Bogan v. State

426 S.E.2d 392, 206 Ga. App. 696, 92 Fulton County D. Rep. 3139, 1992 Ga. App. LEXIS 1750
CourtCourt of Appeals of Georgia
DecidedDecember 1, 1992
DocketA92A0869
StatusPublished
Cited by14 cases

This text of 426 S.E.2d 392 (Bogan v. State) is published on Counsel Stack Legal Research, covering Court of Appeals of Georgia primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Bogan v. State, 426 S.E.2d 392, 206 Ga. App. 696, 92 Fulton County D. Rep. 3139, 1992 Ga. App. LEXIS 1750 (Ga. Ct. App. 1992).

Opinion

Birdsong, Presiding Judge.

Clarence Bogan appeals his conviction of armed robbery, kidnapping, possession of a firearm during an armed robbery, and the sentence. He enumerates six errors. Held'.

1. Appellant asserts the trial court erred in allowing the police officer to testify as to appellant’s spontaneous and voluntary statements that he had ingested cocaine.

The incident occurred at approximately 3:00 p.m. The victim identified appellant as having first come into her store to purchase cigarettes, then returning later to rob her. A subsequent informal accounting revealed approximately $100 had been taken from the service station. At the time of the robbery, appellant’s eyes were glassy, his speech slurred, and he acted strangely. Appellant was acting totally different than he had earlier when he bought the cigarettes. About 8:00 p.m., police went to appellant’s home and arrested him; at that time, appellant made a voluntary, spontaneous statement that he *697 had ingested cocaine just before the police arrived to arrest him. Appellant was taken to the police station and advised of his Miranda rights. When asked if he wished to waive those rights, appellant made another voluntary, spontaneous statement that he was unable to talk to the police because he had ingested a nickel bag of cocaine “approximately five hours before [the police officer’s] arrival to him.”

The first voluntary, spontaneous statement was admissible to show the circumstances surrounding appellant’s arrest. All circumstances surrounding an arrest are admissible for whatever value the jury desires to place on them. Lanham v. State, 184 Ga. App. 554 (2) (362 SE2d 131); compare State v. Luke, 232 Ga. 815 (209 SE2d 165). Where evidence is relevant for the purpose of showing the circumstances of the arrest, it will not be excluded because it incidentally shows the commission of another crime. Sapp v. State, 184 Ga. App. 527, 528 (2) (362 SE2d 406). Moreover, the statement had independent relevance to establish that appellant had ingested cocaine prior to the time of his arrest. The significance of this is increased by the second voluntary, spontaneous statement made by appellant at approximately 8:00 p.m. clarifying that he had used cocaine about five hours earlier; this would have been about 3:00 p.m., near the time of the robbery. The fact appellant ingested cocaine around the time of the robbery clearly was corroborative of the victim’s testimony regarding the strange change in appellant’s conduct between the time he bought the cigarettes and subsequently robbed the store. As such, it was admissible as to the issue of identification. Likewise, appellant’s first statement was relevant as to the issue of identification. “ ‘Where evidence may incidentally put character in issue or be prejudicial it may be admitted if otherwise relevant.’ ” Coney v. State, 198 Ga. App. 272, 274 (3) (401 SE2d 304). Appellant’s contentions as to these statements are without merit.

2. Appellant asserts the trial court erred in not allowing appellant’s probation officer to impeach the victim with opinion testimony and references to specific incidents in support of the probation officer’s conclusions, inter alia, that the victim’s character “was generally bad” and she would not believe her under oath. The probation officer testified, outside the presence of the jury, that she knew, at least as among the probation community, that the victim’s character is bad, but she did not know what the victim’s reputation for general character was among the victim’s neighborhood and social peer groups. Specifically, the probation officer testified that her opinion as to the victim’s reputation was based on her personal dealings with the victim as her probation officer and also with comments made through law enforcement agents with whom she has been in contact. The record also reflects that the witness had not interviewed anyone from the victim’s work place, and thus was not familiar with her reputation *698 there. Thus, we find Gravitt v. State, 220 Ga. 781, 786 (8) (141 SE2d 893) to be factually distinguishable.

Relying on OCGA § 24-9-84; Gresham v. State, 169 Ga. App. 525, 527 (314 SE2d 111) (specific acts not admissible to establish general character; opinion as to a party’s character based solely upon personal observation is not allowed); and Ailstock v. State, 159 Ga. App. 482, 483-484 (283 SE2d 698) (specific acts not admissible to show general bad character), the State argues that the trial court did not err in not allowing the probation officer to testify, as she did not have knowledge of the victim’s general character reputation within her community.

The place in which to ascertain a person’s true reputation is the place where people, generally, have had the best opportunity of forming a correct estimate of the person’s character. It is obvious that this may not, in each and every instance, be the neighborhood where a man’s home is situated. Martinez v. State, 189 Ga. App. 69, 71 (1) (375 SE2d 123) (thus, in an exceptional case, general reputation in a penal institution was admissible). While, under certain circumstances, a person might well have a general character reputation within a small specialized community, such as the probation community or the law enforcement community, the record before us fails to establish such fact in this case. Rather, reasonable inferences can be drawn from the testimony of the probation officer that she actually was giving her personal opinion as to the victim’s reputation for general character based upon personal observation coupled with unspecified reports received from unidentified law enforcement officials rendered under undisclosed circumstances. The admissibility of evidence rests largely within the sound discretion of the trial court. See generally Roney v. State, 192 Ga. App. 760, 763 (2) (386 SE2d 412). The record reveals no such abuse by the trial court.

3. Appellant asserts the trial court erred in limiting the cross-examination of the victim and the person who could provide testimony linking appellant to the crimes charged.

On cross-examination, appellant was allowed to introduce evidence of the victim’s prior conviction, pursuant to a guilty plea, of two counts of bad checks. Thereafter, the State objected after appellant began questioning the victim as to her probation status. Appellant explained its defense strategy and the purpose of its questions as follows: “We think that this would go to a possible motive for [the victim] herself actually taking the cash involved. Our next question was going to be to ask if she was under some requirement to pay restitution and a probation fee and if, in fact, on several occasions bench warrants have been issued for this failure of her to pay these amounts.” (Emphasis supplied.) Appellant also asserted the additional ground of bias for its exploration of the terms of probation *699

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Bluebook (online)
426 S.E.2d 392, 206 Ga. App. 696, 92 Fulton County D. Rep. 3139, 1992 Ga. App. LEXIS 1750, Counsel Stack Legal Research, https://law.counselstack.com/opinion/bogan-v-state-gactapp-1992.