Farley v. State

• Decision Date: 28 February 1978
• Docket Number: No. 1,No. 55053,55053,1
• Citation: 145 Ga.App. 98,243 S.E.2d 322
• Parties: Sidney FARLEY v. The STATE
• Court: Georgia Court of Appeals

Page 322

243 S.E.2d 322

145 Ga.App. 98

Sidney FARLEY v. The STATE.

No. 55053.

Court of Appeals of Georgia, Division No. 1.

Feb. 28, 1978.

Copelan & Kopp, Jesse Copelan, Jr., Eatonton, for appellant.

Joseph H. Briley, Dist. Atty., Gray, for appellee.

BIRDSONG, Judge.

Appellant Farley was convicted of the offense of rape and murder. He was sentenced to life for the murder and 20 years for the rape. His motion for new trial was granted as to the offense of murder but denied as to the offense of rape. This appeal relates to the conviction for rape only. Farley asserts 17 enumerations of error in his appeal. Held :

1. The first five enumerations of error deal with confession issues. Farley was interrogated on different occasions by different officers and made two different statements. As to the first statement, an extensive Jackson-Denno hearing was held in which it was developed that Farley was mentally retarded and could neither read nor write. There was further evidence that Farley characteristically wanted to please authority figures and this would likely cause him to agree to whatever those authority figures desired him to admit. At the hearing outside the presence of the jury, evidence was admitted showing an IQ level of 45, a mental age of less than five years, with an equivalency of a kindergarten child. Opposed to this was the testimony that Farley was rational, appeared to understand the questions as well as the explanation of his rights, and that his deportment gave every appearance of understanding and voluntariness. There is no dispute that all Miranda warnings were administered. Additionally, in spite of an order by the trial court to produce all statements made by the accused, it developed that the state had procured a signed waiver of rights form at the time of the taking of the statement but which was not brought to the attention of the defense counsel until the Jackson-Denno hearing. The trial court expressly refused to admit or consider the waiver form. Appellant objected to admission of this confession, alleging that the state had not shown voluntariness, the ability of Farley to understand his rights, and further because the state had not produced the waiver form that accompanied the taking of the statement as ordered by the court.

The trial court did not commit error in allowing this confession into evidence for consideration by the jury. A mere showing that one who confessed to a crime may have suffered from some mental disability is not a sufficient basis upon which to exclude a statement. Lego v. Twomey, 404 U.S. 477, 92 S.Ct. 619, 30 L.Ed.2d 618; Corn v. State, 240 Ga. 130, 136, 240 S.E.2d 694; Goodwin v. State, 236 Ga. 339, 223 S.E.2d 703. The trial judge's determination of Farley's comprehension of his rights and the voluntariness of his resultant statement together with its admissibility, although based upon conflicting evidence, was reasonably supported by a preponderance of the evidence as required by High v. State, 233 Ga. 153, 210 S.E.2d 673, was not clearly erroneous, and thus will not be disturbed. Phillips v. State, 238 Ga. 497, 498, 233 S.E.2d 758; Rush v. State, 137 Ga.App. 387, 389, 224 S.E.2d 39. The state's belated attempt to produce the waiver of rights form is error without harm. It contributed nothing to the issue of guilt or innocence, and was not given to the jury nor utilized by the trial court in determining the question of voluntariness. Only one who has been harmed is in a position to complain. Dismuke v. State, 142 Ga.App. 381, 382, 236 S.E.2d 12.

As to the second statement, the factual situation is different. Appellant called a witness in his own behalf who testified that when originally questioned by the witness, Farley denied all complicity in the crimes charged. Upon cross examination by the state, the witness further testified that Farley had ultimately admitted having had intercourse with the victim. This statement was admitted over an objection that no Jackson-Denno hearing was being afforded to determine voluntariness. However, the transcript clearly shows that the witness gave Farley a full Miranda warning prior to the statement, that the state offered the admission for the limited purpose of impeachment and rebuttal to the statement that Farley had taken no part in the incident, and the trial court on two occasions limited the testimony to its impeaching value and as evidence in rebuttal.

We view the purpose of a Jackson-Denno hearing and the requirement for the giving of Miranda warnings, as one allowing the trial court in the first instance, as a matter of law, and the jury, ultimately, as a matter of fact, to assure themselves of the voluntariness of a statement made by an individual and offered as a truthful but inculpatory admission against interest, and thus not violative of the constitutional prohibition of involuntary self-incrimination. Where the statement is not offered as a truthful admission against interest, the overriding need for a determination of voluntariness subsides. "If on the trial of his case the defendant takes the witness stand and swears to a state of facts contrary to his prior statements, they may be given in evidence solely for purposes of impeachment, the burden being on the court to caution the jury that such evidence is to be considered only for the purpose of assessing the defendant's credibility and not to establish his guilt of the offense for which he is on trial . . . ." Colbert v. State, 124 Ga.App. 283(2), 183 S.E.2d 476. This is true even in the absence of a showing of compliance with Miranda. Hancock v. State, 131 Ga.App. 485, 487(2), 206 S.E.2d 104. See Williams v. State, 239 Ga. 12, 14(4), 235 S.E.2d 504; Alexander v. State, 138 Ga.App. 618, 620(2), 226 S.E.2d 807.

Appellant also contends that the state did not deliver copies of this statement to the defense. Contrary to that assertion, the transcript shows that the state gave all that it had concerning this statement to the defense as soon as it (the state) came into possession of the information. We are satisfied that the first five enumerations of error are without merit.

2. Appellant complains in his next five enumerations of error (6-10) that the trial court erroneously admitted certain evidence. In enumerations 7 through 10, appellant alleges that there was a gap in the chain of custody as to certain real evidence and, further, that the trial court erred in allowing the state to perfect its proof as to these exhibits after the court had initially ruled out the evidence for lack of identification and thereafter reversed its rulings and allowed the evidence to be admitted.

The evidence offered by the state consisted of clothing, bed sheets, pieces of material and human hairs. Each item was identified as the item originally seen and analyzed by the state's expert. The testimony was that these were the specific items originally observed and not of a kind. It is the law that unlike fungible items, distinct physical objects which can be identified upon mere observation require no custodial proof for their admission. Ramey v. State, 238 Ga. 111, 113(4), 230 S.E.2d 891; Hayes v. State, 138 Ga.App. 223, 225, 225 S.E.2d 749; Floyd v. State, 137 Ga.App. 181(2), 223 S.E.2d 230. As to the other items, the evidence showed that the witness was able to account for these particular human hairs. It is not necessary that the state negate all possibility of tampering but only that it show it is reasonably certain there was no alteration. When there is only a bare speculation of tampering, it is proper to admit the evidence and let what doubt remains go to its weight. Johnson v. State, 143 Ga.App. 169, 170, 237 S.E.2d 681; Meadows v. State, 135 Ga.App. 758, 760, 219 S.E.2d 174. As to allowing the state to introduce further evidence after initially rejecting the exhibits, but before the state had rested its case, the order of presentation of evidence is a matter that rests within the trial court's discretion and will not be controlled in the...