Suits v. StateSuits v. State
- Reporters:
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- Before:
- Quillian
The defendant appeals his conviction for receiving stolen property. Held:
1. During opening argument, counsel for the defendant stated: “In a separate incident, [the defendant] did purchase certain items from the people who are named [in the present indictment], and later found out that they were stolen.” Appellate counsel for the defendant enumerates as error the allegation that the defendant “was not afforded the effective assistance of [trial] counsel with respect to the deliberate injection of ‘other crime’ evidence which was not proffered by [the State].” We do not agree.
“In Pitts v. Glass,
231 Ga. 638 (203 SE2d 515) (1974), [the Supreme Court] adopted the standard for determining the effectiveness of counsel as enunciated in MacKenna v. Ellis, 280 F2d 592 (5th Cir. 1960). MacKenna, supra, recognized the constitutional right to assistance of counsel as meaning ‘not errorless counsel,
The trial court held a hearing on this issue and counsel for the defendant testified that during his investigation, and questioning of police officials he became aware that “the State might offer proof of other crimes or incidents that would show motive, intent, or scheme ...” He stated that this became a part of his “trial strategy.” It was his opinion that evidence of the defendant’s plea of guilty to and conviction of five counts of receiving stolen property from the same individuals he was charged with receiving stolen property from in the instant case would be admissible to show “motive, or
It is clearly evident that this was trial strategy and the decision was made by the trial counsel after consultation with the defendant. We find no error. “Our review of the evidence . . . reveals that the finding of the trial judge that [defendant’s] contention of ineffectiveness of counsel is without merit is supported by evidence in the transcript of the original trial and the [effectiveness] hearing.” Allen v. Hopper, 234 Ga. 642, 643 (217 SE2d 156).
2. The defendant testified that he did not purchase any property from the state’s witnesses on the dates indicated in the indictment but did purchase other items at an earlier date which he later found out were stolen. The state’s witnesses testified that they stole the property and sold it to the defendant. Thus, there were two issues: (1) did the defendant purchase the stolen property, and if he did (2) did he know it was stolen? In
Bremer v. State,
148 Ga. App. 461, 467, supra, this court stated: “In theft by receiving cases it has long been held that all transactions between the receiver and seller are relevant to illustrate the receiver’s knowledge.
Saunders v. State,
145 Ga. App. 248, 249, supra.” The evidence objected to dealt with the sale of furnace blowers stolen from a mobile
3. Error is alleged in the failure of the trial court to instruct, sua sponte, on the limited purpose of admissibility of specified evidence. In Thomas v. State, 234 Ga. 615, 618 (216 SE2d 859), our Supreme Court held: ” ‘While present law exempts the defendant in a criminal case from the strict requirements imposed on litigants in civil cases to preserve an issue on the giving of or the failure to give instructions to the jury [cit.] this does not relieve him from the necessity of requesting instructions, or making timely objection in the trial court on the failure to give instructions, except in those circumstances where the omission is clearly harmful and erroneous as a matter of law in that it fails to provide the jury with the proper guidelines for determining guilt or innocence’... Thus ... where a criminal defendant fails to request a charge, or fails to object to the trial court’s omission to charge, such failure to request or object has been decisive against him.” (Emphasis supplied.)
Further, the Supreme Court has repeatedly stated: “It is well recognized that when evidence is admitted for one purpose, as it was in the instant case, it is not error for the court to fail to instruct the jury to limit its consideration to the one purpose for which it is admissible, in the absence of a request to so instruct the jury. Patterson v. State, 233 Ga. 724 (6) (213 SE2d 612) (1975); Ivy v. State, 220 Ga. 699 (4) (141 SE2d 541) (1965). [Cit.]” Harrell v. State, 241 Ga. 181, 186 (243 SE2d 890). This enumeration is meritless.
4. For the reasons stated in Divisions 1, 2, and 3 above it was not error to deny the motion for new trial based upon the errors enumerated in those divisions.
5. Defendant contends “the cumulative effect of the errors complained of herein deprived [defendant] of a fair
Judgment affirmed.
Smith and Birdsong, JJ., concur.