Polk v. State

• Citation: 415 S.E.2d 506,202 Ga.App. 738
• Decision Date: 10 February 1992
• Docket Number: No. A91A1809,A91A1809
• Parties: POLK v. The STATE.
• Court: Georgia Court of Appeals

Page 506

415 S.E.2d 506

202 Ga.App. 738

POLK v. The STATE.

No. A91A1809.

Court of Appeals of Georgia.

Feb. 10, 1992.

Timothy L. Eidson, Newnan, for appellant.

David E. Perry, Dist. Atty., Ronnie A. Wheeler, Asst. Dist. Atty., for appellee.

ARNOLD SHULMAN, Judge, Sitting by Designation.

Appellant James Carl Polk was convicted of aggravated assault based on evidence that he shot an acquaintance, Phillip Gammage, in the head with a pistol. The appellant testified at trial that Gammage was advancing on him with a knife at the time and that he fired in self-defense. He brings this appeal from the denial of his motion for new trial.

1. The appellant enumerates as error the admission of testimony by the arresting officer that, in response to on-the-scene questioning, the appellant admitting having shot the victim. The appellant objected to this testimony on the ground that the state had failed to provide him with a copy of the statement prior to trial in compliance with his request under OCGA § 17-7-210 for copies of any statements made by him while in police custody. The trial court overruled the objection based on a finding that the appellant was not in police custody at the time he made the statement. We find no error. See generally Baker v. State, 193 Ga.App. 498, 499(2)(a), 388 S.E.2d 402 (1989). Moreover, because this evidence was fully consistent with all of the other evidence in the case, including both the appellant's own testimony and supporting testimony introduced by him to the effect that he had shot the victim in self-defense, its admission was clearly harmless to him. See generally Christopher v. State, 190 Ga.App. 393(3), 379 S.E.2d 205 (1989).

2. The appellant contends that the trial court erred in denying his motion for mistrial after the state's attorney attempted to impeach a defense witness by questioning him about an aggravated assault indictment which had been returned against him in 1986. It is apparent that at the time the state's attorney began this questioning, he was under the mistaken impression that the witness had been convicted of aggravated assault. In fact, however, the witness had pled guilty to the lesser offense of simple assault; and upon realizing this the state's attorney abandoned this line of questioning. In denying the appellant's motion for mistrial, the trial court stated that it was "going to attempt to do its best to correct the impression left by counsel for the state in his unwise ... tactic...." However, the court did not thereafter give any instructions to the jury regarding the matter.

"A witness may be impeached by showing conviction of a crime involving moral turpitude. [Cit.] The fact of conviction must be shown by record evidence and not by testimony. [Cit.]" Johnson v. State, 144 Ga.App. 406(1), 240 S.E.2d 919 (1977). "[E]ven competent proof of an offense not involving moral turpitude, or incompetent proof of an offense involving moral turpitude, such as a mere indictment or a charge or an arrest or a trial and acquittal, are not legal methods of impeachment. [Cits.]" Whitley v. State, 188 Ga. 177, 179(5), 3 S.E.2d 588 (1939). Accord Strickland v. State, 166 Ga.App. 702, 305 S.E.2d 434 (1983).

"Our Supreme Court has declared that crimes involving moral turpitude are 'restricted to the gravest offenses, consisting of felonies, infamous crimes, and those that are malum in se and disclose a depraved mind. (Cit).' [Cits.]" Seaboard, etc., R. Co. v. West, 155 Ga.App. 391, 393, 271 S.E.2d 36 (1980). Accord Hall v. Hall, 261 Ga. 188, 402 S.E.2d 726 (1991) (holding that DUI is not such an offense). While the state contends, without benefit of any supporting authority, that the misdemeanor offense of simple assault falls into this category, this court has previously held that such offenses as simple battery, see Jabaley v. Mitchell, 201 Ga.App. 477, 411 S.E.2d 545 (1991), and "fighting," see Curry v. State, 17 Ga.App. 312(1), 86 S.E. 742 (1915), are not crimes involving moral turpitude. It necessarily follows that the offense of simple assault likewise is not a crime involving moral turpitude.

The witness in question was crucial to the defense in that he was the only eyewitness (other than the victim and the appellant) to testify, and he corroborated the appellant's claim that the victim was brandishing a knife immediately prior to the shooting. Therefore, the state's improper attempt to impeach his credibility by questioning him about his past indictment for aggravated assault cannot be viewed as harmless. Accordingly, pretermitting whether any curative instructions would have...