Carroll v. State, 75712
| Decision Date | 17 February 1988 |
| Docket Number | No. 75712,75712 |
| Citation | 366 S.E.2d 232,185 Ga.App. 857 |
| Parties | CARROLL v. The STATE. |
| Court | Georgia Court of Appeals |
Sara F. Miller, Athens, for appellant.
Harry N. Gordon, Dist. Atty., Richard J. Weaver, Asst. Dist. Atty., for appellee.
Carroll appeals from the denial of his motion for new trial following his conviction of burglary.
The victim, Elbert Sweeten, operated a used car business out of a mobile home which also served as his living quarters. For a short time prior to the burglary, the appellant had been employed by Sweeten as a mechanic. During that period, the appellant had resided, with Sweeten's permission, in a van which was parked inside a garage located on the premises. Since there were no bathroom facilities in the van, Sweeten had permitted the appellant access to the bathroom in his mobile home. Also, Sweeten would invite the appellant into the mobile home on occasion to drink beer with him after working hours.
Sweeten testified that on the evening the offense occurred the appellant had been in the trailer drinking beer at his invitation but that when the appellant "had done drunk too much," he told him to leave, advising him to go to the van and sleep. The appellant left, whereupon Sweeten locked the mobile home and departed the premises for about an hour. When he returned, he heard a noise emanating from the trailer and, through a window, observed the appellant sitting in a chair near the desk in the room that served as the office. Sweeten entered the trailer, ordered the appellant to leave permanently, and looked around to see if anything had been taken. He observed that four blank checks had been removed from a checkbook in his desk drawer and that a cold, partially consumed bottle of beer had been left on the floor near the desk. Believing that the noise he had heard had been the slamming of the desk drawer, Sweeten reported the incident to the police, who apprehended the appellant shortly thereafter. The checks were never located. Held:
1. The appellant submits that the trial court committed reversible error by allowing Sweeten to testify as follows: "I opened the [drawer] where I keep my checkbooks, and he [the appellant] had took four checks." This testimony was allowed over the appellant's objection that it was conclusory and was without a proper foundation.
Marshall v. State, 154 Ga.App. 327, 328, 268 S.E.2d 383 (1980). Although expert opinion testimony on an ultimate issue may be permitted where the conclusion of the expert is one which jurors would not ordinarily be able to draw for themselves, see Smith v. State, 247 Ga. 612, 277 S.E.2d 678 (1981), Fordham v. State, 254 Ga. 59, 325 S.E.2d 755 (1985). In the present case, the objected to testimony should not have been allowed as it went to the ultimate issue...
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