Gibson v. State

• Decision Date: 09 November 1981
• Docket Number: No. 62815,62815
• Citation: 160 Ga.App. 615,287 S.E.2d 595
• Parties: GIBSON v. The STATE.
• Court: Georgia Court of Appeals

Page 595

287 S.E.2d 595

160 Ga.App. 615

GIBSON v. The STATE.

No. 62815.

Court of Appeals of Georgia.

Nov. 9, 1981.

Rehearing Denied Dec. 4, 1981.

Terrance P. Leiden, Augusta, for appellant.

Sam B. Sibley, Jr., Dist. Atty., Charles R. Sheppard, Asst. Dist. Atty., for appellee.

QUILLIAN, Chief Judge.

The defendant appeals from his conviction on two counts of armed robbery. Held :

1. It is contended the trial court erred in permitting the past recorded testimony of the victim of the robbery alleged in Count 2 to be admitted in evidence because "there was not adequate evidence of [a] inaccessibility of the witness, or [b] diligence on the part of the state in locating her."

Gloria Jean Dupree, a clerk at a Majik Market on Central Avenue in Augusta, testified at the preliminary hearing that on the night of July 2, 1980, shortly after 9:00 p. m., a young black man came into the store, bought a soda, and handed her a dollar. After she opened the cash register to make change, the man produced an ice pick and stated: "This is a robbery." She stepped back from the register and he removed approximately $40.00. She identified the defendant as the robber. She had seen him earlier in the evening in the store but there were other customers in the store and he had left. She first identified the defendant from his picture in a photo lineup of ten to twelve photographs. She advised the police he probably lived in the area near the store as "he had been in the store a couple of times before."

The trial calendar for this case was published "three weeks" before trial on September 29, 1980. (Approximately Sept. 8.) Subpoenas were requested by the District Attorney on September 18. The sheriff's office was unable to locate Gloria Jean Dupree, and returned the subpoena to the District Attorney. On Thursday, September 25, an investigator for the District Attorney's office began an attempt to locate the missing witness. By Friday, September 26, he found out she had moved from her residence on September 13 or 14 to join her husband, a soldier in the U. S. Army stationed in Frankfurt, West Germany. The trial was held the following Monday, September 29, 1980.

(a) Our Code provides that "[t]he testimony of a witness ... inaccessible for any cause, given under oath on a former trial, upon substantially the same issue and between the same parties, may be proved by anyone who heard it ..." Code Ann. § 38-314 (Code § 38-314). The testimony of this witness had been given at the preliminary hearing in this case. The trial involved the same parties, and substantially the same issues. The defendant had counsel and the witness was subject to cross examination by defendant. Thus, testimony of a witness at a preliminary hearing is admissible at the main trial under this section. Stidem v. State, 246 Ga. 637(1), 272 S.E.2d 338.

The general rule is that the issue of inaccessibility of a witness lies largely within the discretion of the trial judge. LaCount v. State, 237 Ga. 181, 182, 227 S.E.2d 31. Hence, where the witness is outside the jurisdiction of the court--and, as in this case in a foreign country, we do not find an abuse of discretion. Brown v. State, 245 Ga. 588(1), 266 S.E.2d 198; LaCount v. State, 237 Ga. 181, 182, 227 S.E.2d 31, supra.

(b) The question of diligence in production of a witness by the party offering the testimony is also an issue addressed to the sound discretion of the trial court. Gaither v. State, 227 Ga. 668, 669, 182 S.E.2d 434.

This case was placed on the trial calendar approximately September 8, subpoenas issued around September 18, and the sheriff's office was unable to locate the witness, who had departed for Germany on September 13, or 14. The District Attorney's office assigned a special investigator to find the missing witness on September 25. However, any action taken after the witness had departed for Germany would have been fruitless. Under these circumstances, we find no abuse of discretion. Cohen v. Brunson, 14 Ga.App. 170(2), 80 S.E. 679; Norris v. State, 58 Ga.App. 399(1b), 198 S.E. 714; Hewell v. State, 136 Ga.App. 420, 422, 221 S.E.2d 219; Milstead v. State, 155 Ga.App. 407(2), 270 S.E.2d 820; Robinson v. State, 128 Ga. 254(1), 57 S.E. 315; Whatley v. State, 230 Ga. 523, 198 S.E.2d 176.

