Tolver v. State, 500 S.E.2d 563 (Ga. 1998). · Go Syfert
Tolver v. State, 500 S.E.2d 563 (Ga. 1998). Cases Citing This Book View Copy Cite
120 citation events (83 in the last 25 years) across 5 distinct courts.
Strongest positive: Hurt v. State (ga, 2015-11-02)
Treatment trajectory · 1998 → 2026 · click a year to view as-of
1998 2012 2026
Top citers, strongest first. 34 distinct citers. How cited ↗
discussed Cited as authority (rule) Hurt v. State
Ga. · 2015 · confidence medium
Further, objections must be made “with specificity to enable the trial court to intelligently rule on the objection and to create a clear record for the appellate court.” Tolver v. State, 269 Ga. 530, 532 (2) ( 500 SE2d 563 ) (1998).
discussed Cited as authority (rule) Kilgore v. State
Ga. · 2014 · confidence medium
And if a party believed that a foundation had not been established sufficiently, he was required to “specify the foundational element he contends is lacking.” Tolver v. State, 269 Ga. 530, 532 (2) ( 500 SE2d 563 ) (1998).
discussed Cited as authority (rule) James Raymond v. State (2×)
Ga. Ct. App. · 2013 · confidence medium
Tolver v. State, 269 Ga. 530, 532 (2) ( 500 SE2d 563 ) (1998); Potter v. State, 301 Ga. App. 411, 414-415 (2) ( 687 SE2d 653 ) (2009).
discussed Cited as authority (rule) Raymond v. State (2×)
Ga. Ct. App. · 2013 · confidence medium
Tolver v. State, 269 Ga. 530, 532 (2) ( 500 SE2d 563 ) (1998); Potter v. State, 301 Ga. App. 411, 414-415 (2) ( 687 SE2d 653 ) (2009).
discussed Cited as authority (rule) State v. Danielson
S.D. · 2012 · confidence medium
Furthermore, we recognize that “[t]he objection of ‘lack of foundation’ has no single defined meaning, and an objection of ‘lack of foundation’ generally is of little or no use to a trial judge.” Rogen, 2000 S.D. 51 , ¶ 15, 609 N.W.2d at 459 (quoting Tolver v. State, 269 Ga. 530 , 500 S.E.2d 563, 565 (1998)). [¶ 29.] Here, Danielson did not challenge the relevancy of the used transmission parts at the lower court level.
cited Cited as authority (rule) Williams v. State
Ga. · 2010 · confidence medium
Tolver, supra at 533 (4). 3.
discussed Cited as authority (rule) Potter v. State
Ga. Ct. App. · 2009 · confidence medium
Johnson, P. J., and Ellington, J., concur. 1 OCGA § 40-6-393 (a). 2 OCGA § 40-6-394. 3 OCGA § 40-6-391 (a) (1) (DUI less safe), (a) (5) (per se DUI). 4 See Merritt v. State, 288 Ga. App. 89, 91 (1) ( 653 SE2d 368 ) (2007). 5 See OCGA § 40-1-1 (1): “ ‘Alcohol concentration’ means grams of alcohol per 100 milliliters of blood or grams of alcohol per 210 liters of breath.” 6 Smith v. State, 291 Ga. App. 353, 355 (3) ( 662 SE2d 176 ) (2008). 7 (Citations and punctuation omitted.) Hurst v. State, 285 Ga. 294, 296 (2) ( 676 SE2d 165 ) (2009), citing Cunningham v. State, 255 Ga. 35, 38 (5…
discussed Cited as authority (rule) Daniel v. State
Ga. Ct. App. · 2009 · confidence medium
But Daniel did not object on these grounds, and “a party making an objection for lack of foundation must specify the foundational element he contends is lacking.” Tolver v. State, 269 Ga. 530, 532 (2) ( 500 SE2d 563 ) (1998).
examined Cited as authority (rule) Holloway v. State (3×) also: Cited "see, e.g."
Ga. Ct. App. · 2007 · confidence medium
Cf. OCGA § 24-4-48 (b) ("Subject to any other valid obj ection,... videotapes... shall be admissible in evidence when necessitated by the unavailability of a witness who can provide personal authentication and when the court determines, based on competent evidence presented to the court, that such items tend to show reliably the fact or facts for which the items are offered.”); Tolver, 269 Ga. at 532 (3); Wallace, 267 Ga. App. at 803-804 (1); Ross, 262 Ga. App. at 326-328 (4).
cited Cited as authority (rule) Warner v. State
Ga. · 2007 · confidence medium
Tolver v. State, 269 Ga. 530, 532 (2) ( 500 SE2d 563 ) (1998).
cited Cited as authority (rule) Ross v. State
Ga. Ct. App. · 2003 · confidence medium
Phagan v. State, supra; Tolver v. State, 269 Ga. 530, 531 (3) ( 500 SE2d 563 ) (1998).
cited Cited as authority (rule) Jackson v. State
Ga. Ct. App. · 2003 · confidence medium
Tolver v. State, 269 Ga. 530, 533 (5) ( 500 SE2d 563 ) (1998).
cited Cited as authority (rule) Wilson v. State
Ga. Ct. App. · 2002 · confidence medium
Tolver v. State, 269 Ga. 530, 532 (2) ( 500 SE2d 563 ) (1998).
examined Cited as authority (rule) State v. Long (4×)
Haw. · 2002 · confidence medium
