Jenkins v. State, 60160

• Decision Date: 06 January 1981
• Docket Number: No. 60160,60160
• Parties: JENKINS v. The STATE.
• Court: Georgia Court of Appeals

Page 618

274 S.E.2d 618

156 Ga.App. 387

JENKINS v. The STATE.

No. 60160.

Court of Appeals of Georgia.

Argued July 9, 1980.

Decided Oct. 22, 1980.

Rehearing Denied Nov. 12, 1980.

Certiorari Denied Jan. 6, 1981.

G. Terry Jackson, Savannah, for appellant.

Andrew J. Ryan, III, Dist. Atty., Fredrick W. Kramer, Robert M. Hitch, III, Asst. Dist. Attys., for appellee.

SHULMAN, Judge.

Appellant was convicted of rape, kidnapping and armed robbery. Finding no basis for reversal in any of appellant's enumerations of error, we affirm his convictions.

1. In his first enumeration of error, appellant contends that an in-court identification was tainted by an unnecessarily suggestive out-of-court identification procedure. The basis of appellant's complaint is that the two witnesses who identified appellant at trial viewed photographs of suspects at the same time in the same room.

While the better practice would be to separate potential witnesses during an identification procedure, we do not find the procedure used in the instant case to be so suggestive as to taint the subsequent in-court identification. Although the witnesses were in the same room, there was testimony to the effect that they were seated at opposite ends of a long table and were not able to see which photographs the other was viewing or which suspect was identified by the other witness.

Nor do we find any harm in the fact that items of evidence (clothing) seized from appellant were in view during the out-of-court identification. The picture of appellant which was chosen by both witnesses did not depict appellant wearing the clothing which was present during the identification.

" '(C)onvictions based on eyewitness identification at trial following a pretrial identification by photograph will be set aside on that ground only if the photographic identification procedure was so impermissibly suggestive as to give rise to a very substantial likelihood of irreparable misidentification.' (Cit.)" Bradley v. State, 152 Ga.App. 902, 264 S.E.2d 332. We do not find the procedures here employed to be so suggestive.

2. An expert witness testified concerning the identification of certain blood samples. His testimony was based on the results of a procedure known as electrophoresis. Appellant moved to have the witness' testimony stricken from the record, basing his motion on a contention that the reliability of the procedure and the acceptance of the procedure by the scientific community had not been shown. We find no error in the trial court's refusal to strike the testimony.

"The opinion of an expert on any question of science is always admissible." Breland v. State, 134 Ga.App. 259, 214 S.E.2d 186. We do not find that the fact that the procedure is relatively new requires that the testimony be excluded. The witness explained the procedure, thereby giving the facts on which his opinion was based. The question, then, is not of admissibility but of the weight to be given the evidence by the jury. Id.

3. Appellant also argues that the trial court erred in denying his motion to strike the testimony of the expert witness because the state failed to prove the chain of custody of the blood samples used by the witness. A review of the record shows that appellant never requested that the witness' testimony be stricken on that ground below and, in fact, never raised an objection based directly on the chain of custody. Having failed to properly raise the issue below, appellant may not raise it here. Perkins v. State, 151 Ga.App. 199(9), 259 S.E.2d 193.

4. Testimony was admitted at trial connecting appellant with the scene of a robbery by comparison of his palmprint to a palmprint found at the scