Baxter v. State, 61914

• Decision Date: 22 September 1981
• Docket Number: No. 61914,61914
• Citation: 159 Ga.App. 632,284 S.E.2d 649
• Parties: BAXTER v. The STATE.
• Court: Georgia Court of Appeals

Page 649

284 S.E.2d 649

159 Ga.App. 632

BAXTER v. The STATE.

No. 61914.

Court of Appeals of Georgia.

Sept. 22, 1981.

Charles E. Muskett, East Point, Richard R. Kirby, Atlanta, for appellant.

Lewis R. Slaton, Dist. Atty., Joseph J. Drolet, H. Allen Moye, J. Wallace Speed, Asst. Dist. Attys., for appellee.

CARLEY, Judge.

Appellant appeals from his conviction of armed robbery.

1. After a jury had been selected but before it had been sworn, a juror informed the trial court that he knew appellant's father. The state requested and was allowed a peremptory challenge of this juror. Appellant's arguments that this procedure was erroneous are clearly meritless. White v. State, 154 Ga.App. 527, 268 S.E.2d 790 (1980).

2. Appellant argues that it was error to admit into evidence the result of his "inconclusive" polygraph test. The contention that the results were "inconclusive" is premised upon appellant's assertion that the administrator of the test could only "speculate" that the polygraph machine was properly calibrated on the day the test was conducted. Appellant's characterization of the witness' testimony is not borne out by the transcript. The witness in fact testified that the polygraph machines he uses are calibrated for accuracy "[e]very day, every morning" and that he was "sure" the machine he used in conducting appellant's test was calibrated in accordance with this schedule, it being "the normal course of business" to do so. This testimony was probative, not speculative. "Generally, a witness who has no distinct and independent recollection of the details of a fact occurring in the routine course of his business may testify to the fixed and uniform habit in such cases and state that he believes that what was done in a given transaction was in accordance with habit. [Cits.]" Continental Cas. Co. v. Wilson-Avery, 115 Ga.App. 793, 797-798, 156 S.E.2d 152 (1967). "The probative value of such evidence is for the jury to determine. [Cits.]" Fletcher Emerson Management Co. v. Davis, 134 Ga.App. 699, 701(2), 215 S.E.2d 725 (1975). This enumeration of error is without merit.

3. Citing Chambers v. State, 146 Ga.App. 126, 245 S.E.2d 467 (1978), appellant urges that it was error to admit the results of his polygraph test because it was not conducted in strict compliance with the stipulation concerning the administration thereof. In support of this assertion appellant contends that, in violation of the terms of the stipulation between himself and the state, he was denied the right to have counsel present at the test. Pretermitting consideration of what effect appellant's failure to object at trial to the admission of the polygraph test on this ground has on appeal, a review of the transcript demonstrates that appellant's underlying assertion that the stipulation included a right to presence of counsel is inaccurate. The document appellant characterizes as the "stipulation" is, in fact, the consent and waiver of rights form signed by appellant on the day of the test by which he "was advised of his Miranda rights, including his right to have his attorney...