Albert v. State
| Decision Date | 07 November 1986 |
| Docket Number | No. 72640,72640 |
| Citation | 180 Ga.App. 779,350 S.E.2d 490 |
| Parties | ALBERT v. The STATE. |
| Court | Georgia Court of Appeals |
Claude W. Albert, Jr., pro se.
G. Theron Finlayson, Dist. Atty., Edward D. Lukemire, Asst. Dist. Atty., for appellee.
In February of 1979 appellant Claude W. Albert, Jr. was tried and convicted of two counts of aggravated assault, armed robbery, attempted armed robbery, attempted rape, two counts of kidnapping, kidnapping with bodily injury and possession of a firearm during the commission of a crime, all of which arose from a single assault on a teenage couple. The sole defense presented at trial by appellant was expert testimony that he was suffering from schizophrenia and was thus legally insane at the time of the incident. Upon appeal to this court the conviction was affirmed in Albert v. State, 152 Ga.App. 708, 263 S.E.2d 685 (1979). The Georgia Supreme Court denied application for certiorari and appellant's petition for writ of habeas corpus was dismissed by the federal district court. Upon appeal of that dismissal, the Eleventh Circuit Court of Appeals reversed the conviction, holding that the admission of evidence at trial of a prior offense for which appellant was tried and acquitted violated the Fifth Amendment guarantee against double jeopardy so as to constitute reversible error, and remanded the case for retrial at the State's discretion. Albert v. Montgomery, 732 F.2d 865 (11th Cir.1984).
At the second trial in October 1984, appellant denied any participation in the incident on which the charges were based. The state presented evidence that at about 10:30 on the evening in question the two victims, Sandra and Anthony, drove to a dirt road in an undeveloped area where they parked. About five minutes after their arrival a white van drove by, and a short time later an armed man approached the driver's side of Anthony's car and demanded money. The man was wearing a tee shirt, blue jeans, boots, yellow gloves similar to Playtex dishwashing gloves, and a pair of women's underpants over his head as a mask. When Anthony blew the horn on his car and he and Sandra began to scream, the assailant told them to be quiet or he would shoot them. After Anthony gave him a ten dollar bill, the man ordered him out of the car, slapped him and forced him at gunpoint into the trunk, stating that he was going to rape Sandra. The assailant forced Sandra into the back seat and drove Anthony's car further down the dirt road until he reached a clearing in the woods, where he ordered Sandra to remove her clothes because he was going to rape her. When she resisted he cursed and beat her, threatening both her and Anthony with a slow death. Sandra became hysterical when the assailant put his pistol to her head, and he struck her on the head with the butt several times. As she wiped away the blood covering her face, he started to get out of the car, telling her "he was going to go finish Anthony." Sandra kicked the back seat forward causing him to fall to the ground, then got out of the car and began wrestling with him for the gun, which had been dropped. As she scratched and clawed the assailant, dislodging the underwear, Sandra was able to see his face. While he tried to replace it and recover the gun, she ran to the trunk of the car and released Anthony. The assailant told them to go into the woods and he would leave their car for them. They fled into the woods but did not return for the car, seeking help at a friend's house instead and notifying the police.
Appellant had been arrested, tried and acquitted of an attempted armed robbery two years previously, and a detective who had been involved in that case told the investigators in the instant case that the description of Sandra and Anthony's assailant fit that of appellant who, the detective said, had been accused of a similar crime. Thus, the investigators arranged for Sandra and Anthony, accompanied by sheriff's deputies to drive around town looking for vans similar to the one they had described. The sheriff intentionally drove them past appellant's house where a white van was parked in his driveway which the victims said "looked a lot like" the van they had seen before they were attacked. At the same time the sheriff's daughter and another deputy went to appellant's home under the pretext of buying a dog from him. (Appellant owned several pet stores.) As the victims were driven past the house a second time, appellant appeared at the front door and Sandra immediately identified him as their assailant. Anthony apparently did not see him. Appellant was arrested shortly thereafter and on the same afternoon, dressed in the same clothes but with the sheriff's shirt covering his distinctly marked tee shirt, he was placed in a line-up where he was separately identified by both Sandra and Anthony as their assailant. Later the same day the police authorities searched appellant's home and confiscated a tee shirt, a pair of blue jeans, work boots and an Italian Baretta automatic pistol. They also took photographs of the tires on his van and photographed and cast tire and shoe impressions at the crime scene. The appellant submitted no evidence and the jury returned a verdict of guilty on four counts: kidnapping, kidnapping with bodily injury, aggravated assault and possession of a firearm during the commission of a crime.
