England v. State ( 1994 )

Smith, Judge.

Jermaine Randolph England and a codefendant were charged with armed robbery and possession of a firearm during the commission of a felony. England was convicted of the former charge and acquitted of the latter. He appeals, claiming the trial court erred in allowing the State to impeach an alibi witness’s character with the witness’s “first offender conviction [sic]” and in subsequently instructing the jury “as to the effect of said impeachment.”

England’s witness testified on direct examination that he had been convicted in the past of shoplifting, but no other crime. During cross-examination a bench conference was held at which the following transpired:

“THE STATE: [The defense witness has] been convicted of theft by receiving, and I’m gonna use that to impeach him, because first of all, that’s the only thing he said — he said he was only convicted of shoplifting, —

“THE COURT: That’s correct.

“THE STATE: [inaudible]. . . .

“THE STATE: And he’s also “first offender” under that. And the State can, under . . .

“TRIAL COUNSEL: We have no objection to that, Your Honor.” (End of bench conference.) The State then proceeded to confront the witness with his prior “conviction” for theft by receiving. On redirect, trial counsel confirmed that the shoplifting charge brought out on direct examination and the theft by receiving charge brought out on cross-examination, were treated together “as sort of a package” — “all done at one time.”

Trial counsel then asked the witness whether his first offender status had ever been revoked. The witness responded negatively. Trial counsel then addressed the court: “As a matter of law, now that this evidence is out, I’m gonna move to with — to have the court withdraw from consideration State’s Exhibit 23, because first offender status was given and was never revoked. And this man has never been convicted of anything.” The court agreed that first offender treatment is not a “conviction.” See OCGA §§ 42-8-60; 42-8-62 (a). The State asked for an opportunity to research the law, and the court reserved ruling on whether the disputed exhibit would go out with the jury.

When the matter was revisited, trial counsel requested that the court fashion a charge “just to let the jury know that he’s never been convicted, but that he’s been impeached. . . .” The exhibit was ultimately sent out with the jury at the time of deliberation.

1. We first note that trial counsel at no time challenged whether the witness’s first offender treatment for theft by receiving was properly used to impeach his claim that he had never been convicted of any crime other than shoplifting. On the contrary, trial counsel conceded that his witness had been impeached when he requested a charge to that effect. Therefore, that issue is not before us. Strong v. State, 263 Ga. 587, 589 (3) (436 SE2d 213) (1993).

Since the impeachment of England’s witness is not at issue, we find no basis for reversal. The exhibit in question merely documented facts brought out by the State without objection when the defense witness was “impeached.” Moreover, the exhibit actually confirms England’s assertion that the witness received first offender treatment rather than a conviction on the theft by receiving charge. Since the exhibit was merely cumulative of evidence brought out without objection on cross-examination of England’s witness, any error in allowing the exhibit to go out with the jury was harmless. See, e.g., Williams v. State, 256 Ga. 655, 657 (2) (352 SE2d 756) (1987).

2. England complains that the court’s instruction on the effect of his witness’s first offender plea was confusing, misleading, and incorrect. However, the potentially damaging impact of the first offender plea on the witness’s credibility would not be lessened significantly by an instruction on the proper characterization of that plea under Georgia law, no matter how accurately stated. Since the challenged instruction involved at best a collateral matter, we find any error to be harmless. See Kemp v. State, 163 Ga. App. 680, 682 (3) (296 SE2d 71) (1982).

Judgment affirmed.

McMurray, P. J., Birdsong, P. J., Andrews, J., and Senior Appellate Judge Harold R. Banke concur. Beasley, P. J., and Johnson, J., concur in the judgment only. Pope, C. J., and Blackburn, J., dissent.