Ct.App.2000) ("[T]he objection `lack of foundation,' like its first cousin `improper predicate,' is not a `specific ground of objection' within the meaning of section 90.104(1)(a) [requiring that an objecting party `stat[e] the specific ground of objection if the specific ground was not apparent from the context']." (Internal quotation marks and citation omitted.)); Rogen v. Monson, 609 N.W.2d 456, 459 (S.D.2000) ("The objection of `lack of foundation' has no single defined meaning" and amounts to a "general objection[.]" (Internal quotation marks and citation omitted.)); Tolver v. State, 269 …
discussed Cited as authority (rule) Scott v. State
Ga. Ct. App. · 2002 · confidence medium
Smith, P. J., and Ellington, J., concur. 1 204 Ga. App. 491 ( 420 SE2d 43 ) (1992). 2 Jackson v. State, 252 Ga. App. 16 -17 (2) ( 555 SE2d 240 ) (2001). 3 Tolver v. State, 269 Ga. 530, 533 (5) ( 500 SE2d 563 ) (1998); Leggon v. State, 249 Ga. App. 467, 468 (2) ( 549 SE2d 137 ) (2001). 4 OCGA § 24-4-8; Barber v. State, 235 Ga. App. 170 ( 509 SE2d 93 ) (1998). 5 Kovacs v. State, 227 Ga. App. 870 (1) ( 490 SE2d 539 ) (1997). 6 OCGA § 40-6-72 (b). 7 Jackson v. Virginia, 443 U. S. 307 (99 SC 2781, 61 LE2d 560) (1979). 8 No person “shall drive any motor vehicle upon a highway in this state unles…
cited Cited as authority (rule) Chandler v. State
Ga. Ct. App. · 2002 · confidence medium
Tolver v. State, 269 Ga. 530, 532 (2) ( 500 SE2d 563 ) (1998).
discussed Cited as authority (rule) Wade v. State
Ga. · 2002 · confidence medium
On September 3, 2001, the appeal was submitted for decision on briefs. 2 Jackson v. Virginia, 443 U. S. 307 (99 SC 2781, 61 LE2d 560) (1979). 3 See Gardner v. State, 273 Ga. 809, 811-812 ( 546 SE2d 490 ) (2001). 4 Harvey v. State, 274 Ga. 350, 351-352 ( 554 SE2d 148 ) (2001). 5 Tolver v. State, 269 Ga. 530, 532 ( 500 SE2d 563 ) (1998). 6 See Tolver, 269 Ga. at 532 ; OCGA § 24-4-48 (c). 7 The first trial ended when the trial court granted a motion for mistrial made by Wade on the ground that a witness had improperly placed his character into evidence. 8 Walton v. State, 272 Ga. 73, 74 ( 526 SE…
discussed Cited as authority (rule) Worthy v. State
Ga. Ct. App. · 2001 · confidence medium
Johnson, P. J., and Ellington, J., concur. 1 Tolbert v. State, 227 Ga. App. 647, 648 ( 490 SE2d 183 ) (1997). 2 Tolver v. State, 269 Ga. 530, 532 (2) ( 500 SE2d 563 ) (1998). 3 Id. 4 See Pless v. State, 247 Ga. App. 786, 787 (2) ( 545 SE2d 340 ) (2001) (quantum of evidence necessary to meet foundational requirements for admission of photograph “is a matter within the sound discretion of the trial court”). 5 See Matheson v. State, 249 Ga. App. 200, 201 (1) ( 547 SE2d 774 ) (2001). 6 See Jackson v. State, 228 Ga. App. 877, 878 (1) ( 492 SE2d 897 ) (1997); cf. Tolbert, supra at 647-648 (evide…
cited Cited as authority (rule) Holmes v. State
Ga. · 2001 · confidence medium
Therefore, [Holmes] cannot be deemed to have waived the right to raise his objection on appeal.” Tolver v. State, 269 Ga. 530, 533 (5) ( 500 SE2d 563 ) (1998).
discussed Cited as authority (rule) King v. State (2×)
Ga. · 2000 · confidence medium
Tolver v. State, 269 Ga. 530, 532-533 (4), 500 S.E.2d 563 (1998) (recognizing trial court's discretion in considering a motion for a change of venue).
discussed Cited as authority (rule) Wade v. State
Ga. Ct. App. · 2000 · confidence medium
Tolver v. State, 269 Ga. 530, 533 (5) ( 500 SE2d 563 ) (1998). (b) Regardless of the prosecutor’s comment to the court that the State was proceeding only under the mental cruelty portion of the indictment, the physical cruelty allegation was not deleted and the State presented evidence of physical cruelty.
examined Cited as authority (rule) Gissendaner v. State (5×) also: Cited "see"
Ga. · 2000 · confidence medium
Tolver v. State, 269 Ga. 530, 532-533 (4), 500 S.E.2d 563 (1998) (recognizing trial court's discretion in considering a motion for a change of venue).
examined Cited as authority (rule) Rogen v. Monson (4×) also: Cited "see"
S.D. · 2000 · confidence medium
We have previously stated, to insure a meaningful appellate review, the trial court must be allowed to rule "whether or not the subject of [the] expert's opinion rested on a reliable foundation." See Kuper, 1996 SD 145, ¶ 41 , 557 N.W.2d at 760 . [¶ 15.] The objection of "`lack of foundation' has no single defined meaning, [and] an objection of `lack of foundation' generally is of little or no use to a trial judge." Tolver v. State, 269 Ga. 530 , 500 S.E.2d 563, 565 (1998).
cited Cited as authority (rule) Michael v. State
Ga. Ct. App. · 1998 · confidence medium
Tolver v. State, 269 Ga. 530, 531-532 (2) ( 500 SE2d 563 ) (1998). 7.
examined Cited "see" Walden v. State (4×)
Ga. · 2011 · signal: see · confidence high
See Tolver v. State, 269 Ga. 530, 533 (4) ( 500 SE2d 563 ) (1998).
discussed Cited "see" Hubbard v. State (2×)
