McAllister v. State

231 Ga. 368 (1973)

202 S.E.2d 54

McALLISTER v. THE STATE.

28346.

Supreme Court of Georgia.

Submitted October 15, 1973.

Decided November 8, 1973.

Philip S. Davi, for appellant.

Lewis R. Slaton, District Attorney, James H. Mobley, Jr., Morris H. Rosenberg, Carter Goode, Arthur K. Bolton, Attorney General, Courtney Wilder Stanton, Assistant Attorney General, B. Dean Grindle, Jr., Deputy Assistant Attorney General, for appellee.

NICHOLS, Justice.

Eugene K. McAllister was indicted, tried and convicted for two counts of armed robbery. His amended motion for new trial was overruled and the present appeal filed. Enumerated as error is the failure of the evidence to support the verdict beyond a reasonable doubt, the admission of evidence, the lack of effective assistance of counsel, and improper argument of counsel for the state. Held:

1. It is well settled that an objection to the admission of evidence may not be raised for the first time on appeal. See Clenney v. State, 229 Ga. 561 (3) (192 SE2d 907). Nor may an objection be raised on appeal where no objection was made during the trial to argument of counsel. See Hart v. State, 227 Ga. 171 (3) (179 SE2d 346), and citations. Accordingly, neither of these enumerations of error presents any question for review. However, a review of the record discloses that the evidence referred to in the enumerated error was admissible as original evidence to explain conduct and comes within an exception to the hearsay rule (Code § 38-302; Estes v. State, 224 Ga. 687 (164 SE2d 108)), and the argument made by the prosecuting attorney was not *369 subject to objection.

2. While another attorney may have selected trial tactics different from those used by the attorney who represented the defendant in the trial court, it cannot be said that such attorney's representation of the defendant was such as to render such representation incompetent or ineffective. See Hart v. State, supra, and citations. Moreover, a review of the transcript shows a vigorous representation by the trial counsel.

3. The evidence adduced by the state, including that of eyewitnesses, authorized the conviction of the defendant for the offenses of armed robbery, and the judgment of the trial court overruling the defendant's motion for new trial must be affirmed.

Judgment affirmed. All the Justices concur, except Ingram, J., who concurs in the judgment only.