Smith v. State
| Decision Date | 07 July 1983 |
| Docket Number | No. 39715,39715 |
| Citation | 304 S.E.2d 716,251 Ga. 229 |
| Parties | SMITH v. The STATE. |
| Court | Georgia Supreme Court |
G. Terry Jackson, Savannah, for Gernard Smith.
Spencer Lawton, Jr., Dist. Atty., Savannah, David T. Lock, Asst. Dist. Atty., Michael J. Bowers, Atty. Gen., Mary Beth Westmoreland, Asst. Atty. Gen., for the State.
Gernard Smith was convicted in Chatham County of murder and given a life sentence. On appeal, Smith makes several contentions, involving admissibility of evidence, skips in the trial transcript, jury instructions, and state funds for independent psychiatric evaluations. We affirm.
Smith's wife had been having an affair with the victim, Nathaniel Hamilton, for almost a year. At the time of the shooting in January 1980, Smith and his wife had not lived together for about two years, but were not divorced. On the night in question Smith went to his wife's Savannah apartment with a gun, hoping, according to his testimony, that she would be persuaded to have sex with him. Her car was not outside and she did not appear to be home from work, so he waited nearby. He saw Hamilton arrive and testified that he thought he saw Hamilton leave shortly thereafter. After waiting about 25 minutes he concluded that his wife was at home. He approached the apartment and entered with a key he had taken from it without his wife's knowledge during an earlier attempt to meet with her. His wife, who had been home since before Smith's arrival, and Hamilton were together on the sofa. As Hamilton yelled and charged at him, Smith shot Hamilton three times and killed him. Smith stated that his wife then agreed to have sex with him in return for the gun. He gave it to her and she threw the gun out a window while Smith undressed. However, the police arrived within minutes and arrested Smith. He was tried before a jury, convicted in August 1981, and sentenced to life imprisonment.
1. In his first enumeration Smith contends that the court erred in allowing testimony to be heard by the jury which brought in evidence of his bad character. Smith testified on direct examination that his relationship with his wife was loving. The disputed evidence concerned a series of questions on cross-examination which brought out that Smith had argued and fought physically with his wife. Smith's motion for mistrial was denied and the jury was instructed to consider the questioned testimony only for purposes of impeachment. Smith contends that the state's questioning was intended to imply that Smith was guilty of a separate prior criminal act of assaulting his wife and was thus irrelevant, citing OCGA § 24-2-1 (Code Ann. § 38-201). We disagree.
Smith sought to establish on direct examination that his relationship with his wife was a caring one, albeit troubled, and that he had approached her in the recent past to try to work out the considerable differences between them. His wife rebuffed and ignored these efforts and on direct Smith described himself as confused and frustrated by her reluctance to work toward reconciliation. Such testimony by Smith put into evidence the nature of his relationship with his wife. The state simply questioned Smith further on the issue of his marriage and showed there was evidence that the testimony offered on direct examination was incomplete and in part untrue. The state did not question Smith as to matters not opened on direct examination and in no way did the state's questions suggest Smith had committed another crime for which he was not being tried. See Barnes v. State, 157 Ga.App. 582, 277 S.E.2d 916 (1981). These questions were proper and relevant for purposes of impeachment. OCGA § 24-9-82 (Code Ann. § 38-1802). Even if Smith's testimony in response to the state's questions had the effect of placing his character in issue, this was an incidental result of a proper impeachment and the instruction given to the jury by the trial court was sufficient to cure any error. Therefore, we find no merit in this enumeration.
2. Smith next contends that he is entitled to a new trial because portions of the record are incomplete and he is unable to prepare an appeal. Georgia law clearly requires that in all felony cases there be prepared a transcript of evidence and proceedings. OCGA § 5-6-41 (Code Ann. § 6-805).
Although Smith makes a general assertion that he was prejudiced by the missing portions of transcript, he fails to show how he was harmed or to raise any issue which this Court is unable to adequately review...
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Drane v. State, S99P1003.
...and there is no evidence to support Drane's contention that other objections were not recorded, we find no error. See Smith v. State, 251 Ga. 229(2), 304 S.E.2d 716 (1983). After review of the record, we also conclude that even if the alleged objections to the edited audiotape were made, th......
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Johnson v. State
...requires that in all felony cases there be prepared a transcript of evidence and proceedings. OCGA § 5-6-41." Smith v. State, 251 Ga. 229, 230(2), 304 S.E.2d 716 (1983). But, the failure to transcribe limited portions of the trial proceedings does not constitute reversible error, if the def......
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Johnson v. State
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Gadson v. State, S18A0123
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