Whitehead v. State , 232 Ga. App. 140 ( 1998 )

POPE, Presiding Judge.

For his invasion of a Burger King and his attack on its assistant manager, a jury convicted Rodney Ravon Whitehead of armed robbery, aggravated assault, and possession of a firearm during the commission of a crime. He appeals. We find the evidence sufficient to support the conviction. We must reverse, however, because the trial court improperly required defense counsel to tender into evidence a prior inconsistent statement, thereby depriving Whitehead of his right to final closing argument.

1. The evidence showed that Whitehead had worked with the victim, an assistant manager at the Burger King in question, for a month and knew Burger King’s procedures and schedules. During that time, the victim became familiar with Whitehead’s voice and physical attributes. The attack occurred three weeks after the assistant manager fired Whitehead for tardiness and absenteeism. As'the victim was opening the business around 5:00 a.m., she was accosted by two men whose faces were disguised by black ski masks. One of the men held a gun to the victim’s head and forced her into the restaurant’s office. The other man, later identified as Whitehead, quickly found the proper light switch, turned on the light, and demanded the victim open the safe. When she had trouble doing so, he told her, “aw, [expletive], you know you know how to open that safe.” At that point the assistant manager recognized Whitehead’s voice, as he had often used that expletive when referring to women. After the victim opened the safe and took the money inside, Whitehead forced her to the back of the store and, pointing to an unlabeled door, told his partner, “put her in the freezer.” During this time the assistant manager was able to view Whitehead and further recognized him by his physical build. Evidence in the case showed that the freezer to which Whitehead pointed was adjacent to another identical, unmarked cooler door. When the criminals left, the victim called police, told the responding officer that Whitehead was one of the assailants, and gave the officer Whitehead’s address. The officer went to that address and could not find Whitehead there. In his own defense, Whitehead testified he was at home sleeping when the robbery occurred.

This evidence was sufficient to allow a reasonable jury to find Whitehead guilty beyond a reasonable doubt of these charges. See generally Jackson v. Virginia, 443 U. S. 307 (99 SC 2781, 61 LE2d 560) (1979). The voice identification testimony, along with circumstantial evidence showing the invaders were familiar with the internal operations and layout of Burger Kang, allowed the jury to reach its conclusions. See Stirrat v. State, 226 Ga. App. 350, 351 (1) (486 SE2d 640) (1997).

2. The trial court erred, however, when it required Whitehead’s counsel to tender into evidence a document he used in his attempt to impeach the assistant manager’s testimony with a prior inconsistent statement. The assistant manager claimed she told the responding officer that the attackers had guns and that she recognized Whitehead’s voice. Defense counsel asked her to examine a copy of the written statement she first gave police, and she acknowledged the statement was hers. When Whitehead’s attorney pointed out that her written statement contained no mention of guns, the State objected on grounds that the document was not in evidence. The court sustained the objection, telling counsel, “If you want to go into the contents of a document, it doesn’t matter whether you’re doing it for impeachment or not, you’ve got to have it in evidence.” Whitehead’s attorney acquiesced, and the written statement was marked as an exhibit and admitted in evidence. Contrary to the dissent’s position, the fact that the trial court sustained the State’s objection was sufficient to preserve the error for appellate review, and Whitehead was not required to further object or take exception to the trial court’s ruling. “There is, of course, no longer any requirement in Georgia that counsel except to an adverse ruling by the trial court in order to preserve the issue for appeal. [Cits.]” Stone v. State, 177 Ga. App. 750, 752 (4) (341 SE2d 280) (1986). See also Ford v. State, 200 Ga. App. 376 (408 SE2d 166) (1991).

Whitehead correctly argues that he should not have been required to tender the document into evidence to elicit the impeaching prior inconsistent statement. The proper method for impeaching a witness with a prior inconsistent statement is codified in OCGA § 24-9-83. In Duckworth v. State, 268 Ga. 566, 568-569 (492 SE2d 201) (1997), the court held that statute “does not require that the prior inconsistent statement be admitted into evidence before it is used for impeachment purposes. Nor does the case law mandate the introduction of the prior written statement into evidence before questioning the witness. . . . [T]he purpose behind laying a foundation for impeachment is met by showing or reading the prior written statement to the witness before asking questions about it. . . .” (Paragraph indentions omitted.) Therefore, the trial court erred when it prohibited Whitehead from questioning the witness regarding a prior inconsistent statement contained in a document not admitted in evidence.

Although the trial court’s error could under different circumstances be considered harmless error, we find Whitehead has shown “presumptive harm” because, to pursue his attempt at impeaching the witness, he was required to introduce evidence and forfeit his right to open and conclude the closing argument. See OCGA § 17-8-71; Givens v. State, 264 Ga. 522, 523 (1) (448 SE2d 687) (1994); Hubbard v. State, 167 Ga. App. 32, 35 (7) (305 SE2d 849) (1983). The cross-examination of a witness does not constitute the introduction of evidence under OCGA § 17-8-71. Kennebrew v. State, 267 Ga. 400, 404 (4), n. 2 (480 SE2d 1) (1996). But here, the court erroneously required Whitehead to choose between effectively cross-examining the witness and giving up the final argument.

Although Whitehead did not object to the court’s declaration that the State would have the right to conclude, the question of waiver of error is not before us.¹ If Whitehead had objected to the order of argument, as the dissent would require, that objection would have been properly overruled because Whitehead did introduce evidence, even though he did so pursuant to an erroneous ruling of the trial court. Rather, the issue is whether the court’s action in sustaining the state’s original objection harmed Whitehead because it deprived him of the “valuable” right to the final word. See Hubbard, 167 Ga. App. at 35. The evidence against Whitehead was strong, but not overwhelming. The case largely turned on the credibility of the victim, who did not see Whitehead’s face. Under the circumstances, we cannot find the presumption of harm to be overcome. See Givens, 264 Ga. at 523. Therefore, the convictions must be reversed and the case remanded for retrial.

3. As our holding in Division 2 requires reversal of the case, and we find that Whitehead raises no other errors likely to recur on retrial, we need not address the remaining enumerations.

Judgment reversed.

Blackburn, Ruffin and Eldridge, JJ, concur. Andrews, C. J., McMurray, P. J., and Beasley, J., dissent.

1 Compare Scott v. State, 243 Ga. 233, 234 (2) (253 SE2d 698) (1979) (failure to object to court’s ruling on order of argument constitutes waiver).