Chisholm v. State

500 S.E.2d 14, 231 Ga. App. 835
CourtCourt of Appeals of Georgia
DecidedSeptember 8, 1998
DocketA97A2565
StatusPublished
Cited by11 cases

This text of 500 S.E.2d 14 (Chisholm 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
Chisholm v. State, 500 S.E.2d 14, 231 Ga. App. 835 (Ga. Ct. App. 1998).

Opinions

Johnson, Judge.

A jury found Theopholus Chisholm guilty of robbery, aggravated assault, felony obstruction of a law enforcement officer, attempting to elude a law enforcement officer, and driving under the influence of drugs. He appeals from the judgment entered on the jury’s verdict.

Viewing the evidence in the light most favorable to the jury’s verdict, the events which occurred on November 7, 1995, with regard to this case are as follows: Chisholm drove a burgundy-colored 1992 Nissan Maxima automobile bearing a South Carolina license tag to the Dixie Quick Shop, a convenience store in Lincolnton, Georgia. He purchased a pastry and a soda and left the store. Chisholm reentered the store shortly thereafter, placed a package of cigarettes on the counter and handed the clerk two $1 bills. When the clerk opened the register to make change, Chisholm jumped on the counter, turned the register toward him and began taking money from the drawer. The clerk screamed for her co-worker and began hitting Chisholm with a broom. The co-worker ran toward the register and saw the clerk hitting Chisholm with the broom. The clerk followed Chisholm as he ran from the store and watched him enter and drive away in a burgundy car with a South Carolina tag. The co-worker called the police. Both the clerk and the co-worker identified Chisholm as the robber at trial.

A Lincolnton police officer observed a burgundy car matching the description he had received over his radio. The officer activated his blue lights and siren and tried to initiate a stop. Although Chisholm [836]*836did not immediately respond, he finally stopped his car. The officer told him to get out of the car with his hands raised and to lie on the ground. Chisholm got on the ground, but then got up and began walking toward the officer, dropping his hands to his sides as he walked. Chisholm did not respond to the officer’s command to put his hands up. The officer then warned Chisholm to stop or he would shoot. Chisholm turned around, walked back to his car, got in and sat in the driver’s seat. When another officer arrived and got out of his car, Chisholm put his car in gear and accelerated toward the officer. As the officer jumped to get out of the way, the car struck one of his legs and pushed him backwards. The officer recovered his balance and dove toward Chisholm through the driver’s side window, hitting him with his gun. The officer let go of the moving car as Chisholm drove off. The officer fired a shot at the tire, but missed.

The officer returned to his patrol car and, with blue lights and siren activated, gave chase. Chisholm drove at speeds which the officer estimated at 90 to 100 mph, at times exceeding 100 mph. The officer saw a large object thrown from Chisholm’s car. The object, later recovered, was a green jacket identified by the store clerk as being identical to the jacket worn by the perpetrator of the robbery. Eventually Chisholm lost control of his car on a sharp curve. The car went down an embankment and struck a tree. The police found Chisholm standing next to his car. He was placed in custody. Chisholm was then taken to a local hospital for an examination. After being apprised of his informed consent rights, he agreed to have blood drawn. The blood sample tested positive for cocaine. The following afternoon, after being given his Miranda rights, Chisholm gave a statement to police in which he admitted he was under the influence of crack cocaine the night of the robbery. He told police that, as a result of the crack cocaine, he saw things flying out of cars and trucks, did not remember any details of the robbery, and could not say whether he committed the robbery.

1. The trial court did not err in allowing the following evidence as a similar transaction: The clerk of a convenience store in Greenwood, South Carolina, testified that Chisholm came into the store one night during the winter of 1994. He purchased a soft drink, after which he left the store and milled around outside waiting for other .customers to leave. As the last customer left the store, Chisholm reentered and asked for change. When the clerk opened the cash register, Chisholm reached over the counter and began grabbing money out of the drawer. The clerk screamed for her co-worker, and Chisholm ran from the store. The clerk testified that, despite the fact that Chisholm was wearing a cap and sunglasses at the time of the robbery, she saw his face and identified him at trial. This evidence satisfies the requirements for admissibility set forth in Williams v. [837]*837State, 261 Ga. 640, 642 (409 SE2d 649) (1991). See Hefner v. State, 224 Ga. App. 612, 613-614 (2) (481 SE2d 599) (1997).

2. Chisholm requested a limiting instruction prior to the introduction of the similar transaction evidence, and he took exception to the limiting charge as given. He asserts that the trial court’s failure to give an adequate limiting instruction was error, and we agree. “[I]n cases where the trial court has conducted the requisite preliminary hearing and thereafter determined that similar transaction evidence will be admitted at trial for a specified limited purpose, it is incumbent upon the trial court to instruct the jury, preferably at the time the evidence is introduced and in its general charge to the jury, regarding the fact that the accused is not on trial for any prior acts and that such acts are only to be considered for that specified limited purpose and not for any other purpose. Additionally, immediately after so instructing the jury, it is incumbent upon the trial court to further instruct the jury that before it can consider any prior act for the limited purpose specified, it should first determine whether the accused actually committed the prior act, and if so, whether the act was similar enough to the crime with which the accused is now charged so that proof of the prior act in light of the limited purpose for which it was introduced tends to prove the latter crime. [Cit.]” Belt v. State, 227 Ga. App. 425, 428 (489 SE2d 157) (1997).

Prior to the introduction of the similar transaction evidence in this case, the trial judge asked the prosecutor to state her purpose in seeking to introduce the evidence. She replied that the testimony was being offered to show motive, identity, course of conduct, common scheme, and bent of mind of the defendant. The court then simply stated, “I would now instruct the jury that being your purpose that it would only be admissible for the purpose stated by counsel.” The trial court’s instruction did not inform the jury that Chisholm was not on trial for the previous incident nor explain that before the jury could consider any prior act it should first determine whether Chisholm actually committed the prior robbery, and if so, whether the act was similar enough to this crime so that proof of the prior act, in light of the limited purpose for which it was introduced, tended to prove the latter crime. In this case, Chisholm requested a limiting instruction and properly preserved his objection to the abbreviated limiting instruction for review. Thus, the controversial aspect of Belt, supra, is absent.

Belt requires trial courts, even in the absence of a specific request,1 to fully instruct juries, in cases where similar transaction [838]*838evidence is involved, regarding the limited purposes for which such evidence may be considered and with regard to the factual matters that must be resolved in determining the import, if any, to be placed on the evidence. Id. While the holding in Belt

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Chisholm v. State
500 S.E.2d 14 (Court of Appeals of Georgia, 1998)

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Bluebook (online)
500 S.E.2d 14, 231 Ga. App. 835, Counsel Stack Legal Research, https://law.counselstack.com/opinion/chisholm-v-state-gactapp-1998.