Harvey v. State, s. 64668 and 64669

• Decision Date: 04 January 1983
• Docket Number: Nos. 64668 and 64669,s. 64668 and 64669
• Citation: 165 Ga.App. 7,299 S.E.2d 61
• Parties: HARVEY v. The STATE. BROWN v. The STATE.
• Court: Georgia Court of Appeals

Page 61

299 S.E.2d 61

165 Ga.App. 7

HARVEY v. The STATE.

BROWN v. The STATE.

Nos. 64668 and 64669.

Court of Appeals of Georgia.

Jan. 4, 1983.

William L. Auld, Atlanta, for Harvey.

Robert Wilson, Dist. Atty., Ann Poe Mitchell, Asst. Dist. Atty., Decatur, for appellee in both cases.

Calvin A. Leipold, Jr., Decatur, for Brown.

SOGNIER, Judge.

Harvey and Brown were convicted in a joint trial of rape, and both appeal.

After accepting an offer of a ride home with three men, the victim was taken to a deserted area where she was beaten and raped by two of the men. The police were notified and on returning to the scene the victim's bra was found. The defendants drove up while the police were examining the scene and were identified by the victim as the men who raped her. The victim's jacket was found on the seat of the pick-up truck defendants were driving, and her billfold was found behind the seat in a police car used to take Brown to the police station. A physical examination of the victim at Grady Hospital disclosed several bruises, scratches on her back imbedded with dirt, and that she had recently had sexual intercourse.

1. Appellants contend the trial court erred by denying their motion for a directed verdict of acquittal because the state failed to establish penetration, an essential element of the offense, because all the victim stated was that she was "raped." They also contend the state failed to prove venue. In Haney v. State, 144 Ga.App. 885, 886, 242 S.E.2d 757 (1978), we held that the victim's testimony that she was "raped," corroborated by other evidence concerning her emotional state, her state of attire, her outcry and her personal injuries, was sufficient to support an implication that intercourse had occurred. All of those elements are present here and additionally, the testimony of the doctor who examined the victim established that she had engaged recently in sexual intercourse. Thus, the contention is without merit.

As to a failure to prove venue, two police officers testified that Seminole Road, where the rape occurred, was in DeKalb County. The evidence of venue was sufficient. Wells, alias Wilson, v. State, 210 Ga. 422, 423(2), 80 S.E.2d 153 (1954); Dixon v. State, 150 Ga.App. 305, 257 S.E.2d 387 (1979).

As a verdict of acquittal was not demanded as a matter of law, it was not error to deny the motions for a directed verdict of acquittal. Sims v. State, 242 Ga. 256, 257(1-3), 248 S.E.2d 651 (1978).

2. Both appellants contend the trial court erred by denying their motions to suppress all evidence seized, and flowing from, appellants' arrest, as the state did not establish that the arresting officers were certified peace officers who had completed the basic course of instruction required by the provisions of Code Ann. § 92A-2109 (now O.C.G.A. § 35-8-9). Thus, argue appellants, under the provisions of Code Ann. § 92A-2115(a) (O.C.G.A. § 35-8-17(a)), the police officers were prohibited from exercising the powers of arrest and any testimony or evidence flowing from such illegal arrest was inadmissible.

When appellants raised this issue at trial the court allowed the state, which had not rested its case, to recall the two arresting officers. Both officers testified that they had completed the course of training required by Code Ann. § 92A-2109 (now O.C.G.A. § 35-8-9). "[I]n a motion to suppress, the judge sits as the trier of fact. [Cit.]" State v. Betsill, 144 Ga.App. 267, 268(2), 240 S.E.2d 781 (1977). Since the trial court obviously found that the police officers had received the required training, it was not error to deny appellants' motions to suppress evidence flowing from their arrest.

3. Appellants contend the trial court erred in admitting into evidence the "rape kit" used by the doctor who examined the victim because a proper chain of custody was not shown. They argue that the state has failed to show what happened to the kit during the time it was stored in the gynecology clinic at Grady Hospital on December 13, 1981 until it was picked up by Officer Kimball and taken to the Crime Lab on January 5, 1982.

The rape kit was sealed at Grady Hospital and there was no evidence of tampering prior to its delivery, sealed, to the Crime Lab. We have held that it is not necessary that the state negative all possibility of tampering, but only that it show it is reasonably certain there was no alteration. When there is only bare speculation of tampering, it is proper to admit the evidence and let what doubt remains go to its weight. Meadows v. State, 135 Ga.App. 758, 760, 219 S.E.2d 174 (1975); Allums v. State, 161 Ga.App. 842, 846(4), 288 S.E.2d 783 (1982). Accordingly, it was not error to allow the rape kit in evidence, or to allow testimony concerning laboratory analysis of its contents.

4. Appellants next contend the trial court erred by allowing a state witness to testify whose name was not on the list of witnesses submitted to the defense, as required by Code Ann. § 27-1403 (now O.C.G.A. § 17-7-110).

Mr. Sanitmarie, a micro-analyst at the State Crime Lab testified that he received certain items of clothing and hair samples from Larry Peterson, another micro-analyst, after they were received by him at the Crime Lab from Officer W.S. Perry. Appellants objected to Sanitmarie's testimony relating to examination of these items because Peterson had not testified and thus, a proper chain of custody had not been shown. The court agreed and the state then called Peterson as a witness; appellants then objected to Peterson's testimony as his name was not included on the list of witnesses. Appellants contend the court's overruling of this objection was error.

The prosecuting attorney stated that until defense counsel objected to the chain of custody, he (the prosecuting attorney) was not aware that Peterson was a necessary witness. Although appellants contend there was not a proper showing of surprise, Officer Perry testified he had given the evidentiary items in question directly to Mr. Sanitmarie. It was only when Sanitmarie testified subsequently that the state learned he had received the items from Peterson, not Officer Perry. Under the circumstances we find a sufficient showing of surprise to warrant the trial court's action in allowing Peterson to testify. Mitchell v. State, 226 Ga. 450, 455(3), 175 S.E.2d 545 (1970); Gooch v. State, 155 Ga.App. 708, 709-710(2), 272 S.E.2d 572 (1980).

5. Appellants...