Strickland v. State

McMurray, Presiding Judge.

Defendant, indicted as a repeat offender under OCGA § 17-10-7 (b), was convicted of robbery, OCGA § 16-8-40, for taking a .22 caliber rifle away from George Hill. He appeals. Held:

1. Defendant first challenges his sentence as a recidivist on the ground that his 1980 plea to aggravated assault was not entered with full constitutional warnings and waiver, in violation of Boykin v. Alabama, 395 U. S. 238 (89 SC 1709, 23 LE2d 274) and Andrews v. State, 237 Ga. 66 (226 SE2d 597). This conviction was one of three *445cited in the indictment as forming the basis for the repeat offender charge. See Aldridge v. State, 158 Ga. App. 719, 721 (4) (282 SE2d 189). The other two, earlier ones for felony theft (1966) and burglary (1970) were not challenged.

The 1980 plea transcript shows that defendant was represented by counsel and pled guilty to two charges, aggravated assault and a reduced charge of criminal trespass. It was a negotiated plea. Among other things, the court ascertained that defendant knew he had a right to a jury trial and desired to waive it.

In our opinion, the record was sufficient to demonstrate that defendant freely and voluntarily entered the 1980 guilty plea with an understanding of the consequences. Defendant clearly understood and waived his right to a jury trial. He complains that he was not advised of other rights associated with a jury trial, most notably, the right against self-incrimination, the right to confront witnesses and the right to assistance of counsel. However, defendant does not point out how he was prejudiced by the failure of the trial court to advise him of those rights. Defendant was represented by counsel at the guilty plea hearing and the transcript of the hearing shows that he discussed “the matter” with counsel before entering the plea. In addition, the record shows that defendant was “seasoned,” having been tried by juries on two previous occasions. Given these facts, it is our view that any error in failing to advise defendant of his other rights was harmless beyond a reasonable doubt. Goodman v. Davis, 249 Ga. 11, 14 (287 SE2d 26).

2. Defendant contends the trial court erred in curtailing the cross-examination of the victim. We disagree. Put in context, defense counsel’s cross-examination was merely an attempt to elicit evidence concerning specific acts of violence by the victim against third parties. Such evidence is inadmissible. McFadden v. State, 171 Ga. App. 447, 448 (2) (319 SE2d 878); Guevara v. State, 151 Ga. App. 444, 448 (5) (260 SE2d 491). The trial court properly prohibited defense counsel from doing indirectly what he was prohibited from doing directly.

3. Defendant also contends the trial court erred by allowing a witness, Freeman, to testify about certain statements made by defendant on the day after the robbery. This contention is without merit. The evidence was admissible “to show motive, or to show a course of conduct pointing toward and leading to the crime or to the concealment of the crime or the identity of the perpetrator thereof . . .” Spurlin v. State, 228 Ga. 2, 5 (4) (183 SE2d 765); Graham v. State, 171 Ga. App. 242, 254 (14) (319 SE2d 484).

4. In his final enumeration of error, defendant asserts the trial court erred by refusing to grant a new trial as a consequence of juror irregularity. (During a break in the trial, the juror handed the prosecutor a written joke about lawyers. The juror did not conceal his act. *446It took place in the courtroom in the presence of the trial judge and defense counsel.)

In our opinion, any irregularity in the conduct of the juror was inconsequential; it did not require the grant of a new trial. Smith v. State, 218 Ga. 216, 222, 223 (126 SE2d 789). Moreover, the testimony of the juror amply demonstrated that defendant was not prejudiced or harmed by the irregularity. See Hardy v. State, 242 Ga. 702, 704 (3) (251 SE2d 289). Compare Lamons v. State, 255 Ga. 511 (340 SE2d 183).

Judgment affirmed.

Birdsong, C. J., Banke, P. J., and Pope, J., concur. Deen, P. J., concurs in the judgment only. Carley, Benham and Beasley, JJ., concur in part and dissent in part. Sognier, J., dissents.