Manner v

State, 302 Ga. 877, 808 S.E.2d 681, 2017 Ga. LEXIS 959 (2017). Erroneous admission of prior conviction harmless. — While the appellate court was unable to determine whether the trial court engaged in any meaningful analysis of the relevant factors or balanced the probative value of the admission of the defendant’s prior burglary conviction against the prejudicial effect to the defendant, any error was harmless because there was no reasonable probability that the results of the trial would have differed if the evidence of the defendant’s burglary conviction had been excluded given that the defendant’s DNA was obtained from blood on a screwdriver inside the victim’s home and the broken window in the victim’s bedroom. Crosby v. State, 319 Ga. App. 459, 735 S.E.2d 588, 2012 Ga. App. LEXIS 1065 (2012) (decided under former O.C.G.A. § 24-9-84.1). Prior convictions admitted when defendant placed character in evidence. — Trial court properly admitted impeachment evidence of the defendant’s convictions of vehicular homicide that were over 10 years old. Defendant’s testimony regarding the defendant’s charitable activities resulted in the defendant’s placing the defendant’s character into issue. McNabb v. State, 292 Ga. App. 395, 664 S.E.2d 800, 2008 Ga. App. LEXIS 783 24-6-609 (2008), cert. denied, No. S08C1910, 2008 Ga. LEXIS 927 (Ga. Oct. 27, 2008) (decided under former O.C.G.A. § 24-9-84.1). Prior conviction properly admitted. — Defendant impeached a plumbing contractor’s testimony to the fullest extent allowed by former O.C.G.A. § 24-9-84.1 by introducing and reading into the record a certified copy of the felony conviction of the witness. LN West Paces Ferry Assocs., LLC v. McDonald, 306 Ga. App. 641, 703 S.E.2d 85, 2010 Ga. App. LEXIS 1016 (2010), cert. denied, No. S11C0454, 2011 Ga. LEXIS 237 (Ga. Mar. 7, 2011) (decided under former O.C.G.A. § 24-9-84.1). Trial court did not abuse the court’s discretion in allowing the state to introduce evidence of the defendant’s prior aggravated assault conviction under former O.C.G.A. § 24-9-84.1 because the trial court specifically addressed the relevant factors including the kind of felony involved, the date of the conviction, and the importance of the witness’s credibility and properly considered the specific facts and circumstances of the defendant’s prior aggravated assault conviction, as required by former § 24-9-84.1(b), before concluding that the probative value of evidence of the conviction substantially outweighed the evidence’s prejudicial effect; the former statute itself contained no distinction between defendants and witnesses when more than ten years had passed since the applicable conviction or release. Dozier v. State, 311 Ga. App. 713, 716 S.E.2d 802, 2011 Ga. App. LEXIS 827 (2011), overruled in part, Clay v. State, 290 Ga. 822, 725 S.E.2d 260, 2012 Ga. LEXIS 301 (2012) (decided under former O.C.G.A. § 24-9-84.1). Defendant failed to prove that defense counsel was ineffective for failing to ask an inmate witness about the witness’s numerous prior convictions because the record showed that the defendant’s lawyer did ask the inmate about convictions that were not too old to be admitted pursuant to former O.C.G.A. § 24-9-84.1 and the defendant did not come forward with any legal theory under which the remaining convictions about which the defendant’s lawyer did not ask would have been admissible. Sears v. State, 292 Ga. 64, 734 S.E.2d 345, 2012 Ga. LEXIS 948 (2012) 509 Prior Convictions of Defendant (Cont’d) (decided under former O.C.G.A. § 24-984.1). Trial court did not err in refusing to allow the defendant to impeach a state’s witness with a prior drug conviction that was over 10 years old and was not relevant to the witness’s capacity as an eyewitness to an automobile accident. Smith v. State, 319 Ga. App. 164, 735 S.E.2d 153, 2012 Ga. App. LEXIS 1048 (2012) (decided under former O.C.G.A. § 24-9-84.1). Trial court did not err in admitting the defendant’s prior theft-by-receiving convictions because that evidence was admissible, implicating a perpetrator’s honesty. Stroud v. State, 301 Ga. 807, 804 S.E.2d 418, 2017 Ga. LEXIS 690 (2017). Failure to object to admission. — Defendant waived any objection to the admission of the certified copies of the defendant’s prior convictions by responding that the defendant had “no objection” when the convictions were tendered into evidence. McAllister