Davis v. State
209 Ga. App. 572
Ga. Ct. App.
1993
Check Treatment

DAVIS v. THE STATE

A93A0257

Court of Appeals of Georgia

JULY 16, 1993

209 Ga. App. 572 | 434 SE2d 132

POPE, Chief Judge

specific.”

Suсh a financing contingency is for the benefit and protection of the purchaser. . Its provisions may be waived and such waiver would “not provide a basis for the vendor to renege on the real estate sales contract” to the detriment of the broker. . The triаl court apparently concluded that the breadth of the finance options indicated a lack of that mutuality required for a binding contract. This is clearly erroneous. Under Georgia law the purchasers have an implied duty to exercise due diligence аnd good faith in seeking to have the financing contingency take place. Because of this implied duty, a contract for the sale of real property which is conditioned upon the purchaser‘s ability to obtain a loan is not unenforceable for lаck of mutuality of obligation. . Moreover, the broker does not seek specific performance of this financing contingency, but only claims a right to real estate sales commissions allegedly due after a sale of the specific lot named in the August 3, 1990 sales agreement was actually completed by the same buyers at the same sales price. The judgment in favor of RPI is based upon an erroneous legal theory and must be reversed. .

3. As Don Hairston, Sr., was never personally served with process, despite leave of court to do so, there is nothing for this court to affirm or reverse. The judgment entered below does not reach him.

Judgment affirmed in part and reversed in part. Blackburn, J., concurs. Johnson, J., concurs in the judgment only.

DECIDED JULY 16, 1993.

Charles P. Giallanza, for appellant.

Garner & Still, Dennis T. Still, for appellees.

POPE, Chief Judge.

Defendant Michael Davis was convicted by a jury of possession of heroin with intent to distribute. He appeals the denial of his motion for new trial.

1. Relying on and , defendant argues the trial court erred by allowing the State to introduce into evidence certified copies of guilty pleas he entered on previous drug charges becausе the State failed to establish, upon objection ‍‌‌‌‌​​​‌​‌‌‌​‌​​‌‌‌​‌‌‌​‌​​‌​‌‌‌‌‌​‌​​​​​​​​​​​‌‍by the defendant, that defendant‘s pleas were freely and voluntarily given. Defendant acknowledges, however, that this court previously has “reject[ed] defendant‘s argument that the requirements of Pope and Gadson should be extended to include any instance where the State intends to use a prior guilty plea in a criminal prosecution. The holdings of Pope and Gadson specifically apply to the State‘s introduction of a prior guilty plea during the sentencing portion of a criminal prosecution, and we will nоt extend the holdings in the manner suggested by defendant. It is well settled that in order for similar crime evidence to be admissible there must be ‘some evidence establishing that the independent crime was committed by the defendant. The evidence may be circumstantial but it must be more thаn mere speculation. (Cits.)’ (Emphasis supplied.) .” . Moreover, in this case, as in McCann, there was evidence in addition to the certified copies of the guilty pleas establishing that the defendant was the perpetrator of the prior offenses.1 Consequently, this enumeration is without merit.

2. Defendant also contends the trial court erred by аllowing the arresting officer to testify that the quantity of drugs in defendant‘s possession at the time of his arrest was more than a person would possess for personal consumption, arguing that such testimony impermissibly invades the province of the jury on the ultimate issue to be decided in this case, to wit, whether defendant committed the crime of possession of heroin with intent to distribute. In this court held that “knowledge of the amount of crack cocaine one would generally possess for personal use or the amount which might evidence distributiоn is not necessarily within the scope of the ordinary layman‘s knowledge and experience,” , and that, therefore, expert opinion testimony is admissible on this issue under OCGA § 24-9-67. However, in this case, unlike in Davis where the witness was qualified as an expert “on the ‘uses and activities of drugs on the street . . . ,‘” , the trial court refused the State‘s request to qualify the witness as an expert in “narcotics investigation,” and the State did not otherwise attempt to lay a foundation which ‍‌‌‌‌​​​‌​‌‌‌​‌​​‌‌‌​‌‌‌​‌​​‌​‌‌‌‌‌​‌​​​​​​​​​​​‌‍would demonstrate that the witness was qualified to testify in the manner allowed. The trial court thus erred in overruling defendant‘s objection to the officer‘s testi-mony, and defendant‘s conviction must be reversed.

