Truitt v. State
| Decision Date | 26 October 1983 |
| Docket Number | No. 66773,66773 |
| Citation | 309 S.E.2d 895,168 Ga.App. 616 |
| Parties | TRUITT v. The STATE. |
| Court | Georgia Court of Appeals |
Daniel J. Craig, Augusta, for appellant.
Sam B. Sibley, Jr., Dist. Atty., Charles R. Sheppard, Asst. Dist. Atty., for appellee.
Defendant was convicted of the offense of burglary. Following the denial of his motion for new trial he appeals. Held:
1. During the examination of a state's witness who had observed the defendant coming from the direction of the burglarized premises "carrying a large bag with ... stuff like clothing or something wrapped up, kind of stuffed in it," this witness testified as to what he reported to the investigating police. He described the defendant as being a young man he used to see in a certain area of town and as to how he looked, that he knew his last name but could not remember it "out right". He explained that one of the officers "recognized who I was talking about ... [that] they had been looking for him." Whereupon, objection was made that this testimony was hearsay and should be stricken. The court sustained the objection striking same and instructed the jury to disregard the testimony concerning what an officer may have said or not said to this witness as hearsay testimony and for the jury not to give it any consideration. Defense counsel then sought to have the jury excluded in order "to make a motion outside the presence of the jury," but the court required him to make the motion in the presence of the jury at which time he did so, contending that the hearsay "unfairly introduces the defendant's character into evidence" and since the jury would be prejudiced by the testimony against the defendant a mistrial should be granted. The court overruled the motion stating that the jury had been instructed to disregard the testimony and not to consider it in arriving at its decision. A renewed objection was made and again overruled. Errors enumerated herein contend the defendant had a good ground for mistrial. We disagree. First of all, it is not clear as to whom the police officer's comment referred as the defendant had not been identified by name to this police officer at that particular point in time, and the statement did not necessarily imply that the defendant had a criminal record, although one connotation might be that the police were looking for such a person as having committed an offense for which he might be arrested. See in this connection Bell v. State, 162 Ga.App. 527, 528, 292 S.E.2d 114; Woodard v. State, 234 Ga. 901, 902(2), 218 S.E.2d 629. But even if the remark be considered in some way to be harmful to the defendant the curative instruction by the trial court was adequate to correct any such harm and the trial court did not abuse its discretion. See Sabel v. State, 250 Ga. 640, 643-644(5), 300 S.E.2d 663; Stanley v. State, 250 Ga. 3(1), 295 S.E.2d 315; Jones v. State, 161 Ga.App. 610, 611(3), 288 S.E.2d 788. As the jurors are presumed to follow the instructions of the trial court in this state we find no error. See Tatum v. State, 249 Ga. 422, 423(1), 424-425, 291 S.E.2d 701.
2. During the cross-examination of the state's principal material witness defense counsel inquired about his criminal record, and objection was made and sustained. Defendant now contends the trial court erred in refusing to allow counsel to cross-examine the key witness about prior testimony given at a preliminary hearing which was inconsistent regarding prior convictions of crime involving moral turpitude. The transcript of the trial and proceedings discloses that the question asked of the witness was whether he had been charged with theft by taking on a certain date at which time the state objected and requested that a hearing be conducted out of the presence of the jury for a determination as to the possible impeachment of the witness by a showing of prior crimes and convictions. The court inquired of defense counsel if he was prepared to furnish the court with verified copies of convictions to which counsel replied in the affirmative. However, the convictions amounted to misdemeanors and same were disallowed since they did not involve felonies and other crimes...
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