Smith v. State, 577 S.E.2d 548 (Ga. 2003). · Go Syfert
Smith v. State, 577 S.E.2d 548 (Ga. 2003). Cases Citing This Book View Copy Cite
“but was not trying to impeach the witness on general credibility grounds; he was attempting to show the witnesses bias.”
66 citation events (66 in the last 25 years) across 2 distinct courts.
Strongest positive: Walker v. State (gactapp, 2013-06-11)
Treatment trajectory · 2003 → 2026 · click a year to view as-of
2003 2014 2026
Top citers, strongest first. 20 distinct citers.
examined Cited as authority (quoted) Walker v. State (3×) also: Cited "see", Cited "see, e.g."
Ga. Ct. App. · 2013 · signal: see also · quote attribution · 1 verbatim quote · confidence low
but was not trying to impeach the witness on general credibility grounds; he was attempting to show the witnesses bias.
examined Cited as authority (rule) Howard v. State (6×) also: Cited "see"
Ga. · 2024 · confidence medium
During the pendency of a first-offender sentence, there has 15 been no adjudication of guilt or final judgment,8 the first offender is not considered “convicted” as that term is used in Georgia’s Criminal Code, the “matter remains pending[,]” Smith, 276 Ga. at 265 (2), and the first offender has the opportunity — upon the satisfactory completion of the first-offender sentence — to be altogether exonerated of guilt and stand discharged as a matter of law.
discussed Cited as authority (rule) Merritt v. State
Ga. · 2021 · confidence medium
See Lee v. State, 306 Ga. 663 (4) ( 832 SE2d 851 ) (2019) (no abuse of discretion where the trial court allowed the State to cross-examine a defense witness about a pending criminal indictment brought by the same prosecuting office and instructed the jury that the limited purpose of the evidence was to show bias against the State); Smith v. State, 276 Ga. 263, 265 (2) ( 577 SE2d 548 ) (2003) (a defendant has the right to show possible bias of a witness in favor of the State by cross-examining that witness about pending criminal charges or a pending probation revocation).
discussed Cited as authority (rule) Andre Blase Torres v. State
Ga. Ct. App. · 2020 · confidence medium
We are unpersuaded. 5 Quoting Smith v. State, 276 Ga. 263, 265 (2) ( 577 SE2d 548 ) (2003), Torres points out that “[t]he Confrontation Clause of the Sixth Amendment guarantees a defendant in a criminal case the right to show the possible bias of a witness by cross-examining him concerning pending criminal charges or a pending probation revocation.” But that principle has no bearing on the present case, given that there was no evidence that the victim’s older brother had pending charges relating to the prior sexual incident, which occurred approximately 11 years before the trial.
discussed Cited as authority (rule) Willie Andrew Johnson v. State
Ga. Ct. App. · 2017 · confidence medium
Thus, even if the witness consults a writing while testifying, the adverse party is not entitled to see it unless the writing influenced the witness’s testimony.” (punctuation omitted)). 15 Meredith v. State, 211 Ga. App. 213, 215 (4) ( 438 SE2d 644 ) (1993). 16 Id. 17 See Smith v. State, 276 Ga. 263, 266 (3) ( 577 SE2d 548 ) (2003) (holding that trial court did not abuse its discretion in denying mistrial based upon allegation of prosecutorial misconduct when underlying circumstances were made known to the jury and were fully probed on cross-examination, such that it could not be said “…
