Felker v. State, 54835
| Decision Date | 04 January 1978 |
| Docket Number | No. 54835,No. 1,54835,1 |
| Citation | 144 Ga.App. 458,241 S.E.2d 576 |
| Parties | Wayne FELKER v. The STATE |
| Court | Georgia Court of Appeals |
Groover & Childs, Denmark Groover, Jr., Macon, for appellant.
Stephen Pace, Jr., Dist. Atty., Perry, for appellee.
Following trial on a two-count indictment alleging rape and aggravated sodomy, the jury convicted the defendant of aggravated sodomy only. Held :
1. The defendant testified in his own behalf and denied having any intercourse with the victim and that he did not by force commit sodomy with her. On cross examination, he was asked if he had oral or anal sex with the victim. Defendant answered During his argument the district attorney reminded the jury of this answer. Defendant objected on the ground that the district attorney had improperly commented on the defendant's exercise of his "constitutional rights." Defendant by electing to testify subjected himself to cross-examination. Code § 38-415. He elected and was permitted to answer the question in this manner. The district attorney did not make an improper comment on defendant's exercise of his right to remain silent or to claim his right against self-incrimination. Prohibitions against commenting on a defendant's exercise of his privilege under the Fifth Amendment or on his failure to testify do not apply when the defendant testifies in his own behalf. Gosha v. State, 239 Ga. 37, 235 S.E.2d 527.
2. State's Exhibits 44-47, inclusive, were admitted over objection. The exhibits included magazines showing natural and unnatural sex acts and other apparent sexual devices and paraphernalia designed for stimulation and film, all of which were found by the police in defendant's trailer. These exhibits may have a tendency to show bent of mind toward sexual activity. Curtis v. State, 102 Ga.App. 790, 795, 118 S.E.2d 264. But in any event the rule in Georgia is that if the admissibility of evidence is doubtful, it should be admitted and its weight and effect should be left for the jury's determination. Bond v. State, 104 Ga.App. 627, 632, 122 S.E.2d 310; Patterson v. State, 233 Ga. 724, 725(2), 213 S.E.2d 612.
3. Error is alleged in the admission of testimony of an investigator from the district attorney's office with reference to an out-of-court statement obtained from the defendant after defendant had retained counsel and in the absence of his counsel. In Pierce v....
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State v. Smith
...of the appellant merely goes to the weight to be attached to the testimony, not to its admissibility. See Felker v. State, 144 Ga.App. 458, 241 S.E.2d 576, 577 (1978); Edwards v. State, 540 S.W.2d 641, 647 (Tenn.1976), Cert. den. 429 U.S. 1061, 97 S.Ct. 784, 50 L.Ed.2d 777 (1977). Allowance......
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Worth v. State, 74069
...are tried, exhibits having a tendency to show bent of mind towards sexual activity are generally admissible. Felker v. State, 144 Ga.App. 458, 459(2), 241 S.E.2d 576 (1978); see Reese v. State, 145 Ga.App. 453(1), 243 S.E.2d 650 (1978); Yeck v. State, 174 Ga.App. 710(2), 331 S.E.2d 76 (1985......
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Stamey v. State
...commit the crimes charged here, but to show his motive generally and his state of mind and lustful disposition. See Felker v. State, 144 Ga.App. 458, 459(2), 241 S.E.2d 576. "Possession of such ... item[s] does have a tendency to show bent of mind toward sexual conduct. [Cits.]" Grant v. St......
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Tyler v. State
...designed for [sexual] stimulation" can have a tendency to show a bent of mind toward similar sexual activity. Felker v. State, 144 Ga.App. 458, 459, 241 S.E.2d 576; accord Wilcoxen v. State, 162 Ga.App. 800 (1), 292 S.E.2d 905; Watson v. State, 147 Ga.App. 847, 850, 250 S.E.2d 540; Layne v.......