Marlow v. State

385 S.E.2d 759, 192 Ga. App. 670, 1989 Ga. App. LEXIS 1093

• Court: Court of Appeals of Georgia
• Decided: September 5, 1989
• Docket: A89A0917
• Status: Published

Opinion

Beasley, Judge.

Defendant appeals his conviction of burglary, OCGA § 16-7-1, enumerating as error that: 1) the prosecutor expressed his personal belief in defendant’s guilt; 2) a State’s witness placed defendant’s character in evidence; 3) his custodial statement was admitted into evidence in violation of OCGA § 17-7-210; 4) certain admitted testimony was hearsay.

1. The prosecutor responded to an objection to cross-examination regarding a Bible defendant was holding closely during his testimony: “Your Honor, the relevance is that the entire defense is a charade and that this is a prop.” The jury could infer he personally disbelieved defendant’s testimony. After defendant’s motion for mistrial, the court took prompt corrective action both out of and in the jury’s presence, sternly admonishing the prosecutor. The prosecutor apologized both times. Afterwards, defendant neither renewed his motion for mistrial nor requested any other additional court action. What was raised was not preserved for appellate review. Burgess v. State, 149 Ga. App. 630, 631 (1) (255 SE2d 100) (1979); Jackson v. State, 248 Ga. 480, 483 (2) (284 SE2d 267) (1981).

2. Defendant asserts error in the failure to grant his motion for mistrial because his character was placed in evidence. The victim of the burglary, who allegedly placed defendant’s character into evidence, was repeating defendant’s statement to him “that he had a problem with cocaine.”

Defendant’s indicating he may have committed another separate offense is not a valid ground of objection to the recitation of his incriminatory statement. Bradford v. State, 166 Ga. App. 584, 585 (4) (305 SE2d 32) (1984); Mathis v. State, 172 Ga. App. 314 (1) (323 SE2d 227) (1984). See McGinnis v. State, 258 Ga. 673, 674 (2) (372 SE2d 804) (1988). Moreover, the court promptly gave curative instructions and defendant failed to renew his motion or object further. Tarver v. State, 186 Ga. App. 905, 906 (2) (368 SE2d 828) (1988).

3. Prior to trial and pursuant to OCGA § 17-7-210, defendant requested copies of any custodial statements he made which were in the State’s possession. He asserts error in the admission of the statement which arose out of his discussion with the victim. See Walraven v. State, 250 Ga. 401, 405 (2) (297 SE2d 278) (1982). The prosecutor explained that he became aware of it at 11:30 the morning of the trial. This was corroborated by the victim and the investigating officer. OCGA § 17-7-210 (e) excepts from the exclusionary provisions of the statute evidence discovered after the request is filed. Satterfield v. State, 256 Ga. 593, 600 (12) (351 SE2d 625) (1987). The court was authorized to conclude that the sanctions for failing to supply the statement were not applicable. Ledesma v. State, 251 Ga. 487, 489 (5) (306 SE2d 629) (1983); Eady v. State, 182 Ga. App. 293, 299 (8) (355 SE2d 778) (1987); Wesley v. State, 177 Ga. App. 877, 879 (3) (341 SE2d 507) (1986); Hampton v. State, 162 Ga. App. 672, 674 (3) (292 SE2d 544) (1982).

Decided September 5, 1989. Robert G. Rubin, for appellant. Lewis R. Slaton, District Attorney, William C. Akins, Nancy A. Grace, Joseph J. Drolet, Assistant District Attorneys, for appellee.

4. Defendant contends that certain testimony given by an officer regarding statements made to him in the course of his investigation were prejudicial hearsay. See Momon v. State, 249 Ga. 865 (294 SE2d 482) (1982). Substantially the same evidence was introduced another way. It was cumulative and harmless. Teague v. State, 252 Ga. 534, 537 (2) (314 SE2d 910) (1984); Spaulding v. State, 185 Ga. App. 812, 814 (3) (366 SE2d 174) (1988).

Judgment affirmed.

Carley, C. J., and McMurray, P. J., concur.