1. Admission in evidence of a witness' first offender conviction for violation of the Georgia Controlled Substances Act — for impeachment purposes, is not error. Favors v. State, 234 Ga. 80 (3) ( 214 S.E.2d 645). 2.
See, e.g., Hightower v. Gen. Motors Corp., 255 Ga. 349 ( 338 S.E.2d 426) (1986) (first offender record admissible against a witness in a civil case to disprove or contradict facts testified to by him). We recognize that this new rule creates an inconsistency with our holding in Favors v. State, 234 Ga. 80, 86 (3) ( 214 S.E.2d 645) (1975), that allows impeachment of a State's witness by evidence of a first offender plea. In that case, we created an exception to the general rule authorizing impeachment only for the conviction of a crime involving moral turpitude.
Indeed, the trend in recent years has been towards increasing liberality in allowing such evidence. For example, in Favors v. State, 234 Ga. 80 ( 214 S.E.2d 645) (1975), and Gilstrap v. State, 250 Ga. 814 (2) ( 301 S.E.2d 277) (1983), the Supreme Court held that a certified copy of a criminal conviction was admissible to impeach a prosecution witness in a criminal case, even though the conviction had been entered under the provisions of the First Offender Act (OCGA § 42-8-60 et seq.) and was thus, technically speaking, not a conviction at all. See also Hightower v. Gen. Motors Corp., 175 Ga. App. 112, 113 ( 332 S.E.2d 336) (1985) (allowing First Offender convictions to be introduced for impeachment in civil cases); James v. State, 160 Ga. App. 185 ( 286 S.E.2d 506) (1981) (holding that a criminal conviction may be used for impeachment even though it is not final but is the subject of a pending appeal); and Giles v. Jones, supra (holding that a criminal conviction is relevant and admissible for impeachment notwithstanding the amount of time which has passed since it was entered).
Notwithstanding the fact that under the First Offender Act a conviction does not result unless the person sentenced fails to complete satisfactorily the probationary period, the record of a first offender sentence may be used to impeach a witness in a criminal case. Favors v. State, 234 Ga. 80 ( 214 S.E.2d 645) (1975) (state's witness); Moon v. State, 154 Ga. App. 312 ( 268 S.E.2d 366) (1980) (defendant's witness). See also Miller v. State, 162 Ga. App. 730 ( 292 S.E.2d 102) (1982).
The Georgia Supreme Court has explained that robbery by sudden snatching "occurs where no other force is used than is necessary to obtain possession of the property from the owner, who is off guard, and where there is no resistance by the owner or injury to his person." Edwards v. State, 224 Ga. 684, 686 (1968); see also King v. State, 214 S.E.2d 645 (Ga. App. 1994) (same). While the victim must be conscious of the theft before it is complete, the property need only be taken from the victim's immediate presence, which "extends well beyond his person or his reach," Smith v. State, 635 S.E.2d 385, 386 (Ga. App. 2006), to virtually any "object . . . under his control or responsibility," so long as "the victim was not too far distant," Perkins v. State, 568 S.E.2d 601, 602 (Ga. App. 2002) (citing Welch v. State, 235 Ga. 243, 245 (1975) (immediate presence shown where property taken was in another room more than 15 feet from victim at time of taking)).
The Court of Appeals, in a 5-4 en banc decision, affirmed, holding that a witness in a civil case may be impeached by a witness' prior conviction of a felony or other crime involving moral turpitude, notwithstanding the fact that the conviction was entered on a nolo contendere plea. As authority in support of its holding, the Court of Appeals in Tilley, supra at 100, cited Favors v. State, 234 Ga. 80 ( 214 S.E.2d 645) (1975), and Gilstrap v. State, 250 Ga. 814 (2) ( 301 S.E.2d 277) (1983), wherein this Court held that a prosecution witness in a criminal case could be impeached through use of a criminal conviction, notwithstanding the fact that the conviction had been entered under the First Offender Act, which provides, in relevant part: [T]he defendant shall be discharged without court adjudication of guilt.
(Citations and punctuation omitted.) Favors v. State, 234 Ga. 80, 88 (6) ( 214 SE2d 645) (1975), overruled on other grounds by Matthews v. State, 268 Ga. 798 ( 493 SE2d 136) (1997). "The proper time to request a poll of the jury is when the jury has rendered its verdict, that is, right after the jury has returned a verdictof guilty."
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 S.E.2d 645) (1975). "But in the recent decision of Matthews v. State, 268 Ga. 798, 801-803(4) ( 493 S.E.2d 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. `[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 (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.
It was up to the defendant to timely request that the jury be polled regarding its verdict. See Favors v. State, 234 Ga. 80, 88 (6) ( 214 S.E.2d 645) (1975). Moreover, the trial record does not support the contention that defense counsel was denied the opportunity to seek a poll.
Such a request is not timely if made "after the jury disperses ... or after sentence is passed." Favors v. State, 234 Ga. 80, 88 (6) ( 214 S.E.2d 645) (1975) (citations omitted). (But a defendant may be entitled to a new trial if the judge pronounces sentence before the defendant has time to demand a poll of the jury.