discussed Cited as authority (rule) Alander Crapps v. State
Ga. Ct. App. · 2014 · confidence medium
We find no merit in this assertion. 5 OCGA § 42-8-60 provides, in relevant part: “Upon a verdict or plea of guilty or a plea of nolo contendere, but before an adjudication of guilt, in the case of a defendant who has not been previously convicted of a felony, the court may, without entering a judgment of guilt and with the consent of the defendant . . . [d]efer further proceeding and place the defendant on probation as provided by law.” OCGA § 42-8- 60 (a) (1). 17 Georgia law makes clear that “[t]he first offender record of one who is currently serving a first offender sentence or of o…
discussed Cited as authority (rule) Crapps v. State
Ga. Ct. App. · 2014 · confidence medium
Georgia law makes clear that “[t]he first offender record of one who is currently serving a first offender sentence or of one who has successfully completed the first offender sentence may not be used to impeach the first offender on general credibility grounds ... because no adjudication of guilt has been entered.” Smith v. State, 276 Ga. 263, 264-265 (2) ( 577 SE2d 548 ) (2003) (citations and punctuation omitted).
cited Cited as authority (rule) Strong v. State
Ga. Ct. App. · 2011 · confidence medium
Manley v. State, 287 Ga. 338, 346 (5) ( 698 SE2d 301 ) (2010); Smith v. State, 276 Ga. 263, 265 (2) ( 577 SE2d 548 ) (2003).
discussed Cited as authority (rule) Cline v. State
Ga. Ct. App. · 2009 · confidence medium
Blackburn, P. J., and Adams, J., concur. 1 OCGA § 16-6-22.2 (b). 2 OCGA § 16-5-70 (b). 3 See Short v. State, 234 Ga. App. 633, 634 (1) ( 507 SE2d 514 ) (1998). 4 275 Ga. 637 ( 571 SE2d 752 ) (2002). 5 See id. at 637-638 . 6 Id. at 640 (1). 7 Smith v. State, 276 Ga. 263, 264 (2) ( 577 SE2d 548 ) (2003). 8 (Punctuation omitted.) Payne v. State, 273 Ga. App. 483, 485-486 (3) ( 615 SE2d 564 ) (2005).
discussed Cited as authority (rule) Alford v. State
Ga. Ct. App. · 2008 · confidence medium
Smith, P. J., and Adams, J., concur. 1 (Citation and punctuation omitted.) Dunn v. State, 289 Ga. App. 585 (1) ( 657 SE2d 649 ) (2008). 2 State v. Jones, 287 Ga. App. 259, 260 ( 651 SE2d 186 ) (2007), citing Johnson v. State, 230 Ga. App. 535, 537 (1) ( 496 SE2d 785 ) (1998). 3 See Jones, supra (reliable CI told officer that an individual driving a two-tone gray pickup truck with a certain placard on the door would be leaving a specific area with a *514 particular quantity of cocaine); Steed v. State, 273 Ga. App. 845, 846 (1) ( 616 SE2d 185 ) (2005) (known, reliable informant told investigato…
discussed Cited as authority (rule) Tate v. State
Ga. Ct. App. · 2006 · confidence medium
Johnson, P. J., and Barnes, J., concur. 1 See Smith v. State, 276 Ga. App. 677 (1) ( 624 SE2d 272 ) (2005). 2 See Roebuck v. State, 277 Ga. 200, 206 (9) ( 586 SE2d 651 ) (2003). 3 See Harrell v. State, 253 Ga. App. 691, 694 (3) ( 560 SE2d 295 ) (2002). 4 See Benefield v. State, 278 Ga. 464, 465-466 ( 602 SE2d 631 ) (2004); Larry v. State, 266 Ga. 284, 287-288 (5) ( 466 SE2d 850 ) (1996); Miller v. State, 265 Ga. App. 402, 403 (2) ( 593 SE2d 943 ) (2004). 5 See Parker v. State, 249 Ga. App. 509, 512 (2) ( 548 SE2d 475 ) (2001). 6 373 U. S. 83 (83 SC 1194, 10 LE2d 215) (1963). 7 405 U. S. 150 (9…