The dissent argues that the trial court, by allowing the complained-of testimony over defendant‘s objection, “implicitly” ruled that the witness was qualified as an expert. However, there is absolutely nothing in the record to support such а conclusion. As the dissent acknowledges, when the State initially sought to qualify the witness as an expert the defendant objected on grounds of relevancy and that the State had failed to lay a sufficient foundation as to the witness’ qualifications. The trial court sustained thе objection without specifying the basis for its ruling, and this court can only speculate or guess if the court sustained the objection based on lack of relevancy, insufficient foundation or both. All we know from the record is that the court refused the State‘s tender of the witnеss as an expert, and that the trial court never stated or otherwise indicated a retreat from that ruling.

Moreover, even assuming, as the dissent finds, that the record establishes the officer‘s qualifications as an expert in narcotics investigation, there is absolutely nothing in the record which demonstrates that the witness was qualified to testify as an expert on drug use. To the contrary, the record shows that before moving to have the witness qualified as an expert in “narcotics investigation” the State merely elicited the fact that the оfficer attended bi-monthly training sessions, consisting of formal classes and hands-on training, encompassing team deployment and tactical tasks. Before stating his objections to the witness’ qualifications, the defendant requested to voir dire the witness, who testified as follows аs to his training as a drug squad officer: “We update ourselves on the basic laws of drugs and we train ourselves, you know, twice a month and stuff. We just go out, like somebody from the academy might come out and give us update classes and stuff [where] they update us on drugs and the different wаys that drugs are being distributed throughout the state and the streets and stuff, . . . , the national laws and stuff, . . . , the overall picture of drugs itself, because drugs are constantly changing everyday, things are different. We find out new stuff everyday about how drugs are stored or hidden. . . .” This testimony clearly establishes that the officer‘s training, such as it was, was fairly limited in scope and that it did not relate to “the ‘use[ ] . . . of drugs on the street.‘” .

Lastly, the dissent finds that defendant waived this issue on appeal because none of the stated objections to the testimony at trial went to the officer‘s quаlifications as an expert. However, as noted by the dissent, the defendant objected, inter alia, on the basis that “[t]he officer is in no position to make a statement like that.” This objection clearly raised the officer‘s qualifications to answer the question posed.

3. In light of our holding in Division 2, it is unnecessary for us to address defendant‘s remaining enumerations of error.

Judgment reversed. McMurray, P. J., Birdsong, P. J., Cooper, Blackburn and Smith, JJ., concur. Beasley, P. J., and Andrews, J., dissent. Johnson, J., not participating.

ANDREWS, Judge, dissenting.

I respectfully dissent. The trial court did not err by overruling the defendant‘s objection to the officer‘s expert opinion testimony that ten “hits” of heroin found on the defendant‘s person was more than a heroin user would carry for personal consumption.

The State‘s first witness was a City of Atlanta police officer, who had been assigned to the “Red Dog” anti-drug squad for over two yеars. The officer testified that during this assignment he had received formal training in drug law enforcement as well as hands-on tactical experience in narcotics investigation. Based on this testimony, which was the only evidence introduced by the State at the time, the State moved the trial judge to qualify the officer as an expert in narcotics investigation. After being allowed, upon request, to cross-examine the witness, defense counsel objected to the motion on grounds that the State had not shown any expert testimony from the оfficer was relevant, and there was not a sufficient foundation. The trial court sustained the objection. The majority concludes that by sustaining this objection the trial judge ruled the officer was not qualified to give expert testimony regarding narcotics investigations. Accоrdingly, when the trial judge, over defense objection, subsequently allowed the officer to give his expert opinion about the quantity of heroin on the defendant‘s person, the majority found reversible error.

