McGraw v. State, A90A2381

• Decision Date: 13 February 1991
• Docket Number: No. A90A2381,A90A2381
• Citation: 199 Ga.App. 389,405 S.E.2d 53
• Parties: McGRAW v. The STATE.
• Court: Georgia Court of Appeals

Page 53

405 S.E.2d 53

199 Ga.App. 389

McGRAW v. The STATE.

No. A90A2381.

Court of Appeals of Georgia.

Feb. 13, 1991.

Rehearing denied March 28, 1991.

Certiorari Denied May 15, 1991.

Watson & Watson, Herman A. Watson III, for appellant.

C. Andrew Fuller, Dist. Atty., Leonard C. Parks, Jr., Thomas W. Malone, Asst. Dist. Attys., for appellee.

Thomas W. Malone, Atlanta, amicus curiae.

BEASLEY, Judge.

McGraw was found guilty of unlawfully and without authority and with intent to commit a theft therein entering the Hall County Courthouse Annex property and evidence room and unlawfully taking more than 28 grams of cocaine and a mixture with a purity of ten percent or more of cocaine. The case had been transferred from the juvenile court. See In the Interest of T.M., 195 Ga.App. 342, 393 S.E.2d 448 (1990). Following denial of his motion for new trial, as amended, he appeals his convictions for trafficking in cocaine, OCGA § 16-13-31(a)(1), burglary, OCGA § 16-7-1(a), and felony theft by taking, OCGA § 16-8-2. He was not sentenced on the theft charge because it was deemed merged with the burglary as a matter of fact.

Appellant filed 17 enumerations of error, denominated "A" through "Q" inclusive and, six weeks later, one "supplemental" enumeration and supporting brief. See Court of Appeals Rule 27(a). The late documents will not be considered inasmuch as enumerations of error may not be amended after the original filing time has expired and an additional brief cannot be used to argue enumerations not addressed in the original brief. See Zilka v. State, 194 Ga.App. 471, 472, 391 S.E.2d 23 (1990); Quick v. State, 166 Ga.App. 492, 493(1), 304 S.E.2d 916 (1983). Appellant's timely enumerations will be addressed in numbered divisions rather than by letter and in a sequence attempting greater clarity of the issues raised. Expansions and enlargements of the enumerated errors in the brief are not considered. Newberry v. State, 184 Ga.App. 356, 357(1), 361 S.E.2d 499 (1987). We have considered an amicus curiae brief addressing solely Enumerations N & P regarding the conduct of voir dire.

1. Appellant contends that the trial court erred in denying his "Motion to Dismiss the Indictment" on the merits and on the bases that the motion was improper in style and untimely (Enumeration A).

Pretermitting questions of style and timeliness, the substantive challenge to the indictment, i.e., that count 1, the trafficking charge, did not adequately set out the crime and that the dates of the alleged offenses were not sufficiently stated, was without merit. Count 1 stated the essence of the trafficking statute; the time frame alleged, between September 1, 1985 and September 20, 1987, was a sufficient allegation as to dates. It does not appear that the failure to allege a specific date, which defendant knew was unknown to the State, "materially affected his ability to present a defense." Massengale v. State, 164 Ga.App. 57, 58(1), 296 S.E.2d 371 (1982). See Hutton v. State, 192 Ga.App. 239, 241(4), 384 S.E.2d 446 (1989).

2. Appellant contends that he should be granted a new trial because the trial court so interfered with appointed trial counsel's performance that appellant was denied effective assistance of counsel as guaranteed under the Sixth Amendment to the Federal Constitution (Enumeration N). He targets the court's requiring trial counsel, prior to trial, to reveal intended questions for voir dire and thus to reveal intended trial strategy. Trial counsel is appointed appellate counsel.

(a) Counsel's assertion of his own ineffectiveness in this regard was not raised in appellant's motion for new trial, "supplemental motion for new trial," or "extraordinary motion for new trial," nor is there any indication by citation to the record that it was raised before the trial court. Appellant has waived the issue. Dawson v. State, 258 Ga. 380, 369 S.E.2d 897 (1988); Smith v. State, 255 Ga. 654, 341 S.E.2d 5 (1986).

(b) Control of the pursuit of voir dire is within the trial court's sound legal discretion, see Whitlock v. State, 230 Ga. 700, 706(5), 198 S.E.2d 865 (1973). Requiring submission of proposed voir dire by criminal defense counsel has been upheld absent a finding of manifest abuse of discretion by the trial court. See Thompson v. State, 154 Ga.App. 704, 705(2), 269 S.E.2d 474 (1980). We find none which prejudiced defendant.