2. Counsel for the defendant alleges he was unduly restricted in his right to a thorough and sifting cross examination of a state's witness. Counsel was cross examining the victim of the first armed robbery and asked: "Now, is this the ice pick that was used? Ms. Carlton: It appears to be the same. Mr. Leiden: Well, I mean, are you positive? Ms. Carlton: It looks like the same one. Mr. Leiden: Well, let me ask you this. A man can go to jail for life; now, are you positive?" The district attorney objected and was sustained.

It is true that the right of a thorough and sifting cross examination belongs to the defendant as to the witnesses against him. Code Ann. § 38-1705 (Code § 38-1705). However, the scope of cross examination is not unlimited and the extent of permissible cross examination lies within the sound discretion of the trial judge. Decker v. State, 139 Ga.App. 707, 708, 229 S.E.2d 520. The court made it perfectly clear that his ruling went only to the comment of counsel that "[a] man can go to jail for life ..." He asked counsel: "Do you think that is a proper statement to make in this trial setting? ... This jury is not here to decide or to determine or to be concerned with punishment ..." Counsel was not curtailed in cross examination--only from making improper statements to the jury. This enumeration is without merit. Whitley v. State, 137 Ga.App. 68(1), 223 S.E.2d 17; Crawford v. State, 154 Ga.App. 362(2), 268 S.E.2d 414.

3. The defendant objected to the testimony of a police officer that he took a photographic lineup to the residence of one of the robbery victims and "[s]he picked the defendant out ..." Defendant's objection, on the ground of hearsay, was overruled. Following this the officer stated: "Mrs. Dupree identified the defendant, Robert Jerome Gibson, as the person who had robbed her on the night of July 2nd at the Majik Market on the 2600 block of Central Avenue, using an ice pick as a weapon." There was no objection to this testimony. Thereafter when the officer testified that when he asked the victim if she could identify the ice pick that had been found in defendant's possession at the time of his arrest, counsel objected to the answer: "she said that's the ice pick." This objection was also overruled.

The state did not attempt to offer such testimony under Code Ann. § 38-302 (Code § 38-302) as conversation during a legal investigation used to explain conduct, but offered such extra-judicial identification under the authority of Bruce v. State, 142 Ga.App. 211, 213, 235 S.E.2d 606, wherein this court held: "A law enforcement officer is permitted to testify to a vocal fact of identification witnessed by himself without its being subject to a hearsay objection." Bruce cited Haralson v. State, 234 Ga. 406(4), 216 S.E.2d 304, which held "admission of testimony by the police officer who conducted a line-up as to the identity of persons picked out of such line-up by other witnesses ... was not subject to the objection that it is hearsay, and such enumeration of error is without merit."

Legal controversy surrounds extra-judicial identification of a defendant as the perpetrator. See Annot. 71 A.L.R.2d 449. Support and condemnation can be found for testimony of a third person which merely witnessed the act of identification, as well as recounting the testimony of the identifier, and whether each or both are hearsay. Annot. 71 A.L.R.2d 449, 483 § 13. In the instant case the objection of counsel was to testimony of the officer that "[s]he picked the defendant out ..." Counsel did not object to that officer's testimony that "Mrs. Dupree identified the defendant, Robert Jerome Gibson, as the person who had robbed her ..." The first recounts a fact observed by the witness, the latter repeats the testimony of the missing witness. The Supreme Court has held: "Anything [the officer] testified to concerning either a verbal identification or a physical gesture pointing out which of the suspects was being identified would be inadmissible hearsay ..." Brown v. State, 234 Ga. 632, 633, 217 S.E.2d 150. However, since Brown failed to distinguish or mention contrary prior rulings in Montos v. State, 212 Ga. 764, 767, 95 S.E.2d 792 (...