. In January 1998, following a subsequent robbery in which Humphrey was a suspect, the police created another photo lineup that included his photograph. When Morgan was shown this photo lineup, she immediately identified Humphrey as her assailant, and Humphrey was arrested and charged with armed robbery.
During the trial, the State introduced a video taken from the convenience store, which showed the robbery, but not the robber's face. However, both Morgan and Wright identified Humphrey at trial as the man who robbed the convenience store in October 1997. The State also introduced evidence of a similar transaction. Nicholas Mane testified that, in December 1997, Humphrey and two other males robbed him of his necklace and jacket. According to Mane, Humphrey wielded a pistol during the robbery.
Based upon this evidence, the jury found Humphrey guilty of robbery by intimidation.
1. In his first enumeration of error, Humphrey contends that the trial court erred in admitting evidence of the similar transaction, arguing that it was not sufficiently similar to warrant its introduction. In order to be admissible, similar transactions do not need to be identical to the crime charged.1 Nonetheless, there must be a "sufficient connection or similarity between the independent act and the crime charged so that proof of the former tends to prove the latter."2 Moreover, such evidence must be tendered for a proper purpose because "[a] defendant's guilt may not be proved by showing the commission of other crimes to prove that the accused has a criminal nature."3
Here, the trial court purportedly admitted the evidence to establish Humphrey's bent of mind and course of conduct. Under these circumstances, the issue is not one of mere similarity, but of relevance to the issues at trial.4 Nevertheless, we do require a degree of similarity.5 Otherwise, the exception of admissibility would swallow the rule of exclusion. Here, the only similarities between the two crimes are that both occurred at night and allegedly involved a handgun. Thus, there was a marked lack of similarity, and we fail to see any relevance other than improperly establishing "that the defendant committed the crime on trial because he is a man of criminal character."6 Under these circumstances, the trial court erred in admitting evidence of the similar transaction.
Nevertheless, "error alone is not automatically grounds for a new trial but is subject to scrutiny for harmless error."7 Here, both Morgan and Wright positively identified Humphrey as the man who robbed the convenience store. Given such unequivocal eyewitness identification, it is highly unlikely that the admission of the similar transaction evidence contributed to the verdict.8 Thus, this claim of error presents no basis for reversal.
During this entire soliloquy, no objection was made. On appeal, however, Humphrey asserts that the trial court erred in allowing Morgan to make a "victim impact statement" during the middle of the trial. Pretermitting whether the trial court erred in admitting this testimony, Humphrey waived the error by failing to timely object. "It is well-settled in this state that it is too late to urge objections to the admission of evidence after it has been admitted without objection."9 Here, Humphrey never actually objected to Morgan's testimony, but merely commented that he failed to see its relevance. And, during Morgan's lengthy response, Humphrey interposed no objection. Having failed to object, Humphrey has waived this issue on appeal. 10
3. In his third enumeration of error, Humphrey asserts that the trial court erred in commenting on the evidence. During its deliberation, the jury asked to see the videotape of the robbery again. As the tape was playing, one juror asked the court to "stop [the video] of him going out the door." The trial court, apparently seeking clarification, asked, "When he leaves, Defendant goes out the door?" Humphrey argues that the court erred in commenting on the evidence by suggesting that it was the defendant leaving the store. However, as Humphrey acknowledges, no objection was made at trial. Thus, he has waived appellate review of this issue.11
4. In his fourth and final enumeration of error, Humphrey contends that he received ineffective assistance of counsel at trial. Specifically, Humphrey asserts that his trial counsel was ineffective for failing to object to the trial court's comment to the jury and failing to obtain evidence of his innocence. In order for Humphrey to prevail on this claim, he must establish (1) that his attorney's performance was deficient and (2) that he was prejudiced by such deficiency—i.e., that there is a reasonable probability that the trial would have turned out differently but for the deficient performance.12 Moreover, "[a] finding by the trial court that the defendant did not receive ineffective assistance of counsel will be affirmed unless clearly erroneous."13
With respect to trial counsel's failure to object to the trial court's comment during jury deliberation, we find no error. Pursuant to OCGA § 17-8-57, it is reversible error for any judge to "express or intimate his opinion as to what has or has not been proved or as to the guilt of the accused." However, comments that are ministerial do not violate this Code section.14 Here, the trial court was attempting to ascertain where the jurors wanted the video stopped. Thus, in asking the juror, if he wanted the tape stopped when the defendant went out the door, the trial court was merely engaging in a ministerial task. Although it would have been preferable had the trial court used the word "suspect" rather than "defendant," Humphrey's attorney's failure to object to such ill-chosen diction does not warrant reversal. Indeed, at the...
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...because the appellant failed to support his claim with any cogent argument or citation to authority).13 See Humphrey v. State, 249 Ga.App. 805, 807(1), 549 S.E.2d 144 (2001) (noting that to be admissible as a similar transaction, prior offense must both be offered for a proper purpose and t......
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...grounds for a new trial but is subject to scrutiny for harmless error." (Punctuation and footnote omitted.) Humphrey v. State, 249 Ga.App. 805, 807(1), 549 S.E.2d 144 (2001) (applying harmless error analysis to erroneous admission of similar transaction evidence). Given the eyewitness testi......