Johnson v. State , 202 Ga. App. 590 ( 1992 )

Carley, Presiding Judge.

Appellant was tried before a jury and found guilty of distributing cocaine. He appeals from the judgment of conviction and sentence entered by the trial court on the jury’s verdict of guilt.

1. Appellant testified in his own defense and denied committing the crime, claiming to have been in Florida in the company of one Wayne Bryant. Subsequently, over appellant’s continuing objection, the State was permitted to cross-examine him regarding his knowledge of Bryant’s criminal record and whether he knew that Bryant had “been [recently] convicted of two sales of cocaine).]” The failure to sustain the objections to this line of cross-examination is enumerated as error.

There was no evidence that appellant and Bryant were co-conspirators, having traveled together to Florida to obtain cocaine for distribution. If Bryant had testified as an alibi witness at appellant’s trial, he could have been impeached by proof of his previous convictions. Since Bryant did not testify, the State could have questioned appellant about his failure to have called Bryant. Shirley v. State, 245 Ga. 616, 618 (1) (266 SE2d 218) (1980); Pritchard v. State, 160 Ga. App. 105, 107 (4) (286 SE2d 338) (1981). However, the State could not attempt to impeach appellant by showing that the absent Bryant had previous convictions. Western & Atlantic R. Co. v. Vaughan, 113 Ga. 354 (1) (38 SE 851) (1901); Cross v. State, 136 Ga. App. 400, 405 (6) (221 SE2d 615) (1975). “The trial court [erred] in allowing the [S]tate’s attorney to cross-examine [appellant] as to whether [his companion] had ‘been [convicted of selling cocaine].’ This evidence was not shown to be relevant to any issue in the case and must consequently be construed as an improper attempt to impugn [appellant’s] character and establish his guilt by association. [Cits.]” Hill v. State, 176 Ga. App. 509, 510 (3) (336 SE2d 276) (1985).

2. Appellant’s remaining enumerations of error have been considered and are found to involve circumstances unlikely to recur upon retrial.

Judgment reversed.

Sognier, C. J., McMurray, P. J., Birdsong, P. J., Pope, Cooper, Andrews, JJ., and Judge Arnold Shulman concur. Beasley, J., dissents.