Thomas v. State

Beasley, Judge,

concurring specially.

I concur fully in Divisions 1 and 3 of the opinion but, with respect to the other two divisions, must join in the judgment only. I will seek to explain.

In Division 2, the cases cited to support the holding address a hearsay objection. Appellant did not object below on the ground of hearsay and in fact called for it himself during cross-examination on this very subject.

He objected instead on the sole ground that the officer’s description would impermissibly bolster the victim-witness’ testimony. That *577is the same, and only, argument on appeal. He claims that this “restatement” and “reinforcement” and “bolstering” of the victim-witness’ own testimony about her actions and reactions as a participant in the line-up exercise violated federal and state constitutional due process.

Decided October 16, 1986. Robert L. Chandler, for appellant. Bruce L. Udolf, District Attorney, Lee Darragh, Assistant District Attorney, for appellee.

The majority opinion does not address this, although we are required to rule on each proper enumeration of error. OCGA § 5-6-48 (b).

Appellant argues the point but cites no authority to the effect that allowing what is in effect cumulative evidence is reversible error, other than the two due process clauses generally. I am unpersuaded by the argument that due process was denied.

As to Division 4, while I agree that dismissal of the jury before sentencing under OCGA § 17-10-2 (a) seems to be directory and affords defendant no rights to it but is for the convenience of the jury, the ruling of the majority does not address appellant’s argument.

Appellant does not contend that “the indictment, trial, and conviction” were rendered defective by the jury’s remaining where it was, but that the sentencing was reversibly affected. He desires a resentencing hearing at which the court will not be influenced by the presence of the jurors. Its presence, he argues, could have influenced the court “so as to preclude a thorough and complete consideration of facts in mitigation of punishment.” No authority is suggested to support this speculative supposition. The record of the sentencing phase, on the other hand, shows that the court received everything that was offered, called for argument from both sides, asked defendant if he had anything to say, explained to defendant why the sentence imposed was reached, and advised him of his appeal and sentence review panel rights. I perceive no error.

Moreover, appellant did not object to the jury’s remaining unexcused during this proceeding. Failure to object ordinarily presents nothing for review. Saine v. State, 170 Ga. App. 610, 612 (3) (317 SE2d 650) (1984).