examined Cited as authority (rule) Hunt v. State (3×) also: Cited "see"
Ga. Ct. App. · 2004 · confidence medium
Consequently, his claim that the trial court erred in failing to rebuke counsel has been preserved for appellate review. [37] Compare Grant v. State, 257 Ga.App. 275, 276-277 (2), 570 S.E.2d 597 (2002). [38] See Rivers v. State, 265 Ga. 694, 697 (6), 461 S.E.2d 205 (1995). [39] Id. [40] Pullin v. State, 258 Ga.App. 37, 42 (3), 572 S.E.2d 722 (2002). [41] See generally Smith v. State, 276 Ga. 263, 265 (2), 577 S.E.2d 548 (2003); Blanchard v. State, 247 Ga. 415, 417 (2), 276 S.E.2d 593 (1981).
examined Cited as authority (rule) Melson v. State (3×) also: Cited "see"
Ga. Ct. App. · 2003 · confidence medium
While it is true that a first offender sentence cannot be used to impeach the first offender on general credibility grounds because no adjudication of guilt has been entered (Smith v. State, 276 Ga. 263, 264 (2) ( 577 SE2d 548 ) (2003)), “the defendant is entitled to attack the credibility of the witness by showing that the pending charges reveal a possible bias, prejudice, or ulterior motive on the part of the witness to give untruthful or shaded testimony in an effort to please the State.” (Citation omitted.) Scott v. State, 242 Ga. App. 850, 851 ( 527 SE2d 210 ) (1999).
discussed Cited "see" Lee v. State (2×)
Ga. · 2019 · signal: see · confidence high
See Smith v. State, 276 Ga. 263, 264 (2) ( 577 SE2d 548 ) (2003).
examined Cited "see" Tyrone Walker v. State (3×) also: Cited "see, e.g."
Ga. Ct. App. · 2013 · signal: see · confidence high
See Smith, 276 Ga. at 265 (2).
discussed Cited "see" Sanders v. State (2×)
Ga. · 2012 · signal: see · confidence high
See Smith v. State, 276 Ga. 263, 264 (2) ( 577 SE2d 548 ) (2003).
examined Cited "see" Manley v. State (4×)
Ga. · 2010 · signal: see · confidence high
See Hibbs v. State, 299 Ga. App. 723 (2) ( 683 SE2d 329 ) (2009), citing Vogleson, supra. See also Smith v. State, 276 Ga. 263, 265 (2) ( 577 SE2d 548 ) (2003).
examined Cited "see" Leeks v. State (3×)
Ga. Ct. App. · 2006 · signal: see · confidence high
See Smith v. State, 276 Ga. 263, 265 (2) ( 577 SE2d 548 ) (2003).
examined Cited "see, e.g." Woolfolk v. State (4×)
Ga. · 2007 · signal: see, e.g. · confidence low
See, e.g., Smith v. State, 276 Ga. 263 (4) ( 577 SE2d 548 ) (2003); Dukes, supra, 273 Ga. at 890 (4).
examined Cited "see, e.g." Richardson v. State (3×)
Ga. Ct. App. · 2005 · signal: see also · confidence medium
See also Smith v. State, 276 Ga. 263, 266 (4) ( 577 SE2d 548 ) (2003). 11 (Citations omitted.) Smith, supra. See also Butts v. State, 250 Ga. App. 695, 696-697 (1) ( 552 SE2d 888 ) (2001) (evidence that defendant drove evasively to avoid police admissible as circumstances of arrest).
Smith
v.
the State
S02A1881.
Supreme Court of Georgia.
Feb 24, 2003.
577 S.E.2d 548
Tara L. Kneller, for appellant., Paul L. Howard, Jr., District Attorney, Bettieanne C. Hart, Assistant District Attorney, Thurbert E. Baker, Attorney General, Ruth M. Pawlak, Assistant Attorney General, for appellee.
Thompson, Brady, Giglio.
Cited by 27 opinions  |  Published
1 passage pin-cited by 1 case
Pinpoint authority: bottom 80%
Citer courts: Court of Appeals of Georgia (1)
Thompson, Justice.

