THORNE v. THE STATE, 246 Ga. App. 741

Andrews, Presiding Judge. John Wayne Thorne appeals from the judgment of conviction entered on a jury verdict finding him guilty of the armed robbery of a convenience store. 1. The State produced testimony from a cashier at the store who testified that she saw Thorne in the store twice on the night of the robbery. In the first encounter, the cashier testified that Thorne approached her to buy some beer, but left after saying he did not have enough money to make the purchase.

The cashier testified that the second encounter occurred about three hours later when Thome returned to the store and stole about $160 from the cash register while holding her at knifepoint. The cashier identified Thorne as the robber during a subsequent lineup, on a videotape taken by the store’s camera system, and during the trial of the case.

In support of the cashier’s eyewitness identification, the State also introduced into evidence the continuous videotape taken by the store’s camera system on the night of the robbery which clearly showed the robbery, the robber, and the robber’s visit to the store about three hours prior to the robbery. A police investigator testified that one of Thome’s friends identified him as the robber on the videotape. Although Thorne presented an alibi defense, the cashier’s eyewitness identification and the videotape showing the commission of the robbery provided overwhelming evidence of guilt.

The evidence was clearly sufficient for the jury to find that Thorne was guilty of the armed robbery beyond a reasonable doubt. Jackson v. Virginia, 443 U. S. 307 (99 SC 2781, 61 LE2d 560) (1979). 2. Thorne claims the trial court should have sua sponte declared a mistrial after a police investigator testified on direct examination by the prosecutor that Thome’s own defense counsel made statements to the investigator which indicated that defense counsel believed Thorne was guilty.

Thome argues that, even in the absence of a proper objection or a motion for a mistrial, this was “plain error” which violated his attorney-client privilege, resulted in ineffective assistance of counsel, and requires reversal of the conviction. During direct examination of the police investigator, the prosecutor asked the investigator to name persons who had identified Thorne as the robber of the convenience store from a review of the videotape taken during the robbery by the store’s camera system.

The following testimony and colloquy took place in the presence of the jury: [PROSECUTOR:] In terms of everything you’ve mentioned you had several different people including his best friend that identified him, don’t you? [INVESTIGATOR:] That’s correct. [PROSECUTOR:] Did anybody identify anyone else except him to you? [INVESTIGATOR:] Did anyone else identify . . . identify him? [PROSECUTOR:] Yes. [INVESTIGATOR:] Yes, sir, ... I mean the [store] clerk identified him. [PROSECUTOR:] Yes. [INVESTIGATOR:] Allen Stubblefield identified him. [PROSECUTOR:] Yes. [INVESTIGATOR:] Mr.

Kennedy (Thorne’s defense counsel) looked at him and said it was him on tape. [KENNEDY:] No, sir. No, sir. [I] looked at him and said that resembles him on tape. [THE COURT:] The Court will. . . . Mr. Kennedy, you can raise an objection, but not . . . don’t get in an argument with the witness. [KENNEDY:] Well, I object to that. That’s not what I told this officer, and he knows it. . . .

And I resent . . . him characterizing something I told him as something other than what I told him. [THE COURT:] I can’t resolve that issue, but I’ll give you an opportunity to explain that to the jury as well. [KENNEDY:] Thank you, Judge. [THE COURT:] Do you want to correct what you’ve just said? [INVESTIGATOR:] Mr. Kennedy stated that he can’t believe that John Thorne would go to court with this. Quote, unquote. Thereafter, defense counsel made no further objection or motion for a mistrial, and the trial court took no curative action.

Although this Court will not generally consider issues not properly raised and ruled upon in the trial court, an exception exists in cases of “plain error” which is “so clearly erroneous as to result in a likelihood of a grave miscarriage of justice or which seriously affects the fairness, integrity or public reputation of a judicial proceeding.” (Citation and punctuation omitted.) Lynd v. State, 262 Ga. 58, 61, n. 2 (414 SE2d 5) (1992). Almond v. State, 180 Ga. App. 475, 478-481 (349 SE2d 482) (1986).

The evidentiary use by the State of the alleged statements made by defense counsel to the investigator implicating Thorne in the robbery, along with defense counsel’s own statement at trial as to what he told the investigator about Thome, was a violation of Thorne’s attorney-client privilege. Although it does not appear that the prosecutor was attempting to elicit this testimony from the investigator, the State must nevertheless exercise extreme caution to avoid prejudicial error by breach of the defendant’s attorney-client privilege. Williams v. State, 258 Ga. 281, 285 (368 SE2d 742) (1988).

In Almond, we found that a similar violation of the attorney-client privilege was “plain error” which seriously affected the fairness, integrity, or public reputation of the proceedings and required reversal even in the absence of any objection. Almond, 180 Ga. App. at 480-481. However, despite the erroneous breach of the attorney-client privilege in the present case, we decline to reverse the conviction under the “plain error” rule.

Because there was overwhelming evidence of Thorne’s guilt, we find no basis for concluding that the error seriously affected the fairness, integrity, or public reputation of the proceedings and find no grave miscarriage of justice in refusing to notice the forfeited error. See Johnson v. United States, 520 U. S. 461, 470 (117 SC 1544, 137 LE2d 718) (1997) (refusing to reverse under the federal “plain error” rule where there was overwhelming evidence of guilt). “Indeed, it would be the reversal of a conviction such as this which would have that effect.” Id.

As to Thorne’s ineffective assistance of counsel claims, even if defense counsel's conduct was deficient, no reversal of the conviction is required because there was no reasonable probability that the outcome of the proceedings would have been different but for the deficiency. Strickland v. Washington, 466 U. S. 668 (104 SC 2052, 80 LE2d 674) (1984). 3. Because no objections were made at trial, Thorne’s claims related to alleged improper impeachment and interjection of his character into evidence were not preserved for appellate review. Judgment affirmed. Ellington, J., concurs. Ruffin, J., concurs specially.

We note that in earlier questioning about who had seen the videotape, the prosecutor cautioned the investigator that he was not asking about other investigators or lawyers.