Ga. · 2009 · signal: see · confidence high
See Tolver v. State, 269 Ga. 530 (4) ( 500 SE2d 563 ) (1998); Lemley v. State, 258 Ga. 554 (4) ( 372 SE2d 421 ) (1988).
discussed Cited "see" Pittman v. State (2×)
Ga. · 2001 · signal: see · confidence high
See Tolver v. State, 269 Ga. 530 (4) ( 500 SE2d 563 ) (1998); Lemley v. State, 258 Ga. 554 (4) ( 372 SE2d 421 ) (1988). *265 See also Happoldt v. State, 267 Ga. 126 (2) ( 475 SE2d 627 ) (1996).
discussed Cited "see" Butts v. State (2×)
Ga. · 2001 · signal: see · confidence high
This appeal was docketed in this Court on November 3, 2000, and orally argued on February 12, 2001. [2] Jackson v. Virginia, 443 U.S. 307 , 99 S.Ct. 2781 , 61 L.Ed.2d 560 (1979); OCGA § 17-10-30(b)(2). [3] Miller v. State, 270 Ga. 741, 742 (1), 512 S.E.2d 272 (1999); Smith v. State, 267 Ga. 502, 503-504 (3), 480 S.E.2d 838 (1997). [4] Pope v. State, 257 Ga. 32, 34-35 (2)(a), 354 S.E.2d 429 (1987) (citing United States v. Slay, 714 F.2d 1093 (11th Cir.1983)); see Rule 25.1 Uniform Rules for the Superior Courts; see also Kurtz v. State, 233 Ga.App. 186, 187-188 (3), 504 S.E.2d 51 (1998) (noting…
cited Cited "see" Bailey v. State
Ga. Ct. App. · 2000 · signal: see · confidence high
See Tolver v. State, supra, 269 Ga. at 533 .
examined Cited "see" Rushin v. State (6×)
Ga. · 1998 · signal: see · confidence high
See Tolver v. State, 269 Ga. 530 ( 500 SE2d 563 ) (1998).
discussed Cited "see, e.g." Carl Ricardo Beamon v. State (2×)
Ga. Ct. App. · 2019 · signal: see also · confidence medium
See Dawson v. State, 283 Ga. 315, 318 (3) ( 658 SE2d 755 ) (2008) (affirming trial court’s ruling that security video was admissible, despite the lack of personal authentication, where security director testified the cameras operated properly, were capable of reliably recording the scene, and recorded the events contemporaneously); see also Tolver v. State, 269 Ga. 530, 532 (3) ( 500 SE2d 563 ) (1998) (affirming trial court’s ruling that surveillance tape that had been spliced and was identified only by its brand name label was admissible where the court heard testimony from the store supe…
discussed Cited "see, e.g." Beamon v. State (2×)
Ga. Ct. App. · 2019 · signal: see also · confidence low
See Dawson v. State , 283 Ga. 315 , 318 (3), 658 S.E.2d 755 (2008) (affirming trial court's ruling that security video was admissible, despite the lack of personal authentication, where security director testified the cameras operated properly, were capable of reliably recording the scene, and recorded the events contemporaneously); see also Tolver v. State , 269 Ga. 530 , 532 (3), 500 S.E.2d 563 (1998) (affirming trial court's ruling that surveillance tape that had been spliced and was identified only by its brand name label was admissible where the court heard testimony from the store superv…
discussed Cited "see, e.g." Caves v. Columbus Bank & Trust Co. (2×)
Ga. Ct. App. · 2003 · signal: see also · confidence medium
Co., 230 Ga. App. 635, 636 (1) ( 497 SE2d 255 ) (1998) (“[A]n objection to the timeliness of an affidavit submitted in support of a motion for summary judgment will be deemed waived unless it is itself timely raised in the trial court.”). 10 (Punctuation omitted.) Nelson v. State, 255 Ga. App. 315, 319 (2) ( 565 SE2d 551 ) (2002). 11 See id.; see also Tolver v. State, 269 Ga. 530, 531-532 (2) ( 500 SE2d 563 ) (1998). 12 See Heath, supra; Vickers, supra. 13 See Court of Appeals Rule 27 (c) (2). 14 See OCGA § 23-2-29 (“If a party, by reasonable diligence, could have had knowledge of the t…
examined Cited "see, e.g." Beasley v. State (4×)
Ga. · 1998 · signal: see also · confidence low
Co., 213 Ga. 809, 810 ( 102 SE2d 9 ) (1958) (admitting motion picture film of union members charged with violating injunction after camera operator testified that the film correctly portrayed what he saw as he was filming); see also Tolver v. State, 269 Ga. 530 ( 500 SE2d 563 ) (1998) (affirming admission of crime surveillance tape based on the testimony of store supervisor on store procedures, GBI agent who found the stolen tape, photographer who repaired it, and investigator who copied it); Stephens v. State, 239 Ga. 446, 447 ( 238 SE2d 29 ) (1977) (admitting film and clerk’s testimony con…
Retrieving the full opinion text from the archive…
Tolver
v.
the State
S98A0473.
Supreme Court of Georgia.
May 18, 1998.
500 S.E.2d 563
James M. Walker III, for appellant., C. Paul Bowden, District Attorney, Thurbert E. Baker, Attorney General, Paula K. Smith, Senior Assistant Attorney General, Angelica M. Woo, Assistant Attorney General, for appellee.
Fletcher.
Cited by 51 opinions  |  Published
Fletcher, Presiding Justice.

