Seabrooks v. State

308 S.E.2d 160, 251 Ga. 564, 1983 Ga. LEXIS 916
CourtSupreme Court of Georgia
DecidedOctober 25, 1983
Docket39538
StatusPublished
Cited by33 cases

This text of 308 S.E.2d 160 (Seabrooks v. State) is published on Counsel Stack Legal Research, covering Supreme Court of Georgia primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Seabrooks v. State, 308 S.E.2d 160, 251 Ga. 564, 1983 Ga. LEXIS 916 (Ga. 1983).

Opinion

Bell, Justice.

Appellant was convicted of selling cocaine, and his conviction was affirmed by the Court of Appeals in Seabrooks v. State, 164 Ga. App. 747 (2) (297 SE2d 745) (1982). We granted a writ of certiorari to review the second division of that opinion, in particular the court’s interpretation and application therein of the legal standards for ascertaining whether evidence of independent crimes is admissible and whether erroneously admitted evidence is harmlessly cumulative. We affirm, but for different reasons.

Seabrooks was charged with selling about a gram of cocaine in July 1981 to an undercover agent named Harold “Fat Albert” Smith. Seabrooks admitted at trial that he sold the cocaine to Fat Albert, but he also testified that he did not usually mess or fool with cocaine, and that Fat Albert had entrapped him. During cross-examination Seabrooks was asked whether he had ever sold Quaaludes or offered to sell cocaine to a man named Buddy Tremon, and Seabrooks denied having done so.

After Seabrooks stepped down, the state called Detective James Josey to the stand and asked him whether he had executed a search warrant at appellant’s residence. Defense counsel interrupted and objected on the ground that the state was “getting into some kind of *565 character evidence here. I don’t believe that character is part of the issue here.”

The state responded that it anticipated Josey’s testimony would show that Seabrooks had a predilection for trafficking in drugs. The state further announced that it intended to introduce “evidence that he has transacted in drug dealings before and he’s already denied it on the stand so I think he’s opened the door.” This evidence, the prosecution said, would show that Fat Albert knew of appellant’s predisposition when he made the buy.

Defense counsel objected again, on the ground that the state could not introduce such evidence unless it proved that Seabrooks had been convicted of the independent crimes. 1 The court responded by stating, “Well, of course he hasn’t asked him anything yet. I’m going to overrule the objection at this time. You may make any other objections you see fit to make. I overrule the objection. Go ahead sir.”

The state proceeded to question Josey, and elicited testimony that in October 1980 Josey had executed a search warrant at appellant’s residence in an effort to find stolen property. Josey stated that several items were confiscated, but he was not allowed by the prosecution to describe them, and the jury was never apprised of their nature. He further testified that during the search law enforcement officials discovered 20 three-foot tall marijuana plants growing in appellant’s backyard, as well as a pound of marijuana and numerous pills and capsules in a pickup truck. 2 Josey finished his testimony by stating that he did not know whether charges 3 against Seabrooks were still pending at the time of trial. Defense counsel did not object to any of this subsequent testimony.

The state then called Fat Albert, who testified that he had thought he could buy cocaine from Seabrooks because Buddy Tremon told him that Seabrooks had sold Tremon some Quaaludes. Defense counsel did not object to Fat Albert’s testimony.

In his appeal Seabrooks contended that both Josey’s testimony about the discovery of marijuana and his testimony that the search was conducted in an effort to locate stolen property had im-permissibly placed his character in issue. Although the Court of Appeals apparently overlooked his contention concerning the stolen *566 property, the court did consider Josey’s discussion of the discovery of marijuana, and agreed that this testimony had been erroneously admitted.

The general rule is that, in the trial of a crime, evidence of other criminal acts by the defendant is inadmissible as it tends to place the defendant’s character into evidence. State v. Johnson, 246 Ga. 654 (1) (272 SE2d 321) (1980). In implicit recognition of this rule, the Court of Appeals examined the circumstances of this case to see whether Josey’s testimony fit within the rule’s recognized exceptions, and concluded it did not. The court first discounted the possibility that Seabrooks had placed his character in issue through his testimony, and found that Josey’s testimony therefore was not admissible as rebuttal evidence. The court next found that Josey’s testimony was not admissible as impeachment evidence to disprove facts testified to by Seabrooks. Finally, the court found, without discussion, that appellant’s possession of marijuana was not “sufficiently similar or connected to the facts of the crime charged so as to be admissible to prove motive, plan, scheme, etc.” Seabrooks, supra at 749.

However, although it held that the trial court erred in admitting the evidence, the Court of Appeals also held that the error was harmless because it was highly probable that the error did not contribute to the verdict, Johnson v. State, 238 Ga. 59 (230 SE2d 869) (1976), since Josey’s testimony establishing that Seabrooks had possessed a large quantity of marijuana was substantially to the same effect as, and thus cumulative of, Fat Albert’s testimony.

Seabrooks applied for certiorari, which we granted. As discussed in the remainder of our opinion, we think the Court of Appeals overlooked a fundamental defect in appellant’s argument, which is that he did not preserve his objection at trial. Because we hold that Seabrooks waived his right to object, we affirm the court’s result in its second division, while pretermitting review of most of its analysis and findings therein. However, we will undertake to briefly comment upon the court’s treatment of the independent crimes and cumu-lativeness issues.

1). The primary issue in this case is, simply stated, whether the trial court erred in admitting Josey’s testimony, and the first question in reviewing such an enumeration of error is whether the appellant objected to admission of the evidence in a legally sufficient manner. In the instant case the Court of Appeals found that Seabrooks objected to the admissibility of Josey’s testimony as impermissibly placing his character in issue, Sea-brooks, supra at 748, but we do not believe that that finding is an accurate assessment of the colloquy at trial. Specifically, we think that the objection was untimely, and that it lacked *567 specificity.

The failure to make a timely and specific objection is treated as a waiver. Herrin v. State, 230 Ga. 476 (1) (197 SE2d 734) (1973). Here, appellant’s objection came before any of Josey’s testimony, and at that point neither the substance of his expected testimony nor the purpose for which it was offered was apparent from the state’s question or the trial proceedings.

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Bluebook (online)
308 S.E.2d 160, 251 Ga. 564, 1983 Ga. LEXIS 916, Counsel Stack Legal Research, https://law.counselstack.com/opinion/seabrooks-v-state-ga-1983.