The defendant, Jerry Scott, appeals his conviction for voluntary manslaughter. Scott, the victim, S. L. Mitchell, and several other people were in a house in Athens, Georgia, playing cards. Scott lost all of his money to Mitchell. An argument developed about the way Mitchell was cutting the cards. Scott testified that Mitchell “started up on me with a knife . . . and I act like I had a gun in my pocket . . . and he stopped . . . And he said well I’ll show you then.” The victim left and went to his car and “I went and got my gun [‘a .25 automatic pistol’].” He saw Mitchell reach under the front seat of his car “and I said hold it man. He tried to stop me. He was going to shoot me. And I started shooting.” The autopsy showed that Mitchell had been shot in the left lower back and the bullet had gone behind the heart and ruptured the aorta. Death resulted within a few minutes. A search of the victim’s body revealed a knife, but a search of the car did not show that it contained a weapon. Scott left the scene and drove to Atlanta. A few days later he returned to his brother’s home. As a result of a tip the Clarke County police obtained an arrest warrant and went to his brother’s home to search a mobile home on the grounds.
The police asked a lady at that address if she had seen Scott. She said no. They spoke to Scott’s brother, James. He said that Scott was not in the mobile home. The officers went in to search the mobile home, with James. The back room was dark. They asked James to go into the room first and turn on the light. “And as he went in the door he yelled, [‘]don’t do it, don’t do it.[’]” James grabbed the defendant and spun him around, then “something that sounded like a bump that hit the wall, hit the floor or something.” The officers arrested the defendant and then searched the room. They found a .25 caliber automatic pistol with a clip in it, the safety was off, a round was in the chamber and the hammer was cocked. Held:
1. Defendant contends the admission of the statement by his brother, just prior to his arrest, was error. We do not agree. The court overruled the objection to the admissibility of the words on the ground that they explained the subsequent conduct of the officer. We *726 find the testimony admissible, but not on the basis of evidence to explain conduct.
OCGA § 24-3-2 provides that “in a legal investigation, information, conversations, letters and replies, and similar evidence are facts to explain conduct and ascertain motives, [and] they shall be admitted in evidence not as hearsay but as original evidence.” Our Supreme Court interpreted the predecessor statute to OCGA § 24-3-2, Code Ann. § 38-302, in
Momon v. State,
The evidence as to the brother’s remark and the discovery of the pistol, including the defendant’s trip to Atlanta and his hiding in the mobile home, shows flight, concealment, and armed resistance to apprehension. The brother’s statement was part of the res gestae of the arrest, and “ ‘evidence as to the time when and the place where arrested, the manner of the arrest, how the accused was armed, and whether he resisted, and all the circumstances connected with the arrest, are proper matters to be submitted to the jury to be weighed by them for what they are worth.’ ”
Henderson v. State,
2. Admission in evidence of a specific statement contained in a letter found on the defendant at the time of his arrest is enumerated as error. The letter contained substantially the same self-defense version of the shooting of the victim as the statement of the defendant to the police. However, it included a statement that “ . . . I’m not going back to prison.” Defendant’s counsel contends (1) this statement tends to show the accused committed another criminal act, (2) it was not relevant to any issue in this case, and (3) its prejudicial impact outweighed its relevance.
It is not a valid ground of objection to admission of an incrimina
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tory statement of an accused that it includes language that the accused had committed another and separate offense.
Ledford v. State,
3. The third assignment of error is too general for this Court to pinpoint the specific ground. It states that it was error “to allow testimony of the victim’s family which was without probative value” and this testimony prejudiced and inflamed the jury. In the brief counsel argues that the victim’s father testified how he taught the victim to lay brick and do woodwork, what college the victim went to, what work the victim specialized in, how the victim’s father heard the victim was killed, what he did when he found out, the victim’s family, the victim’s nickname, what the police gave him that was recovered from his son’s body, and finally that the victim’s mother could not look at the victim’s car. This listing of the testimony of the mother and father of the victim continues in the brief. However, examination of the record shows that no objection was made at trial. Two objections were made to similar testimony, and both were sustained. This is a court for review of errors committed by the trial court where proper objection is made, and counsel may not abandon these issues in the trial court and raise them for the first time in his brief on appeal.
Patterson v. State,
4. Counsel complains of the denial of his motion for a directed verdict of acquittal. We find the evidence sufficient to enable any rational trier of fact to find the existence of the offense charged beyond reasonable doubt. Jackson v. Virginia,
5. Defendant was indicted on one count of murder and three counts of recidivism. Defendant filed a motion to strike the recidivist counts. The State filed a notice not to seek the death penalty. The
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trial court denied the motion to strike. We find no error. We agree with counsel that the recidivist statute, OCGA § 17-10-7 (b), is not applicable to “a capital felony.”
Chappell v. State,
Our Code authorizes the imposition of the death penalty for armed robbery (OCGA § 16-8-41 (b)), rape (OCGA § 16-6-1 (b)), and murder (OCGA § 16-5-1 (d)). However, the Supreme Court in
Collins v. State,
6. Counsel raises for the first time on appeal the constitutional argument that “the crime of voluntary manslaughter denies defendant equal protection of the law.” We have found no place within the trial transcript or record where this issue was raised before the trial court, nor has counsel directed our attention to where such objection and ruling may be found. Our Supreme Court has held that “[i]t is well settled that the court will not pass upon the constitutionality of a statute when the question has not been raised at the trial level.
Alexander v. State,
Judgment affirmed.