v. State, 351 Ga. App. 76, 830 S.E.2d 443, 2019 Ga. App. LEXIS 385 (2019), cert. denied, No. S19C1489, 2020 Ga. LEXIS 115 (Ga. Feb. 10, 2020). Questioning defendant about convictions allowed. — Trial court did not err by denying defendant’s motion in limine, which sought to prevent the state, for the purpose of impeachment, from questioning defendant, if defendant testified at trial, regarding defendant’s prior convictions for burglary, statutory rape, and failure to register as a sex offender as former O.C.G.A. § 24-9-84.1 specifically applied to the situation and permitted the questioning regarding defendant’s prior convictions. Whitaker v. State, 283 Ga. 521, 661 S.E.2d 557, 2008 Ga. LEXIS 429 (2008) (decided under former O.C.G.A. § 24-9-84.1). Prior Convictions and Testimony of Witnesses Obstructing or hindering law enforcement officers. — In a parent’s tort action arising from an accusation by store employees that the parent’s child stole from the store, the trial court properly refused to strike evidence of an employee’s 24-6-609 conviction for violating O.C.G.A. § 1610-24 by obstructing or hindering law enforcement officers submitted in the parent’s motion for summary judgment response even though the conviction was not used to impeach the employee at the employee’s deposition. The conviction could be used for impeachment at trial under former O.C.G.A. § 24-9-84.1(a)(1) because the violation was a felony punishable by imprisonment for not less than one nor more than five years and similarly may be submitted in the summary judgment motion even though it was not presented to the witness at the deposition. Todd v. Byrd, 283 Ga. App. 37, 640 S.E.2d 652, 2006 Ga. App. LEXIS 1512 (2006), cert. denied, No. S07C0633, 2007 Ga. LEXIS 372 (Ga. May 14, 2007), overruled in part, Ferrell v. Mikula, 295 Ga. App. 326, 672 S.E.2d 7, 2008 Ga. App. LEXIS 1330 (2008) (decided under former O.C.G.A. § 24-9-84.1). Indictment is not a conviction. — Trial court did not err by only allowing into evidence the certified convictions of the state’s witness and by not allowing the indictments associated with those convictions to be admitted into evidence as well because the indictments should not have been admitted into evidence along with the witness’s convictions; an indictment represented only accusations against a defendant, and was not in itself a conviction. Carter v. State, 289 Ga. 51, 709 S.E.2d 223, 2011 Ga. LEXIS 253 (2011) (decided under former O.C.G.A. § 24-984.1). First offender plea of witness inadmissible. — In the defendant’s murder trial, the trial court did not err in excluding an eyewitness’s first offender plea to forgery because the eyewitness had completed the eyewitness’s probation and been discharged; even if a first offender plea was probative of bias in favor of the state, the defendant made no proffer explaining a relationship between the witness’s prior discharge and the eyewitness’s testimony in the defendant’s case. Jones v. State, 305 Ga. 653, 827 S.E.2d 254, 2019 Ga. LEXIS 235 (2019). Prior conviction of witness improperly admitted. — Trial court did not err when the court failed to give the defen- 510 dant’s requested charge on impeachment by a prior conviction because the statutory requirements had not been met, and the witness’s 1988 conviction should not have been admitted, so the fact that the defendant was allowed to use the prior conviction evidence at all, inured to the defendant’s benefit; the trial court’s failure to give the charge requested was harmless error as it was not highly probable that the error contributed to the verdict; the jury was properly instructed on impeachment in general; and, during closing argument, defense counsel was able to use the prior conviction and other evidence to argue to the jury that the witness’s testimony was not worthy of belief. Cannon v. State, 302 Ga. 327, 806 S.E.2d 584, 2017 Ga. LEXIS 876 (2017). Because Georgia’s new rules of evidence applied and the defendant’s prior felony conviction was not more than 10 years old, the trial court was not required to list the specific factors the court considered in ruling that the prior conviction was admissible for the purpose of generally attacking the defendant’s credibility; nevertheless, the trial court did list the factors the court considered, including the fact that the defendant’s credibility would be a substantial factor in the case, the probative