544 S.E.2d 208 | Ga. Ct. App. | 2001
A Liberty County jury found Roy Smith guilty of five counts of possession of a vehicle with an altered vehicle identification number (VIN). On appeal, Smith contends that the trial court erred in admitting a computerized printout in violation of the best evidence rule and in admitting evidence of his character. Smith also asserts that he received ineffective assistance of counsel. We find that Smith’s contentions lack merit and affirm.
The best evidence rule, or the “original document rule,” provides that “[i]n order to prove the terms of a writing, where the terms are material, the original writing must be produced unless it is shown to be unavailable for some reason other than the serious fault of the proponent.”
2. Smith also asserts that the trial court erred in admitting evidence of his character. The officer who arrested Smith testified that, at the time of the arrest, Smith had an outstanding warrant for aggravated assault. Smith objected to the officer’s testimony because he was not on trial for aggravated assault and such charge “had nothing to do with possession of a vehicle with an altered VIN.” Following this objection, the trial court instructed the jury that Smith
is not on trial for the offense of aggravated assault and you should not consider the fact that [the officer] had a warrant against him for the offense of aggravated assault. You should not consider that against him and use it against him adversely in any way whatsoever. [The officer] is simply explaining why [he] was looking for the defendant. And please disregard the fact that he was charged with aggravated assault.
After this instruction, Smith neither renewed his objection nor moved for a mistrial. Accordingly, he has waived the right to chal
3. In a related claim of error, Smith argues that his trial attorney was ineffective for failing to preserve the objection to this character evidence. To establish a claim of ineffective assistance, Smith
must show that his counsel’s performance was deficient and that the deficient performance prejudiced his defense. Prejudice exists where there is a reasonable probability the jury would have reached a different verdict, absent the error of counsel. We will affirm a trial court’s finding that counsel was effective unless it is clearly erroneous.5
In its order denying Smith’s motion for new trial, the trial court concluded that “the curative instructions were sufficient to remove any prejudice from the minds of the jurors.” Thus, the trial court rejected Smith’s claim that his attorney was ineffective on this basis. This Court has recognized that such curative instructions “can serve to prevent the alleged harmful testimony from having any prejudicial impact.”
Judgment affirmed.
Merrill Lynch &c. v. Zimmerman, 248 Ga. 580 (285 SE2d 181) (1981).
See Tipton v. State, 213 Ga. App. 764, 765 (2) (445 SE2d 860) (1994).
Henson v. State, 168 Ga. App. 210, 213 (3) (308 SE2d 555) (1983).
See Williams v. State, 244 Ga. App. 26, 27 (2) (535 SE2d 8) (2000).
(Punctuation and footnotes omitted.) Watson v. State, 243 Ga. App. 636, 637 (534 SE2d 636) (2000).
(Punctuation omitted.) Watts a State, 223 Ga. App. 412, 417 (3) (477 SE2d 852) (1996).