3. Appellant contends that the trial court erred in refusing to allow trial counsel to ask certain questions on voir dire and thereby deprived him of a meaningful voir dire and a fair trial (Enumeration P). Appellant lists 36 questions which he claims the trial court refused to allow and cites a portion of the transcript where counsel "objected, and perfected the record in that regard."

(a) The citation to the exchange between the court and defense counsel reflects that defense counsel did not make any objection to the court's decision on each question but

lodged only a bare objection at the conclusion of the court's rulings without giving any basis. This court will not consider a basis of objection which was not considered by and ruled on by the trial court. See Brinson v. State, 191 Ga.App. 151, 152(2), 381 S.E.2d 292 (1989).

(b) The citation reveals significant disparity between the number and denomination of the proposed questions ruled on in the exchange and those which appellant now sets forth. The trial court mentions 33. Because of such disparity, it is impossible to tell with certainty, even from review of the actual individual voir dire, which has not been cited by appellant, what questions were omitted and whether or not any omission was the result of the court's ruling or of defense tactics. Appellant has not shown a violation of OCGA § 15-12-133.

4. Appellant contends the court erred in denying his motion in limine asking that the State's witnesses be instructed not to mention any drug use on the part of appellant on the basis that such evidence would improperly place his character in issue (Enumeration B).

Appellant's objection at trial was not so broad. Defense counsel requested no mention of drug use unless the State could "lay the proper foundation--unless it [was] connected to the [missing] cocaine." Counsel opined that in such instance, the evidence might be introduced as a similar act. The State responded that evidence of drug usage was part of the res gestae and relevant to the question of motive for taking the cocaine. The court ruled that it would allow evidence of appellant's drug usage limited to the time frame of the indictment.

The correctness of the court's ruling is moot because appellant fails to allege or demonstrate that the State presented any evidence of his drug use either before, during, or after the period alleged in the indictment. Appellant was not harmed by the court's ruling. "In order for an alleged error to be grounds for reversal, appellant must show not only error, but also ensuing harm. [Cit.]" Bowen v. State, 170 Ga.App. 49, 50(1), 316 S.E.2d 33 (1984).

5. Appellant contends that the court erred in denying his motion in limine seeking to prohibit the State from introducing testimony or other evidence that he was a co-defendant in a pending indictment with State's witness Lowe (Enumeration C).

Appellant cannot now complain of any error in denying the motion because he himself induced the court's action and introduced the subject evidence. See Griffith v. State, 188 Ga.App. 789, 790, 374 S.E.2d 359 (1988). The court denied the motion essentially on the representation by appellant's counsel that he intended to introduce evidence of the pending charge in cross-examination of Lowe, reasoning that such action by appellant's own counsel would open the door for the State. Through cross-examination and the introduction of certain exhibits, the defense itself rather than the State made the jury aware of appellant's involvement in the unrelated pending charge.

6. Appellant's contention that the trial court erred in allowing the State to bolster Lowe's testimony (Enumeration D) is considered abandoned because he fails to provide any supporting legal authority or to make any supporting legal argument. Court of Appeals Rule 15(c)(2).

7. Appellant contends that the trial court erred in allowing a GBI agent to testify to hearsay, that he spoke with appellant's mother and that she gave the agent a list of appellant's associates (Enumeration E).

Appellant did not object at trial, as he now does on appeal, to testimony about obtaining the list but only to revelation of the names on the list. Moreover, an objection based on hearsay was inappropriate. OCGA § 24-3-1(a).

8. Appellant contends that the trial court erred in allowing a detective to testify that a set of scales and vial, commonly known as drug paraphernalia, were found atop a hutch in the living room in appellant's girl friend's apartment at a time when appellant was on the premises, constituting the improper introduction of his character into evidence (Enumeration G).

The testimony was elicited by the State in direct rebuttal of appellant's earlier testimony on cross-examination that he did not recall whether any drug items were in the apartment in which he spent a considerable amount of time, but that scales were not. "A witness may be impeached by disproving the facts testified to by him." OCGA § 24-9-82. Even if drug familiarity or usage by appellant, i.e., bad character, could be inferred from the presence of the drug paraphernalia, appellant "may not use the character evidence rule [OCGA § 24-9-20(B) ] as a sword." State v. Byrd, 255 Ga. 665, 667, 341 S.E.2d 455 (1986).

9. Appellant contends that the trial court erred in not allowing him to introduce defendant's exhibit 4, an alleged affidavit by State's witness Passmore containing prior consistent statements (Enumeration F).

This court is unable to review the trial court's initial ruling because appellant fails to point out where...