value of the conviction, the nature of the prior crime of burglary as making it less likely to serve as improper propensity evidence of a drug possession offense, and the age of the prior conviction as mitigating an improper propensity inference. Smith v. State, 331 Ga. App. 296, 771 S.E.2d 8, 2015 Ga. App. LEXIS 162 (2015), overruled in part, Hill v. State, 360 Ga. App. 143, 860 S.E.2d 893, 2021 Ga. App. LEXIS 318 (2021). Admission of evidence of the defendant’s prior aggravated assault conviction for impeachment purposes was not erroneous as the defendant’s credibility was under attack by the state since the defendant claimed that the defendant was justified in the shooting death of the victim. Jones v. State, 318 Ga. App. 105, 733 S.E.2d 407, 2012 Ga. App. LEXIS 858 (2012) (decided under former O.C.G.A. § 24-9-84.1). Investigator’s testimony did not bolster. — Trial court did not err in admitting testimony by the investigator 24-6-609 because even though the state relied heavily on the co-defendant’s testimony, the investigator’s testimony did not give critical weight to that testimony and there was other evidence linking the defendant to the two burglaries. Silvey v. State, 335 Ga. App. 383, 780 S.E.2d 708, 2015 Ga. App. LEXIS 774 (2015). Prior conviction of witness properly excluded. — In convictions of child molestation, aggravated child molestation, and aggravated sexual battery, a trial court properly excluded for impeachment purposes prior convictions of a motel clerk, who testified that the clerk recalled renting a room to defendant and the victim, since the prior convictions were more than 10 years old. Woods v. State, 304 Ga. App. 403, 696 S.E.2d 411, 2010 Ga. App. LEXIS 539 (2010) (decided under former O.C.G.A. § 24-9-84.1). Prior conviction of witness improperly excluded. — Although the victim’s conviction for possession of cocaine might have been admissible as the conviction was less than 10 years old and constituted a crime punishable by imprisonment in excess of one year, the trial court erred in merely finding that the probative value of the victim’s prior conviction for possession of cocaine was outweighed by the conviction’s prejudicial effect and by not requiring the state to show that such prejudice substantially outweighed any probative value; however, the error was harmless because the admission of the victim’s prior conviction would have been cumulative of the victim’s own damaging testimony. Williams v. State, 328 Ga. App. 876, 763 S.E.2d 261, 2014 Ga. App. LEXIS 596 (2014). Probation did not qualify as confinement. — Trial court did not err when the court declined to permit the defendant to impeach a witness under former O.C.G.A. § 24-9-84.1 with prior convictions because more than ten years had elapsed since the witness was released from the confinement resulting from the convictions, and defense counsel did not provide specific facts and circumstances demonstrating that the probative value of the convictions outweighed their prejudicial effect; probation did not qualify as confinement under former § 24-9-84.1(b), 511 Prior Convictions and Testimony of Witnesses (Cont’d) and the legislature distinguished “confinement” from release on parole and suspended and probated sentences. Allen v. State, 286 Ga. 392, 687 S.E.2d 799, 2010 Ga. LEXIS 82 (2010) (decided under former O.C.G.A. § 24-9-84.1). Actions of Counsel Counsel not ineffective in failing to object to use of old convictions. — Despite the age of the defendant’s three prior convictions, trial counsel reasonably did not object to the convictions’ use for impeachment purposes. Newman v. State, 309 Ga. 171, 844 S.E.2d 775, 2020 Ga. LEXIS 457 (2020). Effective assistance of counsel. — Defense counsel did not perform deficiently when defense counsel failed to make a meritless objection to the evidence of defendant’s conviction for giving false information that was less than 10 years old because former O.C.G.A. § 24-984.1(a)(3) and (b) authorized the admission of convictions 10 years old or less for crimes involving dishonesty or making a false statement, and the trial court did not have to weigh the probative value of the old conviction against the prejudicial effect since the conviction at issue was less than 10 years old. Habersham v. State, 289 Ga. App. 718, 658 S.E.2d 253, 2008 Ga. App. LEXIS 190 (2008) (decided under former O.C.G.A. § 24-9-84.1). Defense counsel’s failure