I find no contradiction between the trial judge‘s initial refusal to formаlly qualify the officer as an expert, and the judge‘s subsequent ruling admitting the officer‘s expert opinion testimony. When the State moved for the trial judge to explicitly recognize ‍‌‌‌‌​​​‌​‌‌‌​‌​​‌‌‌​‌‌‌​‌​​‌​‌‌‌‌‌​‌​​​​​​​​​​​‌‍the officer as an expert, there was no other evidence in the record, and the Stаte offered no explanation, by proffer or otherwise, to show the nature of the expert testimony it sought to introduce, and its relevance to an issue before the court. Under OCGA § 24-9-67, “[t]he opinions of experts on any question of science, skill, trade, or like quеstions shall always be admissible; and such opinions may be given on the facts as proved by other witnesses.” (Emphasis supplied.) “An expert witness is one who through education, training, or experience has peculiar knowledge concerning some matter of science or skill to which his testimony relates.” (Emphasis supplied.) . This means not only must the witness tendered as an expert be qualified by education, training, or experience to render an opinion within the scope of a particular expertise, but the expert testimony sоught to be intro-duced through the witness must be relevant to an issue in the case. If there is no relevant expert testimony to be given, there is no reason to recognize the witness as an expert regardless of how qualified he or she may be. See (trial court properly sustained objection that expert testimony was not relevant to the issues at trial); (objection to offer irrelevant expert testimony properly sustained); (trial court erred by admitting irrelevant expert testimony).2

The trial judge did not rule the officer was not qualified as an expert in narcotics investigations, rather the court sustained the defense objection that the State had not shown the relevance of any expert opinion it sought to introduce through the witness. Since expert opinion testimony, like any other evidence, must be relevant to an issue in the case to be admissible, it was within the judge‘s discretion to refuse to formally recognize the witness’ qualifications as an expert until the State demonstrated the relevance of such qualification. In this case, the State subsequently demonstrated relevance by offering the officer‘s expert opinion on the quantity of heroin on the defendant‘s person, at which time the trial judge overruled defense objections to the expert testimony. The trial judge was not required to make any specific ruling that the officer was an expert prior to ruling on the admissibility of the expert opinion testimony. . Since the record otherwise establishes the officer‘s expert qualifications, the trial judge‘s overruling of defense objections ‍‌‌‌‌​​​‌​‌‌‌​‌​​‌‌‌​‌‌‌​‌​​‌​‌‌‌‌‌​‌​​​​​​​​​​​‌‍to the expert opinion testimony was an implicit ruling that the court recognized the officer to be qualified as an expert. .

The defense objected to admission of the expert opinion on grounds that: (1) “[t]he officer is in no position to make a statement like that“; (2) “[it‘s] not relevant,” and (3) “that‘s up to the jury to decide.” The trial court properly exercised its discretion to determine that the officer was qualified as an expert, overruled the objection, and admitted the expert testimony. See . On appeal, the defendant argues that the trial court erred by admitting this testimony on an ultimate issue in the case which invaded the province of the jury. “The issue is not whether the opinion would invade the province of the jury, but whether the subject is a proper one for opinion testimony. Expert opinion testimony on issues to be decided by the jury, even the ultimate issue, is admissible where the conclusion of the expert is one which jurors would not ordinarily be able to draw for themselves; i.e., the conclusion is beyond the ken of the layman.” (Citations and punctuation omitted.) . Moreover, when the expert opinion testimony was offered, it does not appear that any of the grounds for objection went to the qualifications of the officer as an expert, so that issue was waived on appeal. .

There being no reversible error, the judgment of conviction should be affirmed.

DECIDED JULY 16, 1993.

David L. Whitman, for appellant.

Lewis R. Slaton, District Attorney, Anita Wallace, Nancy A. Grace, Assistant District Attorneys, for appellee.

Notes

1
The officers who arrested defendant for the prior offenses both testified at trial and identified defendant as the perpetrator of those crimes.
2
Under most circumstances, the bеtter practice would be to rule whether the witness is an expert only in response to a specific objection that the witness is not qualified to give the opinion sought ‍‌‌‌‌​​​‌​‌‌‌​‌​​‌‌‌​‌‌‌​‌​​‌​‌‌‌‌‌​‌​​​​​​​​​​​‌‍in a specific question. Otherwise, generally labeling a witness as an “expert” may give improper credence to his testimony. All of this, however, lies in the sound discretion of the trial judge.