Adams v. State

• Decision Date: 09 May 1977
• Docket Number: No. 53894,No. 3,53894,3
• Citation: 142 Ga.App. 252,235 S.E.2d 667
• Parties: Larry ADAMS v. The STATE
• Court: Georgia Court of Appeals

Page 667

235 S.E.2d 667

142 Ga.App. 252

Larry ADAMS v. The STATE.

No. 53894.

Court of Appeals of Georgia, Division No. 3.

May 9, 1977.

Watson, Brown, Foster & Keller, George T. Brown, Jr., Jonesboro, for appellant.

William H. Ison, Dist. Atty., Clarence L. Leathers, Jr., Michael D. Anderson, Asst. Dist. Attys., Jonesboro, for appellee.

WEBB, Judge.

The accused was convicted of burglarizing a gasoline service station in Jonesboro, possessing a firearm during the commission of the crime of burglary, concealing the identity of a motor vehicle, and on four counts of credit card theft. He was sentenced to prison for terms of 10 years on the burglary count, 5 years on the firearm possession to run consecutive to the sentence on the first count, 2 years on concealing the identity of a motor vehicle to run concurrently with the sentences on the first two counts, and on the four counts of credit card theft 1 year on each, to run concurrently with the sentences on the first three counts, for a total of 15 years. His motion for a new trial was overruled, and on his appeal to this court he enumerates 19 alleged errors.

1. No substantial argument or citation of authority has been made to support the contentions enumerated as errors Nos. 3, 5, 7, 8, 10, 11, 12, 13, 14, 15, 16, and 17 and these will be considered as abandoned. Rule 18(c)(2) of this Court (Code Ann. § 24-3618(c)(2); Peluso v. State, 139 Ga.App. 433(1), 228 S.E.2d 395 (1976) ). The other seven are considered in the order of their presentation.

2. The accused asserts as error number 1 the court's overruling of his objection to the testimony wherein James Cook, whose place was burglarized, said that "We have a lot of theft, you know, batteries and things like that every weekend; a lot of cars parked around there." That was preceded by the statement "(W)e keep a fleet of garbage trucks . . ." The district attorney said the statement was made to explain why Mr. Cook had gone back to his place of business and why his suspicions were aroused upon the sight of a strange car parked where it was not supposed to be.

Evidence which otherwise may be inadmissible in some instances becomes admissible in order to explain conduct. Foster v. State, 72 Ga.App. 237(2a), 33 S.E.2d 598 (1945); Hodnett v. Hodnett, 99 Ga.App. 565, 567, 109 S.E.2d 285 (1959). The instant case is distinguishable from Watson v. State, 137 Ga.App. 530, 224 S.E.2d 446 (1976), cited by the accused, because here the witness was simply explaining why he happened to be there at a particular time when his station was closed. Furthermore, the prosecuting attorney stated to the court in the jury's presence that "We don't contend or intend to indicate to the Jury that these crimes (theft of batteries and things) in any way, shape, form or fashion connect with the two defendants here on trial." We find no merit in this enumerated error.

3. Charged as error number 2 was the court's overruling accused's motion to strike Cook's in-court identification of the accused. Within one hour after the burglary a police officer returned to the gasoline station with Adams and asked Cook if Adams was one of the persons he saw, and Cook replied " Yes, that's the one I saw." Cook had observed the accused under excellent lighting conditions through a plate glass window from about 15 feet away, had reason to remember him as the person who fired upon him, and saw him as he made his flight. Cook's in-court identification of Adams was based upon his view of the accused at the scene of the crime and was not impermissibly tainted. Blackwell v. State, 139 Ga.App. 477, 478(2), 228 S.E.2d 612 (1976).

4. Assigned as error number 4 was the trial court's permitting testimony that the tag number was BPL-656, "since the tag itself would have been the highest and best evidence of the number." Accused cites Code Ann. §§ 38-203 and 38-205. The tag was a metal plate with numbers thereon. "(T)he best evidence rule applies only to the contents of a writing. The rules does not require that chattels be introduced in evidence." Hill v. State, 221 Ga. 65, 67(7), 142 S.E.2d 909, 911 (1965); Sumners v. State, 137 Ga.App. 493, 494, 224 S.E.2d 126 (1976). Code Ann. § 38-203 has no application to the proof required to convict an accused of a criminal offense. Young v. State, 226 Ga. 553, 557(6), 176 S.E.2d 52 (1970).

5. Likewise, there is no merit in alleged error number 6 asserting that no proper foundation had been laid for introduction into evidence of a blown-up photograph of fingerprints. The amount of evidence required for identification of a photograph as a true and accurate representation of what it depicts is left within the discretion of the trial court. Johnston v. State, 232 Ga. 268, 270-1(1), 206 S.E.2d 468 (1974). The witness testified that he took the photographs, did all the work, blew them up, made up the chart, and that they were photographs of Adams' fingerprints.

6. The trial court, in response to an objection to the admissibility of an exhibit, said: "Well, I could hardly say that's irrelevant and immaterial. I think that's for the jury to determine and as I understand it was found in his automobile near a place that was burglarized, with his name on it, and if it represents any circumstance in the case it would be for the jury to determine." (Emphasis supplied). Thereupon, accused moved for a mistrial, and the overruling of that motion is...