Beasley v. State , 202 Ga. App. 349 ( 1991 )

Judge Arnold Shulman.

The appellant brings this appeal from the denial of his motion for new trial following his conviction of selling cocaine.

1. The appellant contends that the trial court erred in permitting the undercover agent to whom the sale was made to relate to the jury the content of certain statements made to her by an informant on the night of the transaction. The trial court originally sustained the appellant’s objection to such questioning on hearsay grounds but thereafter allowed it on redirect examination, based on a determination that defense counsel had opened the door to it during his cross-examination of the agent. We find no error. See generally Williams v. State, 251 Ga. 749, 785 (312 SE2d 40) (1983); Halm v. State, 125 Ga. App. 618 (1) (188 SE2d 434) (1972).

2. On the same date the appellant was indicted for the present offense, which was alleged to have occurred on May 5, 1989, a separate indictment was returned charging that on May 12, 1989, he had committed the offense of possessing cocaine with intent to distribute. The appellant was tried and convicted on the latter charge prior to the trial of the present case; and on the basis of that conviction, he was sentenced to life imprisonment in the present case pursuant to OCGA § 16-13-30 (d), which mandates the imposition of a life sentence “[u]pon conviction of a second or subsequent [such] offense. . . .” The appellant apparently accepts that his present conviction constituted a “conviction of a second or subsequent offense” within the contemplation of this Code section. However, he argues that where one has not “received the benefit of rehabilitation before the harshest punishment [is] imposed,” the mandatory imposition of a life sentence constitutes cruel and unusual punishment; and he therefore contends that, as applied to the present case, the statute is violative of the Eighth and Fourteenth Amendments to the United States Constitution.

The transcript of the sentencing hearing reveals that after the state had introduced a certified copy of the prior conviction into evidence without objection, appellant’s counsel advised the court that it was his belief that “Your Honor shares my view that [OCGA § 16-13-30] as applied to these type of cases is unconstitutional as it violates the Eighth Amendment prohibition against cruel and unusual punishment.” Counsel did not elaborate, and the trial court responded as follows: “The court doesn’t agree that it’s unconstitutional since the Supreme Court of Georgia has applied it already.” (The court was evidently referring to Grant v. State, 258 Ga. 299 (368 SE2d 737) (1988), in which the Supreme Court rejected an attack on the statute as being facially violative of the Eighth Amendment.) Counsel’s only further comment on the issue was, “Yes, sir.”

Under these circumstances, we must conclude that the appellant failed to elicit a ruling from the trial court on his contention that OCGA § 16-13-30 (d) is unconstitutional as applied to the particular facts of the present case. An appellate court “ ‘ “will not pass upon the constitutionality of a statute unless it clearly appears that the point was properly raised in the trial court and passed on.” [Cit.]’ [Cit.]” Hardison v. Haslam, 250 Ga. 59, 61 (295 SE2d 830) (1982). Consequently, we hold that this enumeration of error presents nothing for review. We note, however, that the Supreme Court has recently held that the General Assembly could legitimately have considered the “repeated[] possession] of cocaine with the intent to place it in the stream of commerce” to be a sufficient threat to the public health, safety and welfare to warrant the mandatory imposition of a life sentence. Tillman v. State, 260 Ga. 801, 802 (400 SE2d 632) (1991). Thus, there would appear to be no constitutional requirement that a defendant receive “the benefit of rehabilitation” before a life sentence for such repeated conduct may be imposed.

Judgment affirmed.

Carley, P. J., concurs. Beasley, J., concurs specially.