Jones v. State , 260 Ga. App. 487 ( 2003 )

Adams, Judge,

concurring in part and dissenting in part.

I respectfully dissent to the majority’s conclusion in Division 2 that the trial court’s failure to allow Jones opening and closing argument was harmful. Rather, the evidence demanded a guilty verdict. See Lane v. State, 274 Ga. 751, 753 (559 SE2d 455) (2002).

At trial, Officer Smith testified that he saw Jones discard several items as he was running, and for each, Smith described the item and indicated where during the chase Jones dropped it by making a mark on a diagram of the scene. Smith testified,

The white — white paper towel was dropped here, because I was able to run by and visually see it. As I ran, I saw it fall to the ground. As I was chasing him, he was dumping stuff off here, but I could not tell what the items were. One was green; I believe one was pink.

Decided March 21, 2003.

Then, Smith saw Jones discard what appeared to be a glass cylinder at a point in the chase when he was “real close” to Jones. Again Smith indicated on the diagram where Jones dropped the item. Smith testified that he was as close to Jones at that point as he was to the prosecutor at trial. With regard to the tube, Smith testified, “He pulled the item out. It appeared to be a glass cylinder, tube — it was clear; you could tell it was glass — that he dropped on the ground.” Shortly after he caught Jones and Jones was handcuffed, Smith retraced his steps through the school to where he saw Jones drop the glass cylinder and found it there.

The majority contends that this testimony was seriously impeached, but the record does not support that conclusion. On cross-examination, after the court gave Jones wide latitude questioning Smith, Jones was able to show that the officer had previously testified that he did not know “exactly” what the items were that Jones had discarded during his run and that in his report he indicated only that he had seen Jones discard “items.” But, it is not reasonable to read this testimony to mean that Officer Smith had no idea what Jones had discarded, and that after the arrest he simply hunted for anything in the hall that he could find. Rather, Smith’s pretrial and trial testimony is entirely consistent in that it shows that he never knew “exactly” what the item was: he only knew that it was a glass tube or cylinder and not some specific device. The earlier statements are perfectly consistent with the officer’s trial testimony.

In addition, we note that flight and similar actions give rise to the inference of a consciousness of guilt. Langlois v. Wolford, 246 Ga. App. 209, 211 (1) (539 SE2d 565) (2000). In this case, the fact that Jones discarded items along the way raises the inference that Jones sought to conceal the nature of the discarded items. See id.

The error in this case is harmless if the evidence demands a verdict of guilty. Lane v. State, 274 Ga. at 753; Scott v. State, 243 Ga. 233, 234 (2) (253 SE2d 698) (1979). Given the specific testimony of what Smith saw at the time that Jones actually discarded the tube, the quick recovery of the tube, and the lack of serious impeachment of the officer’s testimony, I would hold that the error regarding opening and closing argument was harmless.

I am authorized to state that Presiding Judge Andrews and Presiding Judge Johnson join in this dissent.

Sullivan, Sturdivant & Ogletree, Harold A. Sturdivant, Michele W. Ogletree, for appellant. William T. McBroom III, District Attorney, Daniel A. Hiatt, Assistant District Attorney, for appellee.