Stephens v. State

405 S.E.2d 483, 261 Ga. 467, 1991 Ga. LEXIS 332
Supreme Court of Georgia·Decided July 3, 1991·No. S91A0284·Published·Cited by 157 cases

Opinions

Hunt, Justice.

Stephens was convicted of the sale of cocaine and was sentenced to life in prison under OCGA § 16-13-30 (d), which mandates a life sentence for a second conviction of selling cocaine.1 On appeal Stephens contends the trial court erred by restricting defense counsel’s voir dire; the court erred by closing the courtroom during the testimony of an informant; the court erred by allowing the state to introduce evidence of Stephens’ prior conviction for the sale of cocaine; the court erred by failing to grant a mistrial when the informant referred to Stephens as a junkie; the court erred in allowing the jury, after it had started its deliberations, to rehear a tape recording without cautionary instructions; and § 16-13-30 (d) is unconstitutional in that the life sentence it mandates constitutes cruel and unusual punishment. For the reasons set forth in Division 6, we reverse.

1. The evidence showed that Stephens sold cocaine worth about $50 to an informant, Tim Allison, who was working with Officer Mark McGinnis, a narcotics agent. We conclude the evidence was sufficient for a rational trier of fact to have found Stephens guilty beyond a reasonable doubt. Jackson v. Virginia, 443 U. S. 307 (99 SC 2781, 61 LE2d 560) (1979).

2. In his first enumeration of error, Stephens contends the trial court erred by restricting his voir dire. We find no error. Baxter v. State, 254 Ga. 538, 543 (7) (331 SE2d 561) (1985).

3. Stephens enumerates as error the trial court’s refusal to grant a mistrial following an allegedly prejudicial statement made by Allison. We find no abuse of discretion. Lewis v. State, 255 Ga. 681, 683 (2b) (341 SE2d 434) (1986).

[468]*4684. Stephens contends the trial court erred by allowing the jury to rehear a tape recording of a conversation between Stephens, Allison, and McGinnis without giving cautionary instructions that the jury should not place any more or less emphasis on the tape than on other evidence presented at trial. We find no error. First, Stephens did not request a cautionary instruction. Moreover, whether to permit the replaying of a portion of testimony is within the discretion of the trial court, and the court is not required to give a cautionary instruction. See Lee v. State, 259 Ga. 230, 232 (4) (378 SE2d 855) (1989); Pontoon v. State, 177 Ga. App. 868 (1) (341 SE2d 505) (1986). We find no abuse of discretion in the instant case.

5. Stephens also contends § 16-13-30 (d) is unconstitutional in that the mandatory life sentence constitutes cruel and unusual punishment. Stephens acknowledges we recently have held that the life sentence mandated by § 16-13-30 (d) does not constitute cruel and unusual punishment under the Fourteenth and Eighth Amendments to the United States Constitution, Grant v. State, 258 Ga. 299, 300 (2) (368 SE2d 737) (1988). However, he argues that, under Art. I, Sec. I, Par. XVII of the 1983 Georgia Constitution, § 16-13-30 (d) constitutes cruel and unusual punishment because it does not allow the trial court to consider a rehabilitative sentence.

We disagree with Stephens’ argument. The reasons for holding that § 16-13-30 (d) does not constitute cruel and unusual punishment under the Eighth and Fourteenth Amendments to the United States Constitution, see Grant, supra, 258 Ga. at 300, apply with equal force to Stephens’ attack on the constitutionality of § 16-13-30 under the Georgia Constitution. Accordingly, we decline to hold the mandatory life sentence of § 16-13-30 (d) constitutes cruel and unusual punishment under Art. I, Sec. I, Par. XVII of the 1983 Georgia Constitution.

6. Stephens contends the trial court erred by permitting the state to introduce a certified copy of his prior conviction for the sale of cocaine. The state did not offer any evidence of the commission of the sale, but instead relied solely on the certified copy of the prior conviction.

We agree with Stephens that the introduction of a certified copy of his prior conviction of the sale of cocaine was error. At a pre-trial hearing pursuant to Uniform Superior Court Rule 31.3 (B) on the admissibility of evidence of the prior crime, the prosecutor demonstrated the similarity between the prior conviction and the crime for which the defendant was being tried by “stating in his place” the relevant facts of the prior conviction. The trial court’s finding of sufficient similarity based on the prosecutor’s statement of what he ex[469] pected to show at trial was proper.2 Hall v. State, 181 Ga. App. 92, 93 (1b) (351 SE2d 236) (1986). However, the state’s establishment of a prima facie case of similarity does not satisfy its obligation to present proof on that issue at trial. Here no such proof was made. Only the conviction itself was offered.

It is universally recognized . . . that “[t]he general rule is, that, on a prosecution for a particular crime, evidence which in any manner shows or tends to show that the accused has committed another crime wholly independent from that for which he is on trial, even though it be a crime of the same sort, is irrelevant and inadmissible.” [Cits.]

Bacon v. State, 209 Ga. 261, 262 (71 SE2d 615) (1952). However, for limited purposes such evidence may be admitted if two conditions are met:

“First, there must be evidence that the defendant was in fact the perpetrator of the independent crime. Second, there must be sufficient similarity or connection between the independent crime and the offense charged, that proof of the former tends to prove the latter. [Cit.]”

State v. Johnson, 246 Ga. 654, 655 (1) (272 SE2d 321) (1980). Therefore, in this case, there must be some evidence to establish between the independent crime and the crime on trial such similarity to and logical connection with each other so that proof of the independent crime tends to . establish, by evidence of identity, bent of mind, or intent, the commission of the crime for which Stephens is on trial. Faison v. State, 199 Ga. App. 447 (405 SE2d 277) (1991); State v. Johnson, supra at 657 (Justice Hill, dissenting); Bacon v. State, supra.3

Since we cannot say the erroneous admission of the prior conviction was harmless, Stephens’ conviction in this case must be reversed.

7. We agree with Stephens’ contention that the trial court erred by closing the trial to the general public, because the court failed to follow the specific requirements for closure set forth in R. W. Page Corp. v. Lumpkin, 249 Ga. 576 (292 SE2d 815) (1982). In Lumpkin [470] we held:

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Stephens v. State, 405 S.E.2d 483, 261 Ga. 467, 1991 Ga. LEXIS 332 (Ga. 1991).

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