Johnson v. State

• Decision Date: 07 June 1989
• Docket Number: No. A89A0694,A89A0694
• Citation: 383 S.E.2d 346,191 Ga. App. 845
• Parties: JOHNSON v. The STATE.
• Court: Georgia Court of Appeals

Page 346

383 S.E.2d 346

191 Ga.App. 845

JOHNSON v.The STATE.

No. A89A0694.

Court of Appeals of Georgia.

June 7, 1989.

John C. Campbell, Jonesboro, for appellant.

Robert E. Keller, Dist. Atty., and Todd E. Naugle, Asst. Dist. Atty., for appellee.

POPE, Judge.

DefendantMark Johnson appeals his conviction of theft by taking in regard to a 1988 Dodge Dynasty automobile.We affirm.

1.During a Jackson-Denno hearing outside the presence of the jury the trial court granted defendant's motion in limine and instructed the prosecutor and the prosecuting witness (the arresting officer) that testimony could not be presented concerning any statements made by the defendant to the arresting officer which were not disclosed to the defendant prior to trial in response to defendant's demand for disclosure of custodial statements brought pursuant to OCGA § 17-7-210.At that point in the trial, the arresting officer had already testified without objection that defendant had given him a false driver's license and had admitted to the officer that the license belonged to someone else.This statement by the defendant had not been previously disclosed to the defendant.After the motion in limine was granted, the officer testified that, in response to his request for information by which he could be identified, defendant provided him with several telephone numbers and the address where defendant's girl friend lived.The defendant objected to this testimony because it concerned custodial statements by the defendant which also were not disclosed prior to trial and thus violated the court's order in limine.The trial court denied defendant's motion for mistrial and instead specifically instructed the jury to disregard the officer's testimony that defendant gave him a driver's license number, gave him certain telephone numbers and told the officer where his girl friend lived.Defendant argues the court erred in denying his motion for mistrial because the improper testimony was so prejudicial that no instruction could eradicate its effects from the minds of the jurors.

As to the testimony that defendant had given the officer a false driver's license, defendant's objection was untimely.Where an objection pursuant to OCGA § 17-7-210 is not made at the time the testimony was offered, the objection is waived.Cloud v. State, 169 Ga.App. 51(2), 311 S.E.2d 491(1983);Henderson v. State, 162 Ga.App. 320(3), 292 S.E.2d 77(1982).The testimony concerning telephone numbers given to the officer and the address of defendant's girl friend are not, per se, inculpatory.If this testimony is inculpatory at all it is only because the officer testified he made at least twenty-five telephone calls in an attempt to determine defendant's identity but was unsuccessful.However, evidence that defendant had provided conflicting information concerning his identity had already been presented to the jury by the officer's earlier testimony that defendant had given him three different Social Security numbers.Because the testimony in question was not inculpatory, and because it was cumulative of other evidence already before the jury, the court did not err in denying defendant's motion for mistrial.SeeLedesma v. State, 251 Ga. 487(5), 306 S.E.2d 629(1983);Hilburn v. State, 166 Ga.App. 357(3), 304 S.E.2d 480(1983).

2.The court did not err in denying defendant's motion for mistrial on the ground that testimony of a prosecution witness impermissibly placed his character in evidence.The manager of the automobile rental agency which owned the car and reported it to be stolen testified that he had seen defendant once before on the premises of the rental agency and that he had gone to "the prison" to identify defendant.Subsequent testimony made it abundantly clear to the jury that the witness was asked to identify the defendant on the day...