☢ test - Í

Brown v. State, 307 Ga.App. 99, 704 S.E.2d 227 (November 24, 2010). Convictions for cocaine trafficking and related offenses affirmed; trial court properly admitted “evidence of Brown's status as a probationer because the probation itself was part of the res gestae of his arrest, which was effected after a search conducted under a Fourth Amendment waiver he gave as a term of his probation. See Hampton [ v. State, 287 Ga.App. 896, 899(2) (652 S.E.2d 915) (2007)].” Lewis v. State, 287 Ga. 210, 695 S.E.2d 224 (May 17, 2010). Defendant’s convictions for murder and related offenses affirmed; testimony that defendant spoke to someone else who was incarcerated “did not necessarily imply that [defendant] too was in custody. Even if it did, a passing reference to a defendant's incarceration does not place his character in evidence. Isaac v. State, 269 Ga. 875(5) (505 S.E.2d 480) (1998).” Jackson v. State, 302 Ga.App. 412, 691 S.E.2d 553 (February 18, 2010). Defendant’s convictions for aggravated assault, aggravated battery and burglary reversed based on civilian witness’s references to defendant’s prior incarceration despite express instructions from court. Based on Sabel v. State , 250 Ga. 640, 643(5) (300 S.E.2d 663) (1983) (overruled on other grounds, Massey v. Meadows, 253 Ga. 389, 390 (321 S.E.2d 703) (1984)); discounting King v. State, 261 Ga. 534 (407 S.E.2d 733) (1991). Defendant argues that King established a per se rule that references to defendant’s prior incarceration by two different witnesses requires mistrial; Court of Appeals finds that subsequent case law has not so applied King , instead requiring analysis “‘includ[ing] the nature of the statement, the other evidence in the case, and the action taken by the court and counsel concerning the impropriety.’ Sable v. State, 250 Ga. at 644(5).” Statements: “in both instances the testimony, although not entirely unresponsive, was gratuitous and unnecessary to answer the questions posed. Further, we would not characterize this testimony as either ‘passing’ or oblique. Indeed, Wall twice mentioned Jackson's incarceration in consecutive sentences. And both witnesses testified clearly that Jackson was ‘incarcerated,’ using the same terminology and leaving no doubt of their meaning.” Circumstances: “both witnesses had been specifically instructed to avoid referring to Jackson's previous criminal history in any manner. Thus, this case is akin to those cases involving law enforcement officers ‘who should know better.’” Also, “the jury had to be instructed to disregard testimony by both victims using the same terminology; they had to be told to un-ring the bell not once, but twice. Surely a point is reached where curative instructions will be ineffective.” “Based on the foregoing, we conclude that Jackson's right to a fair trial was prejudiced by improper testimony concerning his prior incarceration.” Morgan v. State, 303 Ga.App. 358, 693 S.E.2d 504 (January 25, 2010). At defendant’s trial for kidnapping, aggravated assault, and related offenses committed against his girlfriend, trial court properly denied motion for mistrial after defense counsel elicited reference to defendant’s incarceration from State’s witness. “Because ‘defense counsel may not take chances propounding questions which may elicit damaging answers and then demand reversal on appeal, we find no reversible error.’ Hutson v. State, 216 Ga.App. 100, 102(5) (453 S.E.2d 130) (1995).” Green v. State, 300 Ga.App. 383, 685 S.E.2d 371 (October 7, 2009). At trial for possession of methamphetamine, no error in admitting testimony explaining that line-up pictures were chosen from “guys that … are in jail or got out [of jail] or “people who have been arrested throughout the years.” “The Supreme Court of Georgia has held that testimony explaining the process of using ‘jail’ or ‘arrest’ photographs to create a lineup is insufficient to place a defendant's character at issue. Taylor v. State, 272 Ga. 559, 561(2)(b), (c), 532 S.E.2d 395 (2000).” Conviction reversed based on insufficient evidence of constructive possession, however. Hampton v. State, 300 Ga.App. 49, 684 S.E.2d 118 (September 9, 2009). Defendant’s convictions for cocaine trafficking and related offenses reversed; trial court erred in admitting defendant’s “response to the officer's question whether he was on probation or parole. Hampton responded that he was on probation for cocaine.” Based on Robinson v. State , 192 Ga.App. 32, 383 S.E.2d 593 (1989). “In Robinson, appellant's statement to police included a reference to his prior use and sale of cocaine. Id. We held that these statements ‘did not constitute an integral part of a criminal confession nor was each statement an inseparable part of the total oral statement.’ Id. We noted that Robinson's confession that he had used cocaine in the past ‘had nothing whatsoever to do with the conduct for which he was on trial.... Indeed, the statement cannot be construed as anything other than a denial of the offenses for which he was on trial. Thus, the only possible evidentiary function which the confession concerning prior cocaine use could have served as far as the state was concerned was an impermissible one, i.e., to impugn the appellant's character before the jury by showing that he was generally prone to criminal conduct.’ (Citation and punctuation omitted.) Id. at 34.” “Hampton's statement presents the same circumstances. His probation for an unspecified prior offense involving cocaine had no bearing on his guilt or innocence of the offense charged, particularly in the absence of any motion by the State to introduce it as a similar transaction. Id. at 34. Moreover, Hampton vigorously denied guilt or any knowledge of the drugs or money found in the car, and made no other statement to the police.”