Brockington v. State
Brockington v. State
Opinion of the Court
A jury found Joseph Brockington guilty of one count of selling cocaine and one count of trafficking in cocaine. On appeal, Brockington contends that the trial court erred in permitting the State to try him for two separate offenses and in charging the jury. For reasons that follow, we affirm.
1. The record reveals that in October 1994, Brockington was the target of a Georgia Bureau of Investigation (GBI) undercover narcotics investigation. With the use of a confidential informant, GBI agents purchased cocaine from Brockington on October 11, 1994, and again on October 14, 1994. According to Brockington, in December 1994, a grand jury initially indicted him for only the offense that occurred on October 11 under indictment no. 9400982.
Evidently, the prosecutor was confused regarding the two offenses. He believed that the second indictment related solely to the October 14 offense. And on September 23, 1996 — four days before trial — the State moved to admit evidence of the October 11 offense as a similar transaction during Brockington’s trial for the October 14 crime. Because the State failed to include a copy of indictment no. 9400982 with its notice of intent to introduce similar transactions, the trial court sustained Brockington’s objection to the use of the October 11 incident as a similar transaction.
Immediately before trial, the prosecutor realized his mistake, clarified that the second indictment related to two separate offenses that occurred on different dates, and stated that Brockington was to be tried on both counts. Brockington interposed no objection at this point. On appeal, however, he contends that the trial court erred in permitting the State to try him on both offenses after the prosecutor
As a general rule, a defendant’s failure to make a timely objection precludes appellate review of the error alleged.
2. In a separate enumeration of error, Brockington contends that the trial court erred in instructing the jury on the offense of trafficking. Although Brockington was indicted for “unlawfully possess [ing] a mixture weighing in excess of twenty-eight (28) grams” of cocaine, the trial court instructed the jury that the offense was committed if a person “knowingly sells, manufactures, delivers, or brings into this state, or who is knowingly in possession of 28 grams or more of cocaine.” Brockington maintains that, given this additional instruction, there is a reasonable probability that he was convicted of committing the offense in a manner other than that alleged in the indictment. We disagree.
“If a jury charge recites the entire statutory definition of a crime and the indictment does not, the deviation may violate due process unless a limiting instruction is given.”
Judgment affirmed.
Although this indictment is not included in the record on appeal, the State did not contest this assertion and in fact adopted the facts as set forth by Brockington.
See id.; Ancrum v. State, 197 Ga. App. 819 (1) (399 SE2d 574) (1990).
See Pena v. State, 247 Ga. App. 211, 213 (1) (542 SE2d 630) (2000) (failure to timely object to improper testimony); Wilder v. State, 243 Ga. App. 807, 808 (3) (534 SE2d 487) (2000) (failure to timely object to State’s closing argument); Spivey v. State, 186 Ga. App. 236, 238 (6) (366 SE2d 838) (1988) (failure to timely object to voir dire of jurors).
(Punctuation omitted.) Rutledge v. State, 237 Ga. App. 390, 394 (6) (515 SE2d 1) (1999).
(Punctuation omitted.) Gresham v. State, 239 Ga. App. 280, 281 (521 SE2d 207) (1999).
Case-law data current through December 31, 2025. Source: CourtListener bulk data.