Defendant Eric Deandre Smith was convicted of malice murder and possession of a firearm during the commission of a felony in connection with the death of Derrick Colbert. [1] He appeals, asserting, inter alia, he was denied the right to open and conclude closing argument because the trial court required him to put into evidence a certified copy of a witness’ sentence under the First Offender Act. Finding no reversible error, we affirm.

1. Viewing the evidence in a light to uphold the verdict, we find the following: On the day in question, Toronto Burdett, who was Smith’s half-brother, Billy Ladson, and Carlos White, all of whom were armed, approached Colbert in the parking lot of an apartment complex. Smith came on the scene suddenly. He was carrying an assault weapon which appeared to be an AK-47 and he was garbed in black.

Smith accused Colbert of killing his father. Then he shot Colbert numerous times in the head, torso and extremities. Colbert died immediately.

Smith and Burdett left the scene in Burdett’s automobile. Within days of the shooting, Smith told another brother and Burdett’s girlfriend that he (Smith) shot Colbert.

Smith was arrested approximately two weeks later when a police[*264] officer saw him shooting another AK-47. Again, Smith was dressed entirely in black.

The evidence is sufficient to enable any rational trier of fact to find Smith guilty beyond a reasonable doubt of malice murder and possession of a firearm during the commission of a felony. Jackson v. Virginia, 443 U. S. 307 (99 SC 2781, 61 LE2d 560) (1979).

2. Smith contends the trial court erred in requiring him to introduce into evidence the first offender record of a witness for the State whom Smith cross-examined. In this regard, Smith asserts that the trial court’s ruling caused him to lose the right to open and conclude closing argument.

On cross-examination, Smith asked the witness if he was currently on probation as a first offender. When the witness answered affirmatively, the prosecutor asserted that in order to impeach the witness, it was incumbent upon Smith to introduce a certified copy of the witness’ “conviction.” Defense counsel responded that she was not trying to impeach the witness; she was only questioning him about his first offender status to show bias. She also stated that she did not want to proffer evidence because she did not want to waive the right to open and conclude closing argument. Defense counsel’s protestations notwithstanding, the trial court required defense counsel to introduce the witness’ first offender record, and she did so.

At one time, it was permissible to impeach a witness with a first offender sentence. See Favors v. State, 234 Ga. 80, 86 (3) (214 SE2d 645) (1975).

But in the recent decision of Matthews v. State, 268 Ga. 798, 801-803 (4) (493 SE2d 136) (1997), [this Court] held that a witness may not be impeached by evidence of a first offender sentence in the absence of an adjudication of guilt. “The first offender record of one who is currently serving a first offender sentence or of one who has successfully completed the first offender sentence may not be used to impeach the first offender on general credibility grounds (i.e., by establishing that the first offender has been convicted of a felony or crime of moral turpitude) because no adjudication of guilt has been entered. [Cits.]” Davis v. State, 269 Ga. 276, 277 (2) (496 SE2d 699) (1998)[;] Buffington v. State, 228 Ga. App. 810, 812 (492 SE2d 762) (1997).

Hall v. State, 235 Ga. App. 44, 47 (6) (508 SE2d 703) (1998). Thus, even if Smith were attempting to impeach the witness, rather than point to bias, it would appear that the trial court erred in requiring defendant to introduce the witness’ first offender record into evidence. But Smith was not trying to impeach the witness on general[*265] credibility grounds; he was attempting to show the witness’ bias. See Scott v. State, 242 Ga. App. 850, 851 (527 SE2d 210) (1999).

The Confrontation Clause of the Sixth Amendment guarantees a defendant in a criminal case the right to show the possible bias of a witness by cross-examining him concerning pending criminal charges or a pending probation revocation. Turtle v. State, 271 Ga. 440, 444 (4) (520 SE2d 211) (1999); Hines v. State, 249 Ga. 257, 259 (2) (290 SE2d 911) (1982); Scott v. State, supra at 851-852. However, certified copies of court documents relating to such matters are not admissible. Turtle v. State, supra. These same rules logically apply to first offender probation status because in that situation there has not been an adjudication of guilt and the matter remains pending. See OCGA § 42-8-60. Thus, Smith should have been permitted to cross-examine the witness regarding his first offender treatment to show bias without being required to introduce documents of the witness’ first offender status. It follows that (1) the trial court erred in requiring Smith to introduce the witness’ first offender record and (2) Smith should not have lost the right to open and conclude argument. Lane v. State, 274 Ga. 751, 753 (559 SE2d 455) (2002). However, we find that the error in this regard was harmless. See McDuffie v. Jones, 248 Ga. 544, 546 (2) (283 SE2d 601) (1981) (right to make final argument is important right and harm is presumed when it is erroneously abridged; however, the presumption is not absolute and the error may be shown to be harmless).

