Foster v. State

• Citation: 178 Ga.App. 478,343 S.E.2d 745
• Decision Date: 18 March 1986
• Docket Number: No. 71566,71566
• Parties: FOSTER v. The STATE.
• Court: United States Court of Appeals (Georgia)

Page 745

343 S.E.2d 745

178 Ga.App. 478

FOSTER v. The STATE.

No. 71566.

Court of Appeals of Georgia.

March 18, 1986.

Rehearing Denied April 1, 1986.

Certiorari Denied June 25, 1986.

William C. Puckett, Jr., Decatur, for appellant.

Robert E. Wilson, Dist. Atty., James M. McDaniel, Susan Brooks, Asst. Dist. Attys., for appellee.

CARLEY, Judge.

Appellant and two others were jointly indicted for one count of armed robbery and one count of kidnapping. The two co-indictees entered pleas of guilty and appellant subsequently stood trial alone. The jury returned a verdict of guilty as to both counts and appellant appeals from the judgment of conviction and sentence entered thereon.

1. Prior to trial, appellant filed a written motion in limine seeking to prevent the State from making reference to the guilty pleas of his co-indictees. The trial court granted the motion, "subject ... to other things that could occur during ... the trial that might make that relevant." At trial, the victim, while recounting the details of the crime, testified that he was "a hundred percent sure" that appellant had been one of the three men who had attacked him and that he was "90% certain" that he could identify the other two men. On cross-examination, the victim was subjected to a strong attack on the credibility of his identification testimony. Appellant endeavored totally to discredit the victim's testimony on the basis that he had, in fact, been too physically and emotionally distraught to make any credible identification of his attackers and that he also had an insufficient opportunity to view them clearly.

By way of rebuttal, the State then sought to introduce into evidence the guilty pleas of appellant's co-indictees. The State's contention was that the cross-examination of the victim had rendered the guilty pleas relevant with regard to the credibility of the victim's identification of appellant as one of the three perpetrators. Appellant objected that the admission of the guilty pleas of his co-indictees would deny him a fair trial. The trial court, however, admitted the guilty pleas for their limited relevancy regarding the victim's credibility as an eyewitness. Appellant assigns this ruling as error.

In Georgia, there is a recognized rule of inadmissibility with regard to a non-testifying co-indictee's guilty plea. The cases which apply this rule of inadmissibility rely upon the language of OCGA § 24-3-52 and, based upon the consequent irrelevancy or incompetency of that guilty plea as proof of the guilt of the defendant on trial, hold that it cannot be used as substantive evidence "against" him. See generally Gray v. State, 13 Ga.App. 374, 79 S.E. 223 (1913); Hayes v. State, 136 Ga.App. 746, 222 S.E.2d 193 (1975); Boggus v. State, 136 Ga.App. 917(1), 222 S.E.2d 686 (1975); Neal v. State, 160 Ga.App. 834, 837(3), 288 S.E.2d 241 (1982). Compare Gary v. State, 156 Ga.App. 856, 858(3), 275 S.E.2d 830 (1980) (Evidence of guilty plea admissible on credibility of testifying co-indictee). But see Golden v. State, 163 Ga.App. 629, 630, 295 S.E.2d 144 (1982).

Accordingly, there would seem to be no controlling authority in Georgia which recognizes the existence of any viable "exception" to our established rule of inadmissibility of the guilty plea of a non-testifying co-indictee. On the other hand, however, there is no authority which forecloses the possibility that such "exceptions" exist. It appears that the applicable procedure in the federal courts is to employ a simple balancing test for determining the admissibility of a co-indictee's guilty plea. "One person's guilty plea or conviction may not be used as substantive evidence of the guilt of another. [Cits.] The introduction of a co-defendant's guilty plea is permissible, however, when its use is limited to proper evidentiary purposes such as to impeach trial testimony or to reflect on a witness' credibility. [Cit.]" United States v. King, 505 F.2d 602, 607 (5th Cir.1974). This general rationale for determining admissibility is persuasive, and we hereby adopt it as the rule to be followed in Georgia courts. Thus, the issue in the instant case becomes whether the two guilty pleas were erroneously admitted as substantive evidence of appellant's guilt or were, instead, correctly admitted for a proper limited evidentiary purpose.

