Court Finds Defendant Failed to Timely Object to Other Crimes Evidence

The Court held that the defendant must object to this evidence at the time the trial court makes a final ruling on the admissibility of the evidence.

The defendant was on trial for an alleged armed robbery and aggravated assault. The State sought to introduce evidence of a prior robbery offense to which the defendant ultimately pleaded guilty. At a pretrial hearing, the trial court held that the prior offense was “similar enough for the State to attempt to introduce it to show bent of mind and possibly identification if that becomes an issue in the case.” Then, during the trial, an eyewitness stated that he could not identify the defendant as the perpetrator of the armed robbery. As a result, the State needed the evidence of the prior robbery for the purpose of proving identification. At this point, the trial court issued a final ruling that the evidence was, in fact, admissible to prove identity. The defendant did not state an objection when the trial court issued this final ruling.

The Court noted that before 1994, a defendant who wished to preserve a similar transaction issue for appeal was required to object to the ruling at trial, even if he had already objected in the pretrial hearing. The Georgia Supreme Court abandoned the repetitive objection rule in Whitehead v. State, holding that a defendant was not required to renew before the jury an objection to similar transaction evidence “that already was raised and ruled on by the trial court.” However, the Court held that Whitehead did not apply to this case because the trial court had not issued a final ruling as to whether the evidence was admissible to prove identity until it was introduced at trial. Thus, by failing to make an objection to the trial court’s final ruling, the defendant waived his right to appeal that ruling.

NOTE: This is an important decision for Georgia criminal defense lawyers to be aware of. It is quite common for the State to introduce evidence of prior offenses in criminal cases and it is also common for trial courts to reserve making a final ruling on the evidence until mid-trial. Thus, a failure to preserve an objection to this evidence at the proper time will result in the defendant’s inability to challenge the ruling on appeal.