to object or move for a mistrial based on the state’s introduction of evidence relating to a witness’s misconduct that fell short of a conviction was not ineffective assistance under circumstances in which counsel’s decisions not to object to the state’s pursuit of the topic of the witness’s misdemeanor driving violations, and to attempt to rehabilitate the defendant by showing the minor nature of one of the violations, were objectively reasonable. Defense counsel could not have been faulted for failing to complete the state’s work for it, or for declining to highlight any of this testimony. Noellien v. State, 298 Ga. App. 47, 679 S.E.2d 75, 2009 Ga. App. LEXIS 582 (2009) (decided under former O.C.G.A. § 24-9-84.1). 24-6-609 With regard to a defendant’s conviction for aggravated assault, although the prosecutor was impermissibly permitted to impeach a defense witness by asking the witness about a recent guilty plea to two counts of theft by taking, which was not a felony or a crime which involved dishonesty or making a false statement, the defendant failed to establish that defense counsel’s failure to object rendered defense counsel ineffective. At the hearing on the defendant’s motion for a new trial, defense counsel was not questioned on whether the failure to object was strategic and, given the overwhelming evidence of the defendant’s guilt, the defendant failed to show that there was a reasonable probability that the verdict would have been different if defense counsel had objected. Jacobs v. State, 299 Ga. App. 368, 683 S.E.2d 64, 2009 Ga. App. LEXIS 885 (2009) (decided under former O.C.G.A. § 24-9-84.1). Defendant failed to establish that the defendant received ineffective assistance of trial counsel due to counsel’s failure to provide the state with written notice of the defendant’s intent to use evidence of a witness’s prior conviction for impeachment purposes pursuant to former O.C.G.A. § 24-9-84.1(b) because even if the conviction had been admitted and the jury had disregarded the witness’s testimony, there remained evidence sufficient to convict the defendant; the witness’s trial testimony conflicted with the witness’s prior statements, and the witness admitted on the stand being a crack dealer. Lanier v. State, 288 Ga. 109, 702 S.E.2d 141, 2010 Ga. LEXIS 815 (2010) (decided under former O.C.G.A. § 24-984.1). Defendant did not show a reasonable probability that the trial would have ended differently if trial counsel had uncovered all the details about the victim’s first offender plea and cross-examined the victim about the victim’s possible bias toward the state because five witnesses separately testified that the defendant assaulted the victims with a gun; thus, even if the jury decided to completely disregard the victim’s testimony based on successful cross-examination, the testimony of four other eyewitnesses remained. Strong v. 512 State, 308 Ga. App. 558, 707 S.E.2d 914, 2011 Ga. App. LEXIS 237 (2011) (decided under former O.C.G.A. § 24-9-84.1). Trial court’s conclusion that trial counsel’s failure to obtain certified copies of the victim’s prior felony convictions and first offender plea, which the defendant asserted would have been admissible to impeach the victim and show bias under former O.C.G.A. § 24-9-84.1, did not constitute ineffective assistance was not clearly erroneous because counsel made a strategic decision not to expend the limited resources of the office to obtain the certified copies, choosing instead to focus on other avenues of defense. Strong v. State, 308 Ga. App. 558, 707 S.E.2d 914, 2011 Ga. App. LEXIS 237 (2011) (decided under former O.C.G.A. § 24-9-84.1). Trial counsel did not erroneously fail to impeach a state’s witness under former O.C.G.A. § 24-9-84.1(a)(3) with evidence of the witness’s prior misdemeanor convictions for theft by receiving stolen property and theft by taking because the defendant failed to show that the theft convictions would have been admitted for impeachment purposes at trial; the evidence the defendant presented at the motion for new trial hearing did not show that the misdemeanor theft convictions involved fraud or deceit within the meaning of former § 249-84.1(a)(3). Boatright v. State, 308 Ga. App. 266, 707 S.E.2d 158, 2011 Ga. App. LEXIS 172 (2011) (decided under former O.C.G.A. § 24-9-84.1). Trial counsel was not ineffective for failing to impeach the victim with felony