Hunter v. State

413 S.E.2d 526, 202 Ga. App. 195, 1991 Ga. App. LEXIS 1730
Court of Appeals of Georgia·Decided December 5, 1991·No. A91A0899·Published·Cited by 93 cases

Opinions

Carley, Presiding Judge.

Appellant was tried before a jury and found guilty of selling cocaine in violation of the Controlled Substances Act. He appeals from the judgment of conviction and sentence entered by the trial court on the jury’s guilty verdict.

1. Appellant enumerates the general grounds.

Appellant was positively identified by the officer to whom the sale had been made. Appellant did not seek to suppress the officer’s identification testimony. Moreover, the record clearly discloses that there was no viable basis upon which suppression of the officer’s identification testimony could have been sought. It was only after the of[196] ficer had already been given the name of the individual from whom he had purchased the cocaine that he viewed a photograph of appellant to confirm that appellant was in fact that individual. Thus, the photograph did not result in the officer’s identification of appellant as the suspect, but merely corroborated that the suspect had been properly identified to the officer as appellant. “This was not an impermissibly suggestive procedure such as a photo ‘line-up’ containing one picture, but was more a matter of detection.” Smith v. State, 192 Ga. App. 144, 145 (2) (384 SE2d 677) (1989). See also Curtis v. State, 183 Ga. App. 6 (1) (357 SE2d 849) (1987). The evidence adduced at trial, when construed most favorably for the State, was sufficient to authorize a rational trior , of fact to find proof of appellant’s guilt beyond a reasonable doubt. Jackson v. Virginia, 443 U. S. 307 (99 SC 2781, 61 LE2d 560) (1979).

2. Appellant made a motion for a “non-suggestive” lineup, urging in support thereof that his identification by the officer had been tainted by an impermissibly suggestive procedure. The denial of this motion is enumerated as error.

When it is alleged that identification testimony has been tainted by a purported impermissibly suggestive pre-trial procedure, the defendant is clearly entitled to file a motion to suppress that testimony. No reason is suggested as to why this remedy is not otherwise sufficient to protect the rights of an accused. In any event, there was no impermissibly suggestive pre-trial identification procedure employed in the instant case, for the reasons given in Division 1. Since the circumstance upon which appellant had predicated his motion did not exist, it was not error to deny that motion.

3. Appellant enumerates as error the admission into evidence of his prior drug conviction.

The State has the burden of adducing sufficient evidence of an accused’s guilt beyond a reasonable doubt and the trial court has the responsibility of determining whether the evidence upon which the State relies is admissible for the jury’s consideration. The State’s burden is implacable, but the trial court’s responsibility is not. The accused has a concomitant duty to object to the admission of any evidence upon which he contends the State erroneously relies in meeting its burden. “It is well settled that while evidence may be subject to objection yet if no objection is made in the trial court, or if the only objection made is not good, no reversible error is committed by the trial court in allowing the evidence to be submitted. [Cits.]” Salem v. State, 228 Ga. 186, 187-188 (3) (184 SE2d 650) (1971). The instant enumeration does not assert the general grounds and urge that the State failed to meet its burden of proof as to appellant’s guilt. The instant enumeration asserts error only as to an evidentiary ruling and urges that the trial court erred in allowing the jury to consider certain [197] evidence. Accordingly, our consideration is necessarily limited to such specific objections to the admission of that evidence as were raised below. “ ‘ “In order to raise on appeal contentions concerning admissibility of evidence ‘the specific ground of objection must be made at the time the evidence is offered, and a failure to do so will be considered as a waiver. All evidence is admitted as a matter of course unless a valid ground of objection is interposed.’ [Cits.]” ’ [Cit.]” (Emphasis supplied.) Doughty v. State, 175 Ga. App. 317, 321 (5) (333 SE2d 402) (1985).

In Stephens v. State, 261 Ga. 467, 469 (6) (405 SE2d 483) (1991), the Supreme Court held that “the [S]tate’s establishment!, in a pretrial hearing conducted pursuant to Uniform Superior Court Rule 31.3 (b),] of a prima facie case of similarity [of prior crimes] does not satisfy its obligation to present proof on that issue at trial." (Emphasis supplied.) See also Williams v. State, 261 Ga. 640 (409 SE2d 649) (1991). A review of the record in the instant case clearly shows, however, that the evidentiary issue discussed in Stephens and Williams was not preserved for appellate review. Accordingly, the holding in Stephens and Williams is clearly not a viable predicate for reversing appellant’s conviction.

What the instant record shows is the following: At the pre-trial hearing to determine the admissibility of appellant’s prior conviction, appellant never objected on the ground that his prior conviction was not shown by the State to be sufficiently “similar” to the crime that he was charged with having committed in the instant case. Instead, appellant urged only that his prior conviction antedated the instant crime to such an extent that it was too “remote” to warrant its admissibility and that any limited relevancy that his prior conviction might have on the issue of identity would be outweighed by its prejudicial impact upon the jury. Over these objections, the trial court ruled that appellant’s prior conviction would be admissible at trial, but suggested that appellant might renew his objection when his prior conviction was offered for admission during the trial.

At trial, the State produced the testimony of a police officer and then tendered a certified copy of appellant’s prior indictment, plea of guilty and sentence. Again, appellant never objected on the ground that the State’s evidence was otherwise insufficient to show that his prior conviction had been for a crime sufficiently similar to the crime that he was charged with having committed in the instant case. Instead, appellant, apparently accepting the suggestion made by the trial court at the pre-trial hearing, urged only that he was “renewing] [his] objection.” (Emphasis supplied.) Thus, the only objections that appellant ever raised at trial were that his prior conviction was too “remote” and that the prejudicial impact of his prior conviction outweighed its limited relevancy on the issue of identity.

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Hunter v. State, 413 S.E.2d 526, 202 Ga. App. 195, 1991 Ga. App. LEXIS 1730 (Ga. Ct. App. 1991).

413 S.E.2d 526 (Hunter v. State) — published by Counsel Stack Legal Research, free access to 12M+ legal documents.

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