Hill v. State

336 S.E.2d 276, 176 Ga. App. 509, 1985 Ga. App. LEXIS 2316

Opinions

Banke, Chief Judge.

The defendant was convicted of possession of marijuana with intent to distribute. On appeal, he contends that the trial court erred in admitting into evidence certain testimony which placed his character in issue.

The defendant had been under surveillance as a suspected drug dealer for some time prior to his arrest. On July 26, 1984, he was observed walking in a field with one Lorenzo McCaskill. The two men stopped at a bush, and the defendant pointed to the ground. McCaskill then reached down and retrieved a brown paper bag. McCaskill was detained soon thereafter, and the bag was seized. It proved to contain 30 smaller packets of marijuana. Held:

1. The trial court did not err in admitting evidence that on November 26, 1984, the defendant made another sale of marijuana to another purchaser, in packaging identical to that involved in the sale to McCaskill six months earlier. “If the defendant is proven to be the perpetrator of another drug crime and the facts of that crime are sufficiently similar or connected to the facts of the crime charged, the separate crime will be admissible to prove identity, motive, plan, scheme, bent of mind, or course of conduct.” State v. Johnson, 246 Ga. 654, 655 (272 SE2d 321) (1980).

2. The court did not err in allowing McCaskill to testify that he had been selling marijuana for the defendant at some point earlier in the year but had stopped, said testimony being relevant to the issue of the defendant’s intention to distribute the marijuana which was the subject of the indictment for which he was on trial. “Evidence that is otherwise relevant or material to the issues in a criminal case does not become inadmissible simply because it concerns separate offenses, or because it incidentally puts a criminal defendant’s character or reputation in evidence. Spencer v. State, 236 Ga. 697, 700 (4) (b) (224 SE2d 910) (1976).” Drake v. State, 245 Ga. 798, 802 (267 SE2d 237) (1980).

3. The trial court did err, however, in allowing the state’s attorney to cross-examine the defendant as to whether other members of his family had “been in trouble for marijuana.” This evidence was not shown to be relevant to any issue in the case and must consequently be construed as an improper attempt to impugn the defendant’s character and establish his guilt by association. See generally OCGA §§ 24-2-2; 24-9-20; Western & Atlantic R. Co. v. Vaughan, 113 Ga. 354 (1) (38 SE 829) (1901). Also, the fact that defense counsel was required to argue his motion for mistrial on the issue in the presence of the jury would tend to give additional emphasis to the improper questioning.

Judgment reversed.

Birdsong, P. J., Carley, Sognier, Pope, and Benham, JJ., concur. Deen, P. J., McMurray, P. J., and Beasley, J., dissent.