A jury convicted Robert Lee Tolver, Jr. of malice murder and armed robbery in the shooting death of Cindy Ray Pierce. [1] Tolver[*531] appeals and raises several issues, including the admissibility of a videotape of the crime. Because the state laid a proper foundation for the admission of the videotape and none of Tolver’s remaining enumerations contain error requiring reversal, we affirm.

The evidence at trial showed that on Thanksgiving night 1995 Tolver was driving around with Gerald “Nick” Rushin and Stanley Simon. Rushin had a gun and said, “I am going to rob someone.” They stopped at the Holiday Market convenience store in Poulan, Georgia. After the three men went into the store, Tolver heard Rushin demand money and heard the clerk, Cindy Ray Pierce, scream, “Please don’t hurt me.” The three returned to the car and Rushin said that he had killed the clerk. Tolver saw that Rushin had a videotape after the robbery. Later that night, Rushin gave Tolver some money and told him to keep quiet or else he would kill him. Later, agents with the Georgia Bureau of Investigation found the Holiday Market’s surveillance tape, which a forensic photographer repaired by splicing the broken pieces. The tape shows three males enter the Holiday Market. Two approach the counter and one of them raises his arm, holding a gun.

1. After reviewing the evidence in the light most favorable to the jury’s determination of guilt, we conclude that a rational trier of fact could have found Tolver guilty of the crimes charged beyond a reasonable doubt. [2] Even assuming Tolver did not know Rushin was going to kill someone, this fact does not automatically relieve Tolver of criminal responsibility for the murder. [3]