convictions under former O.C.G.A. § 249-84.1 because the defendant did not show that, but for counsel’s failure to introduce the victim’s earlier convictions, there was a reasonable probability that the outcome of the trial would have been different; the victim was referred to as “not trustworthy” and “a thief” during the trial, and the victim’s conviction for burglary was admitted and referenced repeatedly during the trial. Askew v. State, 310 Ga. App. 746, 713 S.E.2d 925, 2011 Ga. App. LEXIS 652 (2011) (decided under former O.C.G.A. § 24-9-84.1). Trial counsel was not ineffective for failing to object when the prosecuting attorney offered certified copies of the defen- 24-6-609 dant’s prior felony conviction to impeach the defendant’s testimony under former O.C.G.A. § 24-9-84.1(a) because the trial court properly could have concluded that the probative value of the conviction substantially outweighed any prejudicial effect so the failure to object was not unreasonable; the prior conviction was recent, probative of the defendant’s credibility as a testifying witness, and involved conduct dissimilar to the burglary for which the defendant was on trial. Robinson v. State, 312 Ga. App. 110, 717 S.E.2d 694, 2011 Ga. App. LEXIS 908 (2011) (decided under former O.C.G.A. § 24-9-84.1). Counsel was not ineffective in failing to move to exclude the defendant’s statement to police because counsel’s strategy was to put the defendant’s version of the events forward without calling the defendant to the stand where the defendant would have been impeached with several prior felony convictions. Welch v. State, 298 Ga. 320, 781 S.E.2d 768, 2016 Ga. LEXIS 67 (2016) (decided under former O.C.G.A. § 24-9-84.1(a)(2)). Trial counsel was not ineffective for failing to impeach a neighbor with a prior murder conviction because the prior conviction was beyond the 10-year time limit. Williams v. State, 302 Ga. 474, 807 S.E.2d 350, 2017 Ga. LEXIS 922 (2017). Counsel was not ineffective for failing to impeach the woman who saw the shootings because, at the hearing on the motion for new trial, the defendant never asked counsel why counsel did not impeach the woman with the woman’s prior conviction for giving a false name to a police officer, and the supreme court assumed that counsel declined to do so as a matter of strategy; and a competent lawyer could have concluded reasonably that it was better to portray the woman as wellmeaning-but-mistaken, rather than attempting to portray the woman as dishonest by impeaching the woman with a prior conviction. Wofford v. State, 305 Ga. 694, 827 S.E.2d 652, 2019 Ga. LEXIS 278 (2019). Appellant’s felony murder conviction was upheld because decision of appellant’s trial counsel to take it easy on sympathetic witness that counsel did not want to be seen as attacking was strategic deci- 513 24-6-609 Actions of Counsel (Cont’d) sion and did not constitute ineffective assistance of counsel. Patterson v. State, 314 Ga. 167, 875 S.E.2d 771, 2022 Ga. LEXIS 184 (2022). Counsel not ineffective. — While trial counsel might have been deficient by failing to contend that the probative value of admitting the defendant’s prior convictions for impeachment purposes did not substantially outweigh the prejudicial effect of the evidence, given that the defendant failed to show prejudice, this claim failed. Miller v. State, 283 Ga. 412, 658 S.E.2d 765, 2008 Ga. LEXIS 264 (2008) (decided under former O.C.G.A. § 24-984.1). Defense counsel properly advised a defendant in the defendant’s prosecution for, inter alia, malice murder that, if the defendant testified at trial, the state could attempt to introduce prior convictions into evidence as the state was permitted to do so under former O.C.G.A. § 24-984.1(a)(2), even if the defendant’s character was not placed in issue, so long as the probative value of admitting the evidence substantially outweighed the prejudicial effect of the evidence. Brooks v. State, 285 Ga. 246, 674 S.E.2d 871, 2009 Ga. LEXIS 82 (2009) (decided under former O.C.G.A. § 24-9-84.1). Defendant failed to demonstrate ineffective assistance of counsel in the defendant’s prosecution for, inter alia, robbery by force because it was a reasonable strategy to agree to the admission under former O.C.G.A. § 24-9-84.1(b) of a prior 1992 Texas conviction for possession of cocaine, even though the conviction was over 10 years old, as the defendant testified on the