As indicated, it was only after the attack on the credibility of the victim's eyewitness testimony that the State sought the admission of the guilty pleas as corroboration for the victim's asserted degree of certitude in his ability to identify appellant as one of his attackers. Compare Branson v. State, 99 Ga. 194(2), 24 S.E. 404 (1896); Fields v. State, 88 Ga.App. 770(2), 77 S.E.2d 751 (1953) (guilty plea of co-defendant not admissible to corroborate his own inculpatory testimony). It is "relevant and proper for the State [to] ... neutralize the effect of the testimony given on cross-examination and attempt to sustain its witness's credibility, which was of course for the jury. [Cits.]" Walton v. State, 65 Ga.App. 124, 128(6) 15 S.E.2d 455 (1941). "[C]onsiderable latitude must be allowed in the admission of corroborative evidence. It is permissible to strengthen a witness's testimony by evidence of matters showing its consistency and reasonableness, and tending to indicate that the facts probably were as stated by the witness. [Cits.]" Aycock v. State, 62 Ga.App. 812, 818, 10 S.E.2d 84 (1940).

Evidence that the same two individuals whom the victim had identified as perpetrators with "90% certain[ty]" had themselves acknowledged their guilt would undoubtedly tend to corroborate the victim's strenuously contested assertion that he was "a hundred percent sure" of his identification of appellant as the third perpetrator. The evidence tended to neutralize the effort on cross-examination to establish the victim's lack of credibility as to the details of his ordeal. It tended to sustain the victim insofar as his professed opportunity to observe and ability to recognize his three attackers were concerned. It was made clear to the jury that the guilty pleas were not to be used as substantive evidence of appellant's guilt. The trial court gave jury instructions as to "[t]he limited purpose for which the [evidence] was used by [the State]...." Boyd v. State, 244 Ga. 130, 131, 259 S.E.2d 71 (1979). Under these circumstances, it is apparent that "[t]here [was] nothing ... from which appellant's participation in the crime [could] be inferred. [Cit.] The mere fact that appellant and his co-defendant[s] were [indicted and would have been] tried together does not render the co-defendant's [own inculpatory admissions] inculpatory with respect to appellant." Davis v. State, 154 Ga.App. 357(2), 268 S.E.2d 409 (1980).

The jury having been apprised that the evidence was not relevant as to appellant's guilt but only as to the collateral issue of the credibility of the victim's identification testimony, there was no error. Aycock v. State, supra.

2. The remaining enumerations also relate to the victim's identification testimony. The victim had identified appellant in two separate pre-trial photographic displays. The photographs that comprised the displays are not included in the record on appeal, having been lost by the court reporter after appellant's trial. Appellant first urges that this loss has effectively deprived him of his right to appeal on the basis of the "impermissible suggestiveness" of the photographs.

There has been no failure on the part of the State to file any transcript whatsoever. Compare Wade v. State, 231 Ga. 131, 133(I), 200 S.E.2d 271 (1973). Appellant makes no contention that the transcript that has been filed is erroneous. Compare Wilson v. State, 246 Ga. 672, 273 S.E.2d 9 (1980); Parrott v. State, 134 Ga.App. 160(2), 214 S.E.2d 3 (1975). The sole contention is that, absent the actual photographs, the transcript is not complete. However, a review of the transcribed oral testimony, the accuracy of which appellant does not contest, shows that extensive reference was made by the sworn witnesses as to every aspect of the photographic displays. Compare McElwee v. State, 147 Ga.App. 84, 248 S.E.2d 162 (1978); Montford v. State, 164 Ga.App. 627, 298 S.E.2d 319 (1982). There is testimony describing the various photographs, how they were similar, how they differed, and how they were utilized. Under these circumstances, the transcript is "complete and accurate enough to afford a full and fair review by the Court of Appeals...." State v. Knowles, 247 Ga. 218, 219, 274 S.E.2d 468 (1981)....