Thomas v. State, A96A2034
| Citation | 482 S.E.2d 472,224 Ga.App. 816 |
| Decision Date | 25 February 1997 |
| Docket Number | No. A96A2034,A96A2034 |
| Parties | , 97 FCDR 1050 THOMAS v. The STATE. |
| Court | Georgia Court of Appeals |
James W. Bradley, Jonesboro, for appellant.
Robert E. Keller, Dist. Atty., Clifford A. Sticher, Asst. Dist. Atty., for appellee.
Jonathan Lamont Thomas appeals his conviction for the armed robbery of Thomas Schrey and the aggravated assault of Vincent Pair, asserting that the trial court erred in admitting various evidence and in instructing the jury.
Viewing the evidence in the light most favorable to the verdict, Thomas approached Pair and Schrey, high school students, who were sitting in a parked car. He first pointed a gun at Pair, the driver, and demanded the car and Pair's jewelry. When Pair refused, Thomas then pointed his gun at Schrey, demanding his jewelry. Schrey complied, and Thomas left the scene on foot. The victims immediately alerted the police, and shortly thereafter Thomas was arrested in the vicinity where the crime occurred. Thomas, his clothing, his gun, and the stolen items found in Thomas' possession at the time of his arrest were positively identified by the victims. Thomas admitted having an encounter with the victims, but denied robbing or assaulting them. He testified that the victims and two other companions, Marcus Grimes and Trayton Head, were in the car at the time of the encounter. He further testified that he approached the car because he believed Head had stolen a pouch belonging to him that contained tapes, a Walkman, and a gun.
1. Thomas asserts that the trial court erroneously granted a motion in limine at the outset of trial precluding him from mentioning whether any of the State's witnesses had a juvenile history of delinquent activity. Thomas argues that this ruling improperly precluded him from impeaching Schrey's testimony that he was not a drug dealer. In support of his position, Thomas cites Williams v. State, 171 Ga.App. 927, 928, 321 S.E.2d 423 (1984), in which reference to the juvenile history of a witness was permitted, not to prove general bad character or prior convictions as provided by OCGA § 24-9-84, but to impeach the testimony of the witness that he had never been in trouble before. Williams notwithstanding, this enumeration is without merit.
First, because Thomas did not make this argument at trial, he is precluded from raising it on appeal. Woods v. State, 210 Ga.App. 172, 173(1), 435 S.E.2d 464 (1993) (); see also Strickland v. State, 257 Ga. 230, 232-233(4), 357 S.E.2d 85 (1987).
Second, pretermitting the applicability of Williams to this case, Thomas never made a proffer to the trial court of what evidence he would have submitted regarding Schrey's juvenile history. In fact, Thomas points to no part of the record indicating that Schrey even had a juvenile record. Numerous witnesses testified at trial, and the State's motion in limine sought to bar Thomas from referring to the juvenile history of any witnesses, without identifying any particular one. "Where the error alleged is that certain evidence has been wrongfully excluded, the rule is well settled that there must have been a proffer or offer of a definite sort [so] that both [the trial court and the appellate court] can know whether ... the evidence really exists." (Citations and punctuation omitted.) Dent v. State, 220 Ga.App. 147, 149(3), 469 S.E.2d 311 (1996). In the absence of such a proffer, "the assignment of error is so incomplete as to preclude its consideration by this court." (Citations and punctuation omitted.) Id.
2. Thomas asserts that the trial court improperly considered evidence of a former conviction in the sentencing phase because the State had not timely served the defendant with notice of its intent to use that conviction as evidence of aggravation under OCGA § 17-10-2(a). Thomas was given notice of the State's intent after voir dire but before jury selection.
Thomas failed to object to the introduction of the conviction during the pre-sentencing phase, thereby waiving the issue on appeal. Armstrong v. State, 264 Ga. 237, 239(3), 442 S.E.2d 759 (1994). Moreover, Thomas' argument was rejected in a similar case, Payne v. State, 219 Ga.App. 318, 464 S.E.2d 884 (1995), where the defendant was given notice while the jury was being selected. (Citation omitted.) Id. at 319(4), 464 S.E.2d 884. Accordingly, Thomas received timely notice pursuant to OCGA § 17-10-2(a), and this enumeration is without merit.
3. Thomas asserts that the trial court erred in admitting, over his objection, two pawn shop receipts signed by Thomas when he purchased a gun. The State argued that Thomas used the gun in question during the robbery and assault. On appeal, Thomas asserts that these documents should have been provided pursuant to OCGA § 17-16-4. This assertion is without merit because the trial in this matter took place in November 1993, before OCGA § 17-16-4 was enacted. Ga. L.1994, p. 1895, § 4.
4. Thomas contends that the trial court erred in permitting his character to be placed into evidence. Specifically, Thomas complains of (1) testimony from the victims that Thomas smelled of alcohol at the time of their encounter; (2) testimony from the investigating officer that the victims described Thomas as appearing intoxicated and smelling of alcohol at the time of their encounter; and (3) Thomas' own testimony that he was carrying a concealed weapon and that he lacked a license for that weapon. The record reveals that Thomas failed to object to any of this evidence on the grounds that it impermissibly placed his character into evidence. 1 Accordingly, this issue has not been preserved for appellate review. Earnest v. State, 262 Ga. 494, 495(1), 422 S.E.2d 188 (1992).
5. Thomas contends that the trial court erred in admitting a picture of him taken shortly after his arrest. At trial, the photograph was admitted over Thomas' objection that it was unduly prejudicial. Thomas made no argument that the picture had not been accurately authenticated, the argument he now asserts on appeal. Because "we do not consider grounds for...
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