2. Tolver. contends that the state failed to lay a proper foundation for the admission of the surveillance tape because the state’s witness identified the tape only by the brand name label. The state argues that this objection has been waived because Tolver failed to state what the proper foundation would be. A long line of cases in both appellate courts have recited as a rule that “objection on the ground of lack of proper foundation without stating what the proper foundation should be is insufficient and presents nothing for review.” [4] In suggesting that objecting counsel must educate opposing counsel on how to establish the missing foundational elements, the standard formulation of this rule is misleading. Rather, as shown in the case in which this rule originated, [5] this rule is simply a statement of the gen[*532] eral principle that counsel must assert objections with specificity to enable the trial court to intelligently rule on the objection and to create a clear record for the appellate court. [6]

Because “lack of foundation” has no single defined meaning, an objection of “lack of foundation” generally is of little or no use to a trial judge. For example, “lack of foundation” can refer to a failure to establish that the item of evidence being offered is the same item it purports to be — often referred to as chain of custody, [7] or it may refer to a failure to establish that the witness is testifying from personal knowledge. [8] Lack of foundation may also refer to a failure to establish that business records meet the requirements of O.C.G.A. § 24-3-14 [9] or that a party has not established a witness’s qualifications as an expert. [10] Because of the varied meanings for “lack of foundation,” a party making an objection for lack of foundation must specify the foundational element he contends is lacking.

In his objection, Tolver argued that the state’s witness, a forensic photographer, could not identify the tape marked as state’s exhibit 9 as the surveillance tape by the tape’s brand name label and that exhibit 9A suffered from the same deficiency. After reviewing the record, we conclude that this objection was specific enough for the trial court, and this Court, to understand the objection as arguing that the state had not established that exhibits 9 and 9A were what they were purported to be — the surveillance tape from the scene of the crime. Therefore, this enumeration may be considered on appeal.

