Opinion
72674.
DECIDED OCTOBER 31, 1986.
D.U.I. Cobb Superior Court. Before Judge Cauthorn.
Jimmy D. Berry, for appellant.
Thomas J. Charron, District Attorney, Donald T. Phillips, Debra H. Bernes, Assistant District Attorneys, for appellee.
Defendant appeals the conviction of driving under the influence of alcohol on July 21, 1984. (See OCGA § 40-6-391 (a) (1) prior to the amendments of 1985). He was acquitted of vehicular homicide (OCGA § 40-6-393) and a directed verdict was entered on the charge of driving in violation of probationary license (OCGA § 40-5-58).
While operating a jeep on a dirt road, defendant lost control of the vehicle and it overturned while sliding down a steep embankment. One of the passengers was killed and the other injured.
1. Three enumerations of error concern the trial court's pre-evidentiary statements to the jury.
a) The court's statements concerning the function of the grand jury in returning an indictment were accurate and taken from the Georgia Superior Court Judge's Benchbook, § 32.11 (7). They are not subject to the construction urged by defendant, that the use of the word "convicted" takes away his presumption of innocence. We view the instruction in the context of the overall charge. Johnson v. Zant, 249 Ga. 812, 818 (9) ( 295 S.E.2d 63) (1982). The court simply explained how the indictment came to be before the petit jury and what the function of the grand jury was in this regard, being particularly careful both then and in the final charge to caution that the indictment is not evidence of guilt.
b) That portion of the court's statement concerning intent was substantially identical to that approved by the Supreme Court in Flynn v. State, 255 Ga. 415, 416 (2b) ( 339 S.E.2d 259) (1986) and this court in Trenor v. State, 178 Ga. App. 351 ( 343 S.E.2d 408) (1986), in which we held there was no Francis v. Franklin, 471 U.S. 307 ( 105 SC 1965, 85 L.Ed.2d 344) (1985), violation. As to a presumption of sound mind, see Nevins v. State, 180 Ga. App. 260 ( 349 S.E.2d 17) (1986).
c) The court advised the jury of the applicable portion of OCGA § 40-6-391, i.e., subsection (a) (1), but defendant contends that the required degree of influence as described in Sims v. State, 92 Ga. App. 169 ( 88 S.E.2d 186) (1955), should have been explained. A correct instruction to the jury is not erroneous for the failure to embody an additional explanatory charge. Wilkins v. State, 86 Ga. App. 12, 14 (1) ( 70 S.E.2d 541) (1952); Griffin v. State, 195 Ga. 368, 371 ( 24 S.E.2d 399) (1943). Moreover, the court at this early stage was merely introducing the case to the jury.
As to all three enumerations, a pre-evidentiary statement is not the equivalent of a jury charge; even if a portion thereof had been incorrect, where the principles of law were thoroughly covered in the main charge, the initial statement would not have misled the jury and would be harmless error. Levesque v. State, 172 Ga. App. 760, 761 ( 324 S.E.2d 580) (1984).
2. Defendant complains that the admission of his photograph taken shortly after his arrest was a mug shot which tended to place his character in evidence. Since the circumstances under which the photo was taken were thoroughly described, and related to the crime for which he was on trial, the jury was not misled but were merely made aware of the "booking" process of which photographing is a part. The photograph was introduced to illustrate defendant's physical appearance shortly after his arrest. Heard v. State, 170 Ga. App. 130, 135 (11b) ( 316 S.E.2d 504) (1984). Obviously, an objective of a trial is to recreate the incident being tried. Where, as here, the condition vis-a-vis alcohol influence of the defendant at that time was an issue, his physical appearance was some evidence, and the capture of it by photograph was admissible, its weight a question for the jury. Owens v. State, 248 Ga. 629, 630 ( 284 S.E.2d 408) (1981).
3. During the course of cross-examining one of the state's witnesses who was not at the scene before the "jeep" was moved, defense counsel requested that the officer read a statement made to him by another witness who had seen it. It is now contended that the trial court's sustaining objection to such testimony amounted to a refusal to permit counsel to examine notes used by a witness to refresh his memory. See Baxter v. State, 254 Ga. 538, 548 (18) ( 333 S.E.2d 561) (1985). For two reasons this enumeration does not assist appellant. First, this was not a request for access to the notes but an attempt to have a hearsay statement read to the jury; second, there is nothing to show the statement was used by the witness to refresh his memory.
4. (a) Defendant objects to the admission of his driving record. As noted earlier, defendant was also charged with driving a vehicle outside the scope of his probationary license. See OCGA § 40-5-58 (e). The records were introduced to show defendant lost his license as a result of being found a habitual violator and had his license reinstated on a probationary basis, that he drive only for "business purposes."
At the time when the records of defendant's traffic violations were introduced, after initially objecting defense counsel waived any objections by stating "[w]e have no objection because we plan to bring it out, anyway . . ." and then limiting the objection to the manner the prosecutor displayed the document. Sims v. State, 234 Ga. 177, 179 (4) ( 214 S.E.2d 902) (1975). See also Upshaw v. Cooper, 127 Ga. App. 690, 692 (1) ( 194 S.E.2d 618) (1972). He does not cite this as error on appeal but rather urges that the driving record was inadmissible because it injected his character into evidence, a reason not urged below. This ground not having been raised, we do not address it. Brooker v. State, 164 Ga. App. 775, 778 ( 298 S.E.2d 48) (1982).
(b) After a directed verdict of acquittal on the probationary license violation charge, defendant moved to strike the exhibits described above and other Department of Public Safety records. He had previously introduced testimony as to his good character and had been extensively cross-examined concerning his driving record and traffic violations. Defendant admitted he had been convicted of driving under the influence.
Now he argues that the state should have reintroduced his traffic record for impeachment purposes after he submitted evidence of his character.
Harm as well as error must be shown affirmatively on the record to authorize the reversal of a conviction. Hazelrig v. State, 171 Ga. App. 942, 943 (1) ( 321 S.E.2d 437) (1984). "Proof of the same facts by legally admissible evidence renders harmless a prior admission of incompetent or inadmissible evidence." Frink v. State, 177 Ga. App. 604, 607 (1) ( 340 S.E.2d 631) (1986). Where objection is to evidence as a whole, if any part is admissible the objection is properly overruled. Beasley v. State, 157 Ga. App. 94 ( 276 S.E.2d 144) (1981). The motion to strike the six exhibits in their entirety was not error.
5. Defendant contends the trial court's instruction concerning the statutory presumptions (OCGA § 40-6-392) arising from a certain quantity of alcohol in the blood violated the federal constitutional standard enumerated in Sandstrom v. Montana, 442 U.S. 510 (99 SC 2450, 61 L.Ed.2d 39) (1979), because it shifted the burden of proof.
The trial court used the statutory language, referring to "the time alleged" in its charge. There is no basis for defendant's argument that the jury might be confused by this instruction, as to the burden of proof regarding alcohol influence at the time of driving.
As to the remainder of the charge, defendant not only acquiesced in it but actively sought it. See McCann v. State, 167 Ga. App. 368 ( 306 S.E.2d 681) (1983) from which the instruction was taken. "Induced error is impermissible." Edwards v. State, 235 Ga. 603, 604 (2) ( 221 S.E.2d 28) (1975).
6. The last enumeration of error complains that the prosecutor read law to the jury and that curative instructions should have been given. According to the record, defendant's objection was sustained and no further relief was sought. Thus, there is nothing about which to complain. Johnson v. State, 170 Ga. App. 433, 437 (5) ( 317 S.E.2d 213) (1984).
Judgment affirmed. Deen, P. J., and Benham, J., concur.