Chisholm v. State

Judge Harold R. Banke,

dissenting.

I respectfully dissent as to Division 2 because the evidence of *842Chisholm’s guilt was so overwhelming that any error was rendered harmless beyond a reasonable doubt. Stephens v. State, 261 Ga. 467, 469 (6) (405 SE2d 483) (1991) (analyzing error in admission of similar transaction evidence for harmless error); Howard v. State, 215 Ga. App. 342, 344 (2) (450 SE2d 824) (1994) (the erroneous admission of similar transaction evidence may be harmless).

Notwithstanding the majority’s assertion to the contrary, Belt v. State, 227 Ga. App. 425 (1) (489 SE2d 157) (1997) (cert, granted), does not preclude the application of harmless error analysis to similar transactions. Belt never mentioned that issue. Moreover, Belt failed to garner a majority and therefore is not binding precedent. Court of Appeals Rule 33 (a). Thus, Belt did not and could not implicitly overrule Howard, 215 Ga. App. at 344 (2), or the long line of cases applying harmless error analysis to similar transaction issues. Id.; see, e.g., Jones v. State, 226 Ga. App. 721, 724 (1) (487 SE2d 618) (1997); Tam v. State, 225 Ga. App. 101, 102-103 (2) (483 SE2d 142) (1997); Morris v. State, 212 Ga. App. 779, 780 (1) (442 SE2d 792) (1994); Higginbotham v. State, 207 Ga. App. 424, 427 (4) (428 SE2d 592) (1993); Little v. State, 202 Ga. App. 7, 8 (1) (413 SE2d 496) (1991). Even more perplexing, the majority ignores Supreme Court authority applying harmless error analysis to similar transaction issues. Stephens, 261 Ga. at 469 (6); see Ragan v. State, 264 Ga. 190, 192 (3) (442 SE2d 750) (1994).

Here, the evidence of Chisholm’s guilt can only be described as overwhelming. Chisholm entered the store twice, and both the clerk and her co-worker clearly identified him as the robber. The officers who chased and finally apprehended Chisholm clearly observed his actions. In fact, after Chisholm drove his car into one of the officer’s legs, that officer dove into Chisholm’s window in an attempt to grab the car keys. The officers personally witnessed Chisholm driving under the influence, attempting to elude, and committing aggravated assault on and obstruction of law officers. They positively identified him as the perpetrator. Moreover, Chisholm confessed that the cocaine he used on the night of the offenses so blurred his perceptions that he could not say whether he committed the robbery. Under these circumstances, reversal is inappropriate due to the high probability that the error did not contribute to the guilty verdict, particularly as to the felony obstruction charge. Ragan, 264 Ga. at 192 (3); Bowdry v. State, 211 Ga. App. 626, 627 (1) (440 SE2d 59) (1994). “ ‘Justice is not served by reversing criminal convictions when error is harmless — an accused is entitled only to a fair trial, not a perfect one.’ [Cit.]” Ross v. State, 195 Ga. App. 624, 627 (4) (394 SE2d 418) (1990).

I am authorized to state that Chief Judge Andrews and Presiding Judge McMurray join in this dissent.

*843Decided March 13, 1998 Reconsideration dismissed April 1, 1998 Ross, Wallace & Hammond, John C. Hammond, T. Brittan Hammond, for appellant. Dennis C. Sanders, District Attorney, Michael E. Eberhardt, William L. Hale, Assistant District Attorneys, for appellee.