Robinson v. State, A89A0670

• Decision Date: 06 June 1989
• Docket Number: No. A89A0670,A89A0670
• Citation: 192 Ga.App. 32,383 S.E.2d 593
• Parties: ROBINSON v. The STATE.
• Court: Georgia Court of Appeals

Page 593

383 S.E.2d 593

192 Ga.App. 32

ROBINSON v. The STATE.

No. A89A0670.

Court of Appeals of Georgia.

June 6, 1989.

Rehearing Denied June 21, 1989.

Certiorari Denied Sept. 7, 1989.

Rosenzweig, Kam, Jones & MacNabb, Douglas L. Dreyer, Newman, for appellant.

William G. Hamrick, Jr., Dist. Atty., Agnes McCabe, Monique F. Kirby, Asst. Dist. Attys., for appellee.

BIRDSONG, Judge.

Appellant Bobby Lewis Robinson appeals his conviction for sale of cocaine and sentence.

Lieutenant Harris of the Troup County Sheriff's Department made a positive in-court identification of appellant as the person who sold him drugs in a local motel. Laboratory analysis confirmed that the drugs tested positive as cocaine. The appellant testified in his own behalf and denied selling drugs to Harris. He testified that he was attending a birthday party for his son, and called alibi witnesses who corroborated his testimony. Held:

Appellant's sole enumeration of error is that the trial court erred in failing to suppress his pretrial statement to the police.

Appellant objected during an out-of-court hearing to the admission of this statement on the grounds that it was not relevant, that it improperly placed appellant's character in issue; and, that admission of the statement "would unnecessarily prejudice the minds of the jury ... even with ... curative instructions." Appellant also asserted that he was not provided with the ten-day notice required by Uniform Superior Court Rule 31.1.

During the out-of-court hearing, it was established that Deputy Riggs, after advising appellant of his Miranda rights and obtaining a valid waiver thereof, questioned appellant and obtained an oral statement from him. The trial court ruled that the statement was admissible, and that the other acts of misconduct referred to in the statement did not constitute "a similar transaction."

During the State's case in chief, Detective Riggs testified concerning this statement as follows: "[Appellant] told me that he had sold cocaine before but not in 1988 and he told me he had used cocaine and said that he did not sell cocaine ... concerning this arrest. This arrest was a mistake." Appellant renewed his objection to the admission of this statement on the grounds it was hearsay and because it "improperly places the defendant's character in issue...." The trial court overruled these objections.

It is the general rule that " ' "[i]f evidence is relevant and material to an issue in (a) case, it is not inadmissible because it incidentally puts the defendant's character in issue." ' " Richie v. State, 258 Ga. 361(3), 369 S.E.2d 740; accord Stitt v. State, 256 Ga. 155(1), 345 S.E.2d 578; Dampier v. State, 245 Ga. 427(10), 265 S.E.2d 565; Hudson v. State, 237 Ga. 443, 444, 228 S.E.2d 834; see also Perez v. State, 182 Ga.App. 628(3), 356 S.E.2d 706. It is an equally well-recognized general rule that " '[w]hat is forbidden is the introduction by the state in the first instance of evidence whose sole relevance to the crime charged is that it tends to show that the defendant has bad character.' " Johnson v. State, 258 Ga. 506(3), 371 S.E.2d 396; Frazier v. State, 257 Ga. 690, 698, 362 S.E.2d 351.

In this case, the statement contained a reference to prior independent crimes committed by the appellant, specifically, the crimes of cocaine use and prior cocaine sale. These statements did not constitute an integral part of a criminal confession nor was each statement an inseparable part of the total oral statement made to Detective Riggs. Compare generally Stitt, supra at 157, 345 S.E.2d 578 with Florence v. State, 162 Ga.App. 830(1), 292 S.E.2d 923. In fact, when the two statements regarding prior offenses are deleted from the statement in question, all that remains is appellant's strong denial that he committed the charged offense. Thus, the facts of this case are clearly distinguishable from Richie, Stitt, Dampier, Hudson and Perez.

The confession contained in the appellant's statement, regarding prior use of cocaine, had nothing whatsoever to do with the conduct for which he was on trial (sale of cocaine in 1988). "Indeed, the statement cannot be construed as anything other than a denial of the offenses for which he was on trial. Thus, the only possible evidentiary function which the [confession concerning prior cocaine use] could have served as far as the state was concerned was an impermissible one, i.e., to impugn the appellant's character before the jury by showing that he was generally prone to criminal conduct." Florence, supra at 832(1), 292 S.E.2d 923.

Regarding the confession contained in the appellant's statement, regarding sale of cocaine on an unknown date prior to 1988, a somewhat different situation arises. In certain circumstances, evidence of independent crimes is admissible " ' "for the purpose of showing identity, motive, plan, scheme, bent of mind and course of conduct," ' " (emphasis supplied) Williams v. State, 257 Ga. 761, 764 n. 3(a), 363 S.E.2d 535, or for "some other rational connection with the offense for which [appellant] is being tried." Jones v. State, 257 Ga. 753, 757-758 n. 6, 363 S.E.2d 529; Hamilton v. State, 239 Ga. 72, 75, 235 S.E.2d 515. "[B]efore evidence of independent crimes is admissible two conditions must be satisfied. First, there must be evidence that the defendant was in fact the perpetrator of the independent crime. Second, there must be sufficient...