Baker v. State, 62469

• Decision Date: 09 February 1982
• Docket Number: No. 62469,62469
• Parties: BAKER v. The STATE.
• Court: Georgia Court of Appeals

Page 280

288 S.E.2d 280

161 Ga.App. 670

BAKER v. The STATE.

No. 62469.

Court of Appeals of Georgia.

Feb. 9, 1982.

Certiorari Denied April 21, 1982.

McMURRAY, Presiding Judge.

Defendant was indicted, tried and convicted in three counts for the offenses of armed robbery, rape and aggravated sodomy. As to Counts 1 and 2 he was sentenced to serve life terms and 20 years as to Count 3 to follow the sentences in Counts 1 and 2. This last sentence was probated following the service of the sentence in Counts 1 and 2. Defendant's motion for new trial was filed, heard and denied. Defendant appeals. Held :

1. The state's evidence disclosed that the female victim and her roommate (male) were attacked in the evening hours in their apartment and robbed at gunpoint by two male assailants. The crimes of rape and aggravated sodomy were performed upon the female victim. The crimes were immediately reported, the police were called and the descriptions of the perpetrators were made to police by the victims at their first opportunity to make a report. The state argues that this information was clearly admissible, that the testimony of a police officer as to the descriptions of the perpetrators was admissible as res gestae based upon the circumstances, citing Bunn v. State, 144 Ga.App. 879, 880(2), 243 S.E.2d 105; Jackson v. State, 225 Ga. 39(5), 46, 165 S.E.2d 711; Estes v. State, 232 Ga. 703, 710(5), 208 S.E.2d 806; Overton v. State, 230 Ga. 830, 836-837(5), 199 S.E.2d 205; Lynch v. State, 234 Ga. 446, 449, 216 S.E.2d 307; Tucker v. State, 243 Ga. 683, 684(3), 256 S.E.2d 365. See also Wallace v. State, 151 Ga.App. 171, 259 S.E.2d 172. But, in all events, the testimony of the officer was with reference to the legal investigation as to the information given to him by the victims who also testified and same was authorized as original evidence under Code § 38-302 "to explain conduct and ascertain motives." Coleman v. State, 127 Ga. 282(1), 56 S.E. 417; Daniel v. State, 66 Ga.App. 59, 17 S.E.2d 91; Brandt v. State, 71 Ga.App. 221, 222(8), 30 S.E.2d 652; Jacobs v. State, 71 Ga.App. 808(2), 32 S.E.2d 403; Burrell v. State, 140 Ga.App. 900, 902(3), 232 S.E.2d 172; Wilson v. State, 246 Ga. 62, 67(2), 268 S.E.2d 895. There is no merit in the complaint that the officer's testimony was hearsay.

2. After the report of these crimes the defendant and another were spotted by another officer in a shopping center who followed them in a police car after they left in an automobile, turning on a blue light and a siren. The automobile pulled into a driveway, the defendant threw a bundle out the window, and the automobile then proceeded further down the street and stopped. The bundle was recovered and found to contain two pistols. This officer identified the defendant as the man he saw toss the bundle out of the automobile window. One of the victims had replied to questions with reference to one of the handguns or weapons found in the bundle that it looked similar or "looks like" the handgun by answering, "Yes." The witness also gave his reasons for identifying the weapon.

Objection was made to the officer's testimony with reference to the arrest of the assailants that the testimony was irrelevant and immaterial in that it had no connection to the events occurring at the time of the alleged crimes. This testimony was allowed over objection and at the completion of the officer's testimony a motion for mistrial was made based upon its irrelevancy, immateriality, and putting the defendant's character in issue with reference to another crime, the same being detrimental and prejudicial requiring the grant of the motion. The trial court overruled the motion since no crime had occurred, only suspicious circumstances in throwing a weapon out of the automobile. The testimony was authorized for identification purposes, the same being circumstantial evidence corroborating the identity of the perpetrator by the victim and was therefore relevant. See Bunge v. State, 149 Ga.App. 712, 716(4), 256 S.E.2d 23; Curtis v. State, 102 Ga.App. 790, 795, 118 S.E.2d 264. The testimony that a gun is similar to that used by a robber is sufficient for its admission. See Code § 38-102; Kates v. State, 152 Ga.App. 29, 30(2), 262 S.E.2d 221; McCranie v. State, 151 Ga.App. 871, 874(3), 261 S.E.2d 779; Sell v. State, 156 Ga.App. 333, 336(6), 274 S.E.2d 723; Rutledge v. State, 152 Ga.App. 755, 759(4), 264 S.E.2d 244. The trial court did not err in disallowing the motion for mistrial and allowing the testimony in evidence for relevant evidence is not objectionable just because it may incidentally put the defendant's character in issue. See Bowles v. State, 155 Ga.App. 753, 272 S.E.2d 595.

3. Defendant next contends that the trial court erred in allowing the testimony of an officer witness testifying as an expert as to a statement one of the perpetrators allegedly made at the time of the alleged crime that they had just broken out of jail and "killing people don't bother us," based upon its alleged irrelevancy, immateriality and prejudicial nature. The defense first contends this evidence was inadmissible as expressing an opinion of an ultimate fact to be decided by the jury. However, as expressed in Smith v. State, 247 Ga. 612, 615, 277 S.E.2d 678, the recent trend in the majority of states has been that "an expert may state his opinion upon an ultimate fact, provided that all other requirements for admission of expert opinion are met." See also King v. Browning, 246 Ga. 46, 47(1), 268 S.E.2d 653; Stewart v. State, 246 Ga. 70, 75(4a), 268 S.E.2d 906. Compare Jones v. State, 232 Ga. 762, 764-766(2), 208 S.E.2d 850. The objection here was merely that the testimony was irrelevant, immaterial and submitted in evidence as another attempt at prejudicing the jury. The testimony was made by the witness as an expert based upon his 13 years of experience that suspects would make assertions to victims during the course of a crime regarding their prior criminal behavior that they had been in jail before and that they had killed other people or had done other things. Accordingly, such testimony would be admissible under Smith v. State, 247 Ga. 612, 615-619, 277 S.E.2d 678, supra. See also Code § 38-1710; Martin v. State, 151 Ga.App. 9, 12-13(5), 258 S.E.2d 711. An expert witness may also give his opinion based on his own observations and experience. We find no merit in this complaint. However, we do not believe that an officer testifying as an expert has a broad discretion to give his opinion and experience with reference to various other crimes such as making undercover drug buys, resulting rip-offs which might occur, or to give specific occasions with reference to such rip-offs in which a suspect contended he...