Camp v. State

• Decision Date: 06 April 1983
• Docket Number: No. 65434,65434
• Citation: 166 Ga.App. 208,303 S.E.2d 540
• Parties: CAMP v. The STATE.
• Court: Georgia Court of Appeals

Page 540

303 S.E.2d 540

166 Ga.App. 208

CAMP v. The STATE.

No. 65434.

Court of Appeals of Georgia.

April 6, 1983.

Charles W. Field, Marietta, for appellant.

Thomas J. Charron, Dist. Atty., Thomas A. Cole, Asst. Dist. Atty., for appellee.

McMURRAY, Presiding Judge.

Defendant was convicted of two offenses of armed robbery involving the same business on separate dates. His motion for new trial was filed, amended, heard and denied. Defendant appeals. Held:

1. Defendant's first enumeration of error is that the trial court erred in admitting the results of a polygraph test. There was an agreement as to the admissibility of such tests signed by the defendant's former counsel (now appellate counsel although he did not try the case but did represent defendant at the sentencing phase) and initialed by the assistant district attorney, although it was drawn in the form of a consent order which the court never signed. Defendant contends that the terms of the agreement were not strictly adhered to as required by Chambers v. State, 146 Ga.App. 126, 245 S.E.2d 467, i.e., never signed by the court or the district attorney. However, the instrument itself shows the initials of the assistant district attorney. During a motion hearing prior to the beginning of trial defendant's former (now appellant) counsel admitted that he had drawn the document consenting to the polygraph test to be taken at the state's expense (which was so accomplished) and that the assistant district attorney had stated she "would stipulate to a polygraph." Examination of the document drawn as a consent order states in very general terms "that the results of said examination, or any other such examination, shall be admissible by either the State or the Defense in any proceeding on this indictment." We find no violation of the rule set forth in State v. Chambers, 240 Ga. 76, 80, 239 S.E.2d 324, authorizing expert testimony with reference to the results of a polygraph examination in certain situations. Further, we find no deviation from the spirit of the agreement as was thereafter found in Chambers v. State, 146 Ga.App. 126, 129, 245 S.E.2d 467, supra. There is no merit in this complaint.

During the examination of the expert witness who conducted the polygraph test he made reference to the reactions to the charts and the difference on the patterns, for instance "the breathing pattern," stating there was a reaction on the chart. When the witness was requested to draw the kind of pattern that he saw on the chart for the jury, defense counsel objected that the highest and best evidence of the pattern in the charts would be the charts themselves. This objection was overruled by the court who stated that the witness was an expert and the court would at a later time instruct the jury further on the relevancy of expert testimony or what credit to give this testimony. See in this connection Burke v. State, 153 Ga.App. 769, 770(4), 266 S.E.2d 549, wherein an expert was allowed to refer to tests performed under his direction and control as not violative of the best evidence rule. Certainly, the state's expert witness could explain to the jury as to the operation of the polygraph machine and refer to the charts without introducing the charts into evidence. There is no merit in this complaint. Further, the trial court in no wise expressed an opinion as to this witness' testimony in overruling the objection made. We note in the charge to the jury, the trial court in following State v. Chambers, 240 Ga. 76, 80, 239 S.E.2d 324, supra, charged the jury concerning the meaning of the polygraph examination evidence.

The trial court did not err in allowing the expert's testimony with reference to the results of the test even though the results thereof were not positive and the expert's testimony was that in his opinion based on the charts the defendant was not completely truthful with the examiner in regard to the answers. See Miller v. State, 150 Ga.App. 597, 601(7), 258 S.E.2d 279. All enumerations of error with reference to the admission of the polygraph test are simply without merit. Compare Porterfield v. State, 150 Ga.App. 303(1), 257 S.E.2d 372, and Lawson v. State, 162 Ga.App. 579, 580, 292 S.E.2d 421.

2. We find no merit in the enumeration of error complaining that during the pretrial oath of the jury that the court in any wise overemphasized the charges against the defendant resulting in prejudice to him. See Gatlin v. State, 236 Ga. 707, 708(2)(3), 225 S.E.2d 224. We find nothing in the cases cited by the defendant such as Johnson v. State, 140 Ga.App. 284, 231 S.E.2d 87, and Carter v. State, 246 Ga. 328, 271 S.E.2d 475, which requires a reversal here.

3. While the application of the rule of sequestration, after it has been invoked, would generally require a witness remaining in the courtroom to testify first; nevertheless, a proper explanation was given as to why the state witness was excepted from the sequestration rule as the witness was necessary for the orderly presentation of the case. Further, there was no timely objection at trial by defendant before or when such explanation was given. We find no merit in this complaint. See McCranie v. State, 151 Ga.App. 871, 875(5), 876, 261 S.E.2d 779; Parham v. State, 135 Ga.App. 315, 320-321(8), 217 S.E.2d 493; Jarrell v. State, 234 Ga. 410, 421(6), 216 S.E.2d 258.

4. We find no merit in defendant's complaint that the state improperly injected his character into evidence by way of testimony from a police officer who prepared the photographic lineup in stating that the photograph of the defendant had been obtained from an old mug shot. First of all, defendant made no objection to the admission of the officer's statement during the trial and he cannot now object for the first time. See Smith v. State, 116 Ga.App. 45, 48(2), 156 S.E.2d 380; Sides v. State, 213 Ga. 482, 488(5), 99 S.E.2d 884. But even assuming timely objection, defendant's argument lacks merit. See Woodard v. State, 234 Ga. 901, 902(2), 218 S.E.2d 629. The mere statement in evidence of the use of a "mug shot" of the defendant does not inject his character in evidence.

5. It is contended that the trial court erred in allowing the assistant district attorney to impermissibly attempt to impeach a defense witness by questioning that witness as to prior arrests, that is, as to whether she had ever been arrested under a prior married name. Ramsey v. State, 145 Ga.App. 60, 61-62(4), 243 S.E.2d 555 (revd. on other grounds, Id., 241 Ga. 426, 246 S.E.2d 190), and cases cited, requires the impeachment of a witness by proof that the witness had been convicted of a crime involving moral turpitude, although other means of impeachment may be used. However, we find no objection at the time this defense witness was being cross-examined, and there is no merit in this complaint.

Objection was also made to a cross-examination question by defense counsel as to whether a state witness had been arrested...