defendant’s own behalf and wanted to put it all out there. Everett v. State, 297 Ga. App. 351, 677 S.E.2d 394, 2009 Ga. App. LEXIS 429 (2009) (decided under former O.C.G.A. § 24-9-84.1). Jury Charge Limiting instruction on prior convictions not required. — In a defendant’s prosecution for malice murder and armed robbery, the trial court did not err in failing to instruct the jury without request that the jurors limit their consid- eration of the defendant’s prior convictions to the purpose of impeachment only under former O.C.G.A. § 24-9-84.1(a) as information regarding the defendant’s prior convictions was not obtained in violation of the defendant’s constitutional rights against self-incrimination under U.S. Const., amend. 5. Phillips v. State, 285 Ga. 213, 675 S.E.2d 1, 2009 Ga. LEXIS 44 (2009) (decided under former O.C.G.A. § 24-9-84.1). Jury charge not required if impeached witness was not primary witness. — Trial court did not err in refusing a defendant’s requested charge on impeachment of an accomplice witness by proof of a crime of moral turpitude pursuant to former O.C.G.A. § 24-984.1(a)(1), although an instruction on impeachment by proof of a prior conviction was warranted. Any failure to give such an instruction was harmless because the witnesses were not “primary” witnesses; the defendant was the primary witness. Stewart v. State, 286 Ga. 669, 690 S.E.2d 811, 2010 Ga. LEXIS 240 (2010) (decided under former O.C.G.A. § 24-9-84.1). Appeals Issue waived on appeal. — Defendant waived for purposes of appeal defendant’s claim that the defendant did not have to provide advance written notice to the state of defendant’s intent to introduce the victim’s prior conviction to impeach the victim since the conviction was not more than ten years old for purposes of former O.C.G.A. § 24-9-84.1 because the defendant’s trial counsel did not present that argument to the trial court but told the trial court that the defendant filed the notice of intent for the reason that the conviction was more than ten years in age; counsel then argued that defendant’s advance written notice to the state was sufficient, but the defendant did not argue that the notice did not need to be given under former § 24-9-84.1(b), and in light of trial counsel’s actions, the defendant could not claim on appeal that the trial court erred in considering the sufficiency of the advance notice to the state for purposes of former § 24-9-84.1(b). Crowder v. State, 305 Ga. App. 647, 700 S.E.2d 642, 2010 Ga. App. LEXIS 777 514 (2010) (decided under former O.C.G.A. § 24-9-84.1). Supreme court was precluded from reviewing on appeal the defendant’s claim that the trial court violated former O.C.G.A. § 24-9-84.1 by admitting into evidence the defendant’s prior convictions for drug offenses and by failing to enter express findings in the record because although the defendant testified and admitted the drug convictions on direct examination, the record did not contain any previous motion in limine, objection, hearing, or ruling regarding the admissibility of those prior convictions; those omissions were not cured by trial counsel’s testimony that, although counsel was not looking at the transcripts and was speaking strictly from memory, counsel had been under the impression that the prior convictions would come in, and even if the defendant had previously moved for exclusion of the prior convictions and a hearing had been held, the absence of any ruling on the record would take the case out of 24-6-610 the usual rule that the record was preserved and the defendant was not required to object to the evidence during trial. Collier v. State, 288 Ga. 756, 707 S.E.2d 102, 2011 Ga. LEXIS 178 (2011) (decided under former O.C.G.A. § 24-984.1). Defendant could not claim on appeal that the trial court erred in considering the sufficiency of the advance notice to the state for purposes of former O.C.G.A. § 24-9-84.1(b) because the trial court held that evidence of the victim’s three older convictions was inadmissible since the convictions were more than ten years old, and the defendant had not provided written notice within ten days of trial; no objection was made to the trial court’s ruling, and the defendant did not at any point argue that the convictions were less than ten years old. Askew v. State, 310 Ga. App. 746, 713 S.E.2d 925, 2011 Ga. App. LEXIS 652 (2011) (decided under former O.C.G.A. § 24-9-84.1).