1. Appellant's first three enumerations of error challenge the weight and sufficiency of the evidence and the legality of the verdict on the general grounds. Viewing the evidence in the light most favorable to the prosecution, we find it was sufficient to enable a rational trier of fact to find the appellant guilty beyond a reasonable doubt of the offenses for which he was convicted. See generally, Jackson v. Virginia, 443 U.S. 307, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979); Fluellen v. State, 253 Ga. 285, 319 S.E.2d 451 (1984); Jones v. State, 177 Ga.App. 531(1), 339 S.E.2d 786 (1986); Tims v. State, 168 Ga.App. 409(1), 309 S.E.2d 405 (1983).
2. Appellant made a pretrial motion for funds to hire an investigator and expert witnesses, contending that this was necessary to challenge the state's expert testimony in regard to blood from clothing and fingernail scrapings and the tire and boot casts. At a hearing held on a motion for disclosure, the prosecutor had revealed that all the physical evidence from the case had been lost when the courthouse was remodeled between trials, except for photographs of the boot and tire impressions, and that she did not intend to introduce the photographs of the tire impressions because "they were pictures of the tires of the wrong van." Thus appellant argued that it was crucial to his defense that dissimilarities in the shoe or boot impression photographs be pointed out, as this was "the one piece of critical physical evidence that [tied] him in in any way."
The trial court denied the motion on the grounds that there was little physical evidence left to examine, that any questions as to dissimilarity could be raised by cross-examination, and that this evidence was at best only corroborative and did not add significant weight to the state's case. At trial, the state did introduce the photographs of the tire impressions. On cross-examination of the officer who examined the casts of the tire tracks and photographs of the tires, when defense counsel asked if it had been determined that the tracks had not been made by appellant's van, the officer answered that no such determination had been made. He explained that while the tread design was "very similar," the cast they made "did not turn out sufficient enough to have the Crime Lab comparison made." Defense counsel moved for mistrial, which was denied, and again requested a continuance and funds to hire an expert to examine the photographs. Denial of these motions is enumerated as error.
The Supreme Court established in Sabel v. State, 248 Ga. 10, 17-18(6), 282 S.E.2d 61 (1981) that "[a] criminal defendant on trial for his liberty is entitled on motion timely made to have an expert of his choosing, bound by appropriate safeguards imposed by the court, examine critical evidence whose nature is subject to varying expert opinion." However, the Supreme Court has declined Sims v. State, 251 Ga. 877, 880(4)(c), 311 S.E.2d 161 (1984). We agree with the trial court that these photographs were at best cumulative evidence and, in light of the poor quality of the tire track casts, unlikely to produce any evidence helpful to appellant. Compare Carpenter v. State, 167 Ga.App. 634(1), 307 S.E.2d 19 (1983).
3. Appellant also filed a pretrial motion to bar testimony of the physical evidentiary items that were lost or destroyed between the two trials on the ground that he was thereby denied access to exculpatory evidence in violation of his right to a fair trial. He claims reversible error in the denial of this motion because his opportunity to raise an effective defense was severely curtailed through actions of the prosecution. Specifically, appellant argues that the missing items of clothing seized from his home "most likely would have produced a not guilty verdict," because he could have called attention to the fact that they were not soiled, ripped or blood-stained as could be expected after struggling or fighting on the ground; but that destruction of the clothing made it impossible for him to refute the prosecutor's remarks during closing argument that the reason there were no stains was because the items had been washed.
In California v. Trombetta, 467 U.S. 479, 104 S.Ct. 2528, 81 L.Ed.2d 413 (1984), the United States...
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