☢ test - Í

renew an objection or offer of proof to preserve such claim of error for appeal.’ OCGA § 24–1–103(a). See also United States v. Isley, 369 Fed.Appx. 80, 92(II)(C)(2) (11 th Cir., 2010); Paul S. Milich, Ga. Rules of Evidence § 3:6 (database updated October 2015).” Harper v. State, 330 Ga.App. 561, 768 S.E.2d 755 (January 28, 2015). Armed robbery and related convictions affirmed; under pre-2013 Evidence Code, defendant failed to perfect objection to similar transaction evidence. Pre-trial, court ruled evidence admissible to prove bent of mind and course of conduct, but reserved ruling on use of evidence to show identity pending development of evidence at trial. During trial, court ruled the evidence also admissible to prove identity, with no objection from defense. Held, defense waived objection by failing to lodge it at the time of the court’s ruling. “[T]he analysis of Whitehead v. State, 287 Ga. 242, 248–249(2), 695 S.E.2d 255 (2010), that to preserve the issue for appellate review, the defendant need not renew an objection to the admission of evidence that the trial court had previously ruled admissible, does not apply in this case, because the trial court did not issue a final ruling on the identity issue at the pretrial hearing, and the basis for the State's tender of the similar transaction evidence changed mid-trial when the middleman recanted his identification of Harper as the gunman. At that point, when the trial court issued its final ruling on the matter, Harper was required to object to the use of the evidence to prove identity, and he did not do so, thus waiving his right to argue the issue on appeal.” Wright v. State, 313 Ga.App. 829, 723 S.E.2d 59 (January 31, 2012). Conviction for possession of cocaine with intent to distribute affirmed; defendant waived any objection to trial court’s failure to make findings regarding admissibility of similar transaction evidence, by failing to make those objections at trial. “‘The failure of a defendant to object to the introduction of similar transaction evidence on the basis that ... the trial court has not made the requisite findings as required by Uniform Superior Court Rule 31.3(B) and our Supreme Court's decision in Williams [ v. State, 261 Ga. 640, 642 (409 S.E.2d 649) (1991)] precludes appellate consideration of those issues.’ Cole v. State, 211 Ga.App. 236, 238 (438 S.E.2d 694) (1993) (citations and punctuation omitted); see Roberts v. State, 241 Ga.App. 259, 260(2) (526 S.E.2d 597) (1999) (issue of whether trial court erred by admitting similar transaction evidence because it failed to make a determination on the record of the purpose for which the evidence was being introduced was waived because appellant failed to object on the same basis below).” Whitehead v. State, 287 Ga. 242, 695 S.E.2d 255 (June 1, 2010). Defendant’s murder conviction affirmed; 1. trial court properly admitted similar transaction evidence: “the trial court did not abuse its discretion in deciding that Whitehead's firing his gun twice in a crowded nightclub was similar enough to his wildly firing his gun outside the recording studio nearby a few months earlier. The nightclub incident was probative of Whitehead's course of conduct of unlawfully possessing loaded firearms, despite his status as a convicted felon, and of firing those guns recklessly in public places in the presence of many other people.” 2. Overrules prior cases holding that defense must object at time of admission of similar transaction evidence at trial, even where same objection has been made and overruled in pre-trial hearing; as with objections to admission of confessions and rulings denying motions to suppress and motions in limine, pre-trial objection is sufficient. Overrules “ Dixon v. State, 285 Ga. 312, 317, 677 S.E.2d 76 (2009); Robinson v. State, 283 Ga. 546, 547, 661 S.E.2d 538 (2008); Young v. State, 269 Ga. 478, 479, 499 S.E.2d 60 (1998) … and other cases to the extent that they require a defendant to repeat an objection at trial to similar transaction evidence that was raised and overruled at a Rule 31.3(B) hearing.” Accord, Phillips v. State , 287 Ga. 560, 697 S.E.2d 818 (July 12, 2010). Distinguished, Harper, (January 28, 2015), above. Hardrick v. State, 300 Ga.App. 443, 685 S.E.2d 425 (October 13, 2009). Trial court properly admitted similar transaction evidence at defendant’s trial for cocaine possession. Defendant waived objections to trial court’s failure to make findings on record regarding “that the independent crime tended to prove the offense charged, that admission of the independent crime was more probative than prejudicial, and that the lapse of time between the two offenses was not too great … by failing to raise it before the trial court. Scott v. State, 243 Ga. 233, 234-235(2) (253 S.E.2d 698) (1979).” Accord, Butler v. State , 290 Ga. 425, 721 S.E.2d 889 (January 23, 2012) (objection to similar transaction evidence not raised pre-trial or at trial waived). Jones v. State, 254 Ga.App. 863, 564 S.E.2d 220 (April 11, 2002). OVERRULED, see below. “‘Even though [the defendant] objected to the introduction of the similar transaction evidence at the hearing conducted pursuant to Uniform Superior Court Rule 31.3(B), he was required to object ... at trial in order to preserve the issue on appeal.’ (Citation omitted.) Young v. State , 269 Ga. 478, 479(3), 499 S.E.2d 60 (1998).” See also Parrish v. State , 237 Ga.App. 274, 514 S.E.2d 458 (March 11, 1999); Jenkins v. State , 253 Ga.App. 8, 557 S.E.2d 470 (2001). Accord, Drake v. State , 274 Ga.App. 882, 619 S.E.2d 380 (August 3, 2005); accord, but criticized, Johnson v. State , 276 Ga.App. 505, 623 S.E.2d 706

Made with FlippingBook Ebook Creator