The evidence against Smith was overwhelming. Three witnesses identified Smith as the shooter. Another witness, who overheard Smith say he was going to kill the victim to avenge his father’s death, placed Smith at the scene with a gun. And two other witnesses averred that Smith told them he killed the victim. At the time of the murder, Smith was dressed in black; he used something akin to an AK-47 to shoot the victim. Two weeks later, at the time of his arrest, Smith again was dressed in black, and he was carrying an AK-47.

Smith was erroneously denied the right to conclude the argument; but he was not denied the right to argue his case; and he did so. See McDuffie v. Jones, supra at 548. In light of the overwhelming evidence against Smith, it is highly probable that the denial of the right to conclude argument did not contribute to the verdict. Compare Givens v. State, 264 Ga. 522, 523 (1) (448 SE2d 687) (1994) with McDuffie v. Jones, supra. See also Monroe v. State, 272 Ga. 201, 202 (528 SE2d 504) (2000).

3. Smith contends the trial court erred in denying a motion for mistrial which was premised on prosecutorial misconduct. In this regard, Smith asserts the prosecution failed to disclose that it reached a deal with one of its witnesses (to dismiss several warrants)[*266] in violation of Brady and Giglio? We find no abuse of discretion in the denial of the mistrial motion. See Ottis v. State, 271 Ga. 200, 201 (3) (517 SE2d 525) (1999). After Smith moved for a mistrial, the witness returned to testify and the circumstances surrounding any deal between the prosecution and the witness were made known to the jury. Moreover, Smith fully probed those circumstances on cross-examination. Thus, it cannot be said that the prosecution had engaged in misconduct which would have affected the outcome of the jury’s deliberations, see Coleman v. State, 271 Ga. 800, 801 (2) (523 SE2d 852) (1999), and warranted the grant of a mistrial.

Decided February 24, 2003. Tara L. Kneller, for appellant. Paul L. Howard, Jr., District Attorney, Bettieanne C. Hart, Assistant District Attorney, Thurbert E. Baker, Attorney General, Ruth M. Pawlak, Assistant Attorney General, for appellee.

4. The trial court did not abuse its discretion in admitting into evidence the circumstances surrounding Smith’s arrest. Benford v. State, 272 Ga. 348, 350 (528 SE2d 795) (2000). The circumstances were relevant to the charged crime and they were admissible, even if they incidentally put Smith’s character in issue. Dukes v. State, 273 Ga. 890, 893 (4) (548 SE2d 328) (2001); Ivester v. State, 252 Ga. 333, 335 (313 SE2d 674) (1984).

5. The trial court erroneously charged the jury that it could infer the intent to kill from the intentional use of a deadly weapon. Harris v. State, 273 Ga. 608, 610 (2) (543 SE2d 716) (2001). However, the evidence of malice was overwhelming. Thus, it is highly probable that the error did not contribute to the judgment, and the error must be deemed harmless. Scott v. State, 275 Ga. 305, 306 (5) (565 SE2d 810) (2002).

Judgment affirmed.

All the Justices concur. 2 Brady v. Maryland, 373 U. S. 83 (83 SC 1194, 10 LE2d 215) (1963); Giglio v. United States, 405 U. S. 150 (92 SC 763, 31 LE2d 104) (1972).
1

Colbert was killed on September 14, 2000. One month later, the grand jury indicted Smith, Toronto Ontario Burdett, Billy Darnte Ladson and Carlos Marquez White, and charged them with malice murder, felony murder, aggravated assault, and possession of a firearm during the commission of a felony. (White was also charged with possession of a firearm by a convicted felon.) Smith and Burdett were tried together beginning February 26, 2001. Smith was convicted on all counts and, on March 8, 2001, he was sentenced to life for malice murder, plus five years (consecutive) for the firearm charge. (The felony murder and aggravated assault charges were merged with the malice murder charge for sentencing purposes.) Smith’s timely filed motion for a new trial was denied on February 20, 2002. Thereafter, Smith sought, and was granted, an out-of-time appeal; he filed a notice of appeal on June 13, 2002. The case was docketed in this Court on August 22, 2002, and submitted for a decision on the briefs on October 14, 2002.