Mable v. State

McMurray, Presiding Judge.

Walter Mable was convicted of armed robbery, and he appeals. Held:

1. Appellant’s first enumeration of error raises the sufficiency of the evidence. The cashier at a convenience store was robbed at knife point. An hour and a half later, and again at trial, the cashier identified appellant as the perpetrator of the armed robbery. Another witness, a customer of the store who arrived as the appellant was leaving, recognized appellant as a former resident of this witness’ former neighborhood and pointed him out from a photographic lineup and at trial.

After a.thorough review of the evidence at trial, we find that a rational trier of fact could reasonably have found defendant guilty beyond a reasonable doubt of the offense of armed robbery. Jackson v. Virginia, 443 U. S. 307 (99 SC 2781, 61 LE2d 560); Riley v. State, 196 Ga. App. 148 (395 SE2d 394).

2. Appellant contends the trial court erred in failing to strike testimony by Detective-Sergeant E. C. Mansfield of the Americus Police Department regarding answers appellant gave while in custody to questions Mansfield asked after appellant had invoked his right to counsel. When appellant was apprehended, he had $612 cash in his possession. Mansfield testified that after appellant stated he did not have anything to say and requested a lawyer, the following conversation ensued:

“Mansfield: Is this your money?

Appellant: Yes, that is my money.

Mansfield: How much money is it?

Appellant: It is about two hundred and something dollars, isn’t it?

Mansfield: Where did you get this kind of money from?

Appellant: I have been working.

Mansfield: Can you tell me where you work at?

Appellant: Well, I don’t have anything else to say about it.”

Mansfield testified that other than telling appellant the money totalled $612, there was no further discussion. This testimony was followed by a question posed by the prosecutor regarding the officer’s knowledge of appellant’s ability to earn money prior to the robbery. Appellant’s counsel objected to that question, then moved the court to strike all of Mansfield’s testimony set forth above on the basis that it occurred after appellant invoked his right to counsel and requested the trial court to instruct the jury to disregard that testimony. The trial court overruled the motion.

A primary purpose of a motion to strike evidence is to excise evidence which was admissible when offered but which later appears to be inadmissible. See Annis v. Tomberlin & Shelnutt Assoc., 195 Ga. App. 27, 33 (6), 34 (392 SE2d 717). However, in the light of our general requirement that it is necessary to object to evidence at the time it is actually offered in order to avoid waiver of the objection, a motion to strike evidence may not be used to excise evidence where a movant who had an opportunity to do so fails to object contemporaneously with the admission of the evidence. Guthrie v. Bank South, Douglas, 195 Ga. App. 123, 125 (4), 126 (393 SE2d 60); Clayton County Water Authority v. Harbin, 192 Ga. App. 257, 258 (4) (384 SE2d 453); Woodruff v. Naik, 181 Ga. App. 70, 71 (4) (351 SE2d 233). In the case sub judice, when the testimony which was the subject of appellant’s motion to strike was offered, it had previously been shown to be the product of an uncontroverted violation of appellant’s right to counsel and as such was clearly inadmissible at the time it was offered. Thus, the issue of admissibility of the evidence at issue in the case sub judice was not the proper subject of a motion to strike evidence, but could have been raised only by a timely objection.

Nor can appellant’s motion to strike testimony be viewed as a timely objection. The witness was allowed to relate a lengthy conversation with appellant and the motion was thereafter stated only after the prosecutor moved on to another line of questions. Bennett v. State, 165 Ga. App. 600, 601 (3) (302 SE2d 367).

The State is correct in its contention that the appellant’s failure to object in a timely fashion constituted a waiver of any error. Thompson v. State, 258 Ga. 816, 817 (2) (375 SE2d 219); Nixon v. State, 255 Ga. 656, 658 (2a) (340 SE2d 7).

Judgment affirmed.

Deen, P. J., Banke, P. J., Birdsong and Pope, JJ., concur. Beasley, J., concurs specially. Carley, C. J., Sognier and Cooper, JJ., dissent.