3. To establish that state’s exhibit 9 was the tape taken from the surveillance camera at the scene of the crime, the state presented testimony from the Holiday Market supervisor who had viewed the tape and testified as to the store’s procedures regarding the surveillance camera, the GBI agent who found the tape, the forensic photographer, who repaired the tape, and the investigator who created state’s exhibit 9A by copying exhibit 9. This evidence adequately established that exhibit 9 was the surveillance tape from the camera at the Holiday Market the night of the murder and exhibit 9A was a copy of that tape. [11] Therefore, the trial court did not err in overruling Tolver’s objection.

4. Tolver contends that the trial court erred in denying his motion to change venue because of pretrial publicity. The record con[*533] tains nine articles in three newspapers relating to the shooting. All but two of the articles were published within two weeks of the crime and more than a year before the trial. The latter two articles were published nine and seven months, respectively, before Tolver’s trial. The articles reported unembellished, accurate facts of the incident, were not inflammatory, and did not report any information that was inadmissible in the trial. [12] Furthermore, the voir dire reveals that only three of forty-eight prospective jurors had formed opinions about the case based on exposure to pretrial publicity, and the trial court dismissed these jurors for cause. Based on this record, we conclude that the trial court did not abuse its discretion in denying the motion to change venue.

Decided May 18, 1998 Reconsideration denied June 12,1998. James M. Walker III, for appellant. C. Paul Bowden, District Attorney, Thurbert E. Baker, Attorney General, Paula K. Smith, Senior Assistant Attorney General, Angelica M. Woo, Assistant Attorney General, for appellee.

5. Tolver contends that the charge given regarding parties to a crime was confusing and not adjusted to the facts of this case. The state contends that Tolver has waived his right to object because he failed to object at the time of the charge or to reserve objections. The record reveals, however, that the trial court did not inquire as to whether counsel had objections. Therefore, Tolver cannot be deemed to have waived the right to raise his objection on appeal. [13]

The charge given was the charge suggested in Lattimore v. State. 14 We conclude that it is accurate and was not confusing under the facts of this case.

Judgment affirmed.

All the Justices concur.
1

The crime occurred on November 23,1995. A grand jury indicted Tolver on October 28, 1996. Following a jury trial, he was convicted on December 5, 1996. On December 11, 1996, the trial court sentenced him to life for malice murder and to a concurrent life sentence for armed robbery. Tolver filed a motion for new trial on January 6,1997, which he amended on[*531] September 12, 1997. The trial court entered its order denying the motion on October 20, 1997. Tolver filed his notice of appeal on November 17,1997; it was docketed in this court on December 10, 1997 and submitted for decision without oral argument on January 26, 1998.

2

Jackson v. Virginia, 443 U.S. 307 (99 SC 2781, 61 LE2d 560) (1979).

3

See Lobdell v. State, 256 Ga. 769, 773 (353 SE2d 799) (1987).

4

Dick v. State, 246 Ga. 697, 704 (273 SE2d 124) (1980); Freeman v. Young, 147 Ga. 699 (3) (a) (95 SE 236) (1918); Dunn v. State, 218 Ga. App. 329 (461 SE2d 294) (1995).

6

Paul S. Milich, Georgia Rules of Evidence, § 3.2 (1995).

7

See White v. State, 230 Ga. 327, 334-335 (196 SE2d 849) (1973).

8

See Johnson v. State, 260 Ga. 17, 19 (389 SE2d 238) (1990).

9

See Johnson v. State, 266 Ga. 775, 776 (470 SE2d 637) (1996).

10

See Simpson v. State, 250 Ga. 365, 367 (297 SE2d 288) (1982).

11

See O.C.G.A. § 24-4-8 (b) (where witness with personal knowledge of events is unavailable to authenticate videotape, it is admissible where competent evidence shows that the tape reliably shows the facts for which the tape is offered).

12

Compare Tyree v. State, 262 Ga. 395, 396-397 (418 SE2d 16) (1992).

13

See Lumpkin v. State, 249 Ga. 834 (1) (295 SE2d 86) (1982); Garrett v. State, 184 Ga. App. 593, 594 (362 SE2d 150) (1987).