Hunter v. State

• Citation: 202 Ga.App. 195,413 S.E.2d 526
• Decision Date: 05 December 1991
• Docket Number: No. A91A0899,A91A0899
• Parties: HUNTER v. The STATE.
• Court: Georgia Court of Appeals

Page 526

413 S.E.2d 526

202 Ga.App. 195

HUNTER v. The STATE.

No. A91A0899.

Court of Appeals of Georgia.

Dec. 5, 1991.

Wood, Odom & Edge, D. Scott Cummins, Newman, for appellant.

William G. Hamrick, Jr., Dist. Atty., Agnes T. McCabe, Asst. Dist. Atty., for appellee.

CARLEY, Presiding Judge.

Appellant was tried before a jury and found guilty of selling cocaine in violation of the Controlled Substances Act. He appeals from the judgment of conviction and sentence entered by the trial court on the jury's guilty verdict.

1. Appellant enumerates the general grounds.

Appellant was positively identified by the officer to whom the sale had been made. Appellant did not seek to suppress the officer's identification testimony. Moreover, the record clearly discloses that there was no viable basis upon which suppression of the officer's identification testimony could have been sought. It was only after the officer had already been given the name of the individual from whom he had purchased the cocaine that he viewed a photograph of appellant to confirm that appellant was in fact that individual. Thus, the photograph did not result in the officer's identification of appellant as the suspect, but merely corroborated that the suspect had been properly identified to the officer as appellant. "This was not an impermissibly suggestive procedure such as a photo 'line-up' containing one picture, but was more a matter of detection." Smith v. State, 192 Ga.App. 144, 145(2), 384 S.E.2d 677 (1989). See also Curtis v. State, 183 Ga.App. 6(1), 357 S.E.2d 849 (1987). The evidence adduced at trial, when construed most favorably for the State, was sufficient to authorize a rational trior of fact to find proof of appellant's guilt beyond a reasonable doubt. Jackson v. Virginia, 443 U.S. 307, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979).

2. Appellant made a motion for a "non-suggestive" lineup, urging in support thereof that his identification by the officer had been tainted by an impermissibly suggestive procedure. The denial of this motion is enumerated as error.

When it is alleged that identification testimony has been tainted by a purported impermissibly suggestive pre-trial procedure, the defendant is clearly entitled to file a motion to suppress that testimony. No reason is suggested as to why this remedy is not otherwise sufficient to protect the rights of an accused. In any event, there was no impermissibly suggestive pre-trial identification procedure employed in the instant case, for the reasons given in Division 1. Since the circumstance upon which appellant had predicated his motion did not exist, it was not error to deny that motion.

3. Appellant enumerates as error the admission into evidence of his prior drug conviction.

The State has the burden of adducing sufficient evidence of an accused's guilt beyond a reasonable doubt and the trial court has the responsibility of determining whether the evidence upon which the State relies is admissible for the jury's consideration. The State's burden is implacable, but the trial court's responsibility is not. The accused has a concomitant duty to object to the admission of any evidence upon which he contends the State erroneously relies in meeting its burden. "It is well settled that while evidence may be subject to objection yet if no objection is made in the trial court, or if the only objection made is not good, no reversible error is committed by the trial court in allowing the evidence to be submitted. [Cits.]" Salem v. State, 228 Ga. 186, 187-188(3), 184 S.E.2d 650 (1971). The instant enumeration does not assert the general grounds and urge that the State failed to meet its burden of proof as to appellant's guilt. The instant enumeration asserts error only as to an evidentiary ruling and urges that the trial court erred in allowing the jury to consider certain evidence. Accordingly, our consideration is necessarily limited to such specific objections to the admission of that evidence as were raised below. " ' "In order to raise on appeal contentions concerning admissibility of evidence 'the specific ground of objection must be made at the time the evidence is offered, and a failure to do so will be considered as a waiver. All evidence is admitted as a matter of course unless a valid ground of objection is interposed.' [Cits.]" ' [Cit.]" (Emphasis supplied.) Doughty v. State, 175 Ga.App. 317, 321(5), 333 S.E.2d 402 (1985).

