Lanzo v. State, 76036
Decision Date | 15 June 1988 |
Docket Number | No. 76036,76036 |
Parties | LANZO v. The STATE. |
Court | Georgia Court of Appeals |
Cliffe L. Gort, Atlanta, for appellant.
Thomas C. Lawler III, Dist. Atty., Scott A. Smeal, Thomas A. Devlin, Jr., Asst. Dist. Attys., for appellee.
Defendant Anthony James Lanzo and co-defendant George T. Hudson were charged with possession of cocaine with the intent to distribute in violation of the Georgia Controlled Substances Act. Following a jury trial, defendant was found guilty; the co-defendant was found guilty but mentally ill. Defendant's motion for a new trial was overruled and he now appeals. Held:
1. State v. Johnson, 246 Ga. 654, 655, 272 S.E.2d 321. Accordingly, the trial court did not err in admitting evidence that defendant engaged in other cocaine transactions (with the same agent of the Georgia Bureau of Investigation (GBI) who testified against defendant in this case) only months before the transaction in question.
2. In his second enumeration of error, defendant contends the trial court erred in allowing evidence which prejudicially placed his character in issue. This enumeration is made up of several parts.
(a) First, defendant complains that his character was impermissibly placed in evidence when a GBI agent testified that he was told by a confidential informant that defendant could obtain large quantities of cocaine. We cannot consider this complaint because it was not raised in the trial court. Bowen v. State, 173 Ga.App. 361, 362(4), 326 S.E.2d 525.
(b) Next, defendant asserts the trial court erred in denying a motion for mistrial which was made following an allusion to a "probation hearing." The reference was made by a GBI agent upon direct examination. The agent was asked if a tape recording had ever been removed from the evidence room. The agent replied: "It was taken out during a probation--" At that point, the prosecutor interrupted: "Was it taken out for a hearing of some sort?" Thereupon, defense counsel informed the court she wished to make a motion outside the presence of the jury. The trial court instructed the jury to disregard the prosecutor's question and it instructed the officer not to respond to it. Then the jury was sent out and defense counsel moved for a mistrial. The trial court heard argument upon the mistrial motion and it was denied. Before the jury returned, the trial court asked defense counsel whether further curative instructions were desired. She replied negatively.
Devine v. State, 183 Ga.App. 322, 323, 359 S.E.2d 6. It cannot be said the trial court abused its discretion in this case. In the first place, the allusion to a "probation hearing" did not necessarily put defendant's character in issue. See generally Yarber v. State, 159 Ga.App. 392, 283 S.E.2d 620; Heaton v. State, 180 Ga.App. 718(1) (350 S.E.2d 480). Such a hearing could have been held with regard to others. Additionally, the trial court immediately instructed the jury to disregard the prosecutor's question and it instructed the officer not to answer the question. Finally, the trial court offered to take further corrective action if defendant's counsel deemed it necessary. Under these circumstances, we find no error. See Hambrick v. State, 256 Ga. 148, 149(1), 344 S.E.2d 639.
(c) Defendant also contends it was error for the trial court to permit the introduction into evidence of a tape recorded conversation between defendant and a GBI agent. In this regard, defendant points out that the tape put defendant's character in issue since he was heard to brag about his cocaine and heroin connections. No such objection to the taped conversation was raised in the trial court. It will not be considered for the first time on appeal. Tolbert v. State, 180 Ga.App. 703, 704(3), 350 S.E.2d 51. Even if such an objection had been raised, we would find no error. Worthy v. State, 180 Ga.App. 506, 508(3), 349 S.E.2d 529.
(d) Finally, defendant posits that it was error to allow the State to introduce a "prejudicial" photograph depicting defendant on the day of his arrest "with long hair." We find no error. See Dorsey v. State, 183 Ga.App. 409(1), 359 S.E.2d 195.
3. In his third enumeration of error, defendant contends the trial court erred in charging the jury on three occasions (twice during the trial and in the general charge) concerning the law of "similar transactions." We cannot see how defendant was harmed by these correct statements of the law. The third enumeration of error is without merit.
4. In its charge to the jury, the trial court often referred to defendant and his co-defendant plurally. For example, the jury was charged: ...
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