In 1995, a Cobb County jury found Gregory Allen Martin guilty of sale of cocaine, possession of cocaine with intent to distribute, and giving a false name. After what appears to be a convoluted series of attempts to obtain post-conviction relief, Martin’s motion for out-of-time appeal to this Court was granted. Now, he alleges two errors of law require reversal. Upon review of the errors as enumerated, we affirm Martin’s conviction.
1. Martin first assigns error to the trial court’s admission of two Georgia Bureau of Investigation crime laboratory reports without calling the laboratory analysts to testify. Citing Miller v. State,
Had [Martin] objected at the hearing to the admission of the lab report[s] we could agree. At [trial], however, [Martin] specifically and expressly stipulated to [their] admission. Objections not raised at trial cannot be raised for the first time on appeal, as they are deemed waived. [Martin] therefore waived any objection to the admission of the lab report [s],2
In that regard, Martin contends that his defense attorney’s stipulation fails because, while the record shows that such stipulation of fact was expressly made, the record does not contain Martin’s personal waiver of his Sixth Amendment confrontation rights as to the stipulated facts. We do not agree.
Generally, a statement by defense counsel made in the presence of the defendant relating to the defendant’s conduct is considered a statement by the defendant himself if the defendant does not repudiate counsel’s authority to make the statement. The general rule as to stipulations is that once made in the course of judicial proceedings an estoppel results unless the complaining party can show fraud or mistake.3
Finally, Martin’s defense at trial was that he was guilty of smoking cocaine, not selling it or possessing it with intent to distribute, and that he was an addict who needed help, not prosecution and incarceration. In that regard, Martin took the stand and admitted to the jury that the substance in the 17 small ziplock baggies removed from his person pursuant to arrest was in fact crack cocaine. The crime lab reports were simply cumulative of Martin’s sworn testimony.
Moreover, contrary to Martin’s contentions, such solemn admissions in judicio are clearly distinguishable from facts ascertained only through a defendant’s out-of-court and unsworn confession to the police. Thus, Martin’s reliance on pre-trial confession cases is misplaced in this instance where he took the stand, swore an oath, and testified that the substance at issue was cocaine.
2. In his final enumeration of error, Martin contends the trial court erréd in refusing to give his defense request to charge no. 3,-which informed the jury that, if they returned a verdict of guilt on sale or possession with intent to distribute, Martin could face mandatory life imprisonment as a recidivist. However, after the trial court asked whether the parties had any exceptions to the charge, Martin’s counsel responded, “No, Your Honor.” “The right to raise an erroneous charge on appeal may be lost only in certain well-defined instances,.. . . [as] where defense counsel in response to an inquiry by the trial judge plainly states that he has no objections to the charge as given.”
Further, the essence of Martin’s argument is that the jury should have been permitted to decide the issue of guilt not on the basis of the factual evidence presented, but on the punishment Martin might receive, i.e., purely on the basis of sympathy. We find no merit to this argument. While the jury does possess a de facto power
Judgment affirmed.
Notes
(Citations and punctuation omitted.) In the Interest of D. L. S.,
Dryer v. State,
Id. at 673.
Compare Johnson v. State,
(Citation omitted.) Lumpkin v. State,
Tolver v. State,
Cargill v. State,