In Stephens v. State, 261 Ga. 467, 469(6), 405 S.E.2d 483 (1991), the Supreme Court held that "the [S]tate's establishment[, in a pre-trial hearing conducted pursuant to Uniform Superior Court Rule 31.3(b),] of a prima facie case of similarity [of prior crimes] does not satisfy its obligation to present proof on that issue at trial." (Emphasis supplied.) See also Williams v. State, 261 Ga. 640, 409 S.E.2d 649 (1991). A review of the record in the instant case clearly shows, however, that the evidentiary issue discussed in Stephens and Williams was not preserved for appellate review. Accordingly, the holding in Stephens and Williams is clearly not a viable predicate for reversing appellant's conviction.

What the instant record shows is the following: At the pre-trial hearing to determine the admissibility of appellant's prior conviction, appellant never objected on the ground that his prior conviction was not shown by the State to be sufficiently "similar" to the crime that he was charged with having committed in the instant case. Instead, appellant urged only that his prior conviction antedated the instant crime to such an extent that it was too "remote" to warrant its admissibility and that any limited relevancy that his prior conviction might have on the issue of identity would be outweighed by its prejudicial impact upon the jury. Over these objections, the trial court ruled that appellant's prior conviction would be admissible at trial, but suggested that appellant might renew his objection when his prior conviction was offered for admission during the trial.

At trial, the State produced the testimony of a police officer and then tendered a certified copy of appellant's prior indictment, plea of guilty and sentence. Again, appellant never objected on the ground that the State's evidence was otherwise insufficient to show that his prior conviction had been for a crime sufficiently similar to the crime that he was charged with having committed in the instant case. Instead, appellant, apparently accepting the suggestion made by the trial court at the pre-trial hearing, urged only that he was "renew[ing] [his] objection." (Emphasis supplied.) Thus, the only objections that appellant ever raised at trial were that his prior conviction was too "remote" and that the prejudicial impact of his prior conviction outweighed its limited relevancy on the issue of identity.

The very first time that appellant has ever urged that the State failed to meet its evidentiary burden of showing that his prior conviction was for a sufficiently "similar" crime is in the brief that he filed with this court in support of the instant appeal. However, nothing in Stephens or Williams suggests that the Supreme Court has determined to dispense with the long-standing rule that, to warrant appellate consideration, an objection to the admission of evidence must first have been raised in the trial court. If the argument that appellant advances in his brief had been raised in the form of an objection in the trial court, it is possible that Stephens and Williams might warrant a reversal of appellant's conviction. In the absence of such an objection, however, any discussion of Stephens or Williams in the instant case is inappropriate.

With regard to the admission of appellant's prior conviction, the only issues that are legitimately presented for resolution are whether it was too "remote" and whether it was more prejudicial than relevant. The prior conviction antedated the instant crime by only 1 1/2 years and the trial court was authorized to find that "remoteness" was not an impediment to the admissibility of the prior conviction. See generally Cox v. State, 197 Ga.App. 240(2), 398 S.E.2d 262 (1990). Likewise, the trial court was authorized to find that the relevance of appellant's prior conviction on the issue of identity outweighed its prejudicial effect. See generally Sanford v. State, 196 Ga.App. 103, 104(1), 395 S.E.2d 373 (1990). Accordingly, when consideration of the instant appeal is confined to only those issues that are properly before us, a reversal is not mandated. Reversal of the trial court is not authorized on the basis of an evidentiary ruling that the trial court was never called upon to make.

4. Appellant enumerates as error the admission of certain testimony by a police officer, over the objection that such testimony related to "other transactions" and was irrelevant under OCGA § 24-2-2. Assuming, without deciding, that the testimony was irrelevant, it was not so prejudicial as to render its admission reversible error.

5. Appellant urges that he was denied his right to poll each juror individually.

If, on being polled, a juror's response demonstrates that no unanimous verdict has been reached, the proper remedy is for the trial court to direct the jury to retire for further deliberations. Walker v. State, 159 Ga.App. 50(1), 282 S.E.2d 697 (1981). There is no requirement that the poll be continued after one juror's response has demonstrated a lack of unanimity. The record demonstrates that each juror was individually polled before the trial court accepted the jury's ultimate and unanimous guilty verdict. Accordingly, there was no error.

6. Appellant enumerates as error the trial court's giving of an Allen charge.

The charge was couched in language upheld in Spaulding v. State, 232 Ga. 411, 413(4), 207 S.E.2d 43 (1974). Whether to give such a charge is generally a discretionary matter for the trial court. Banks v. State, 169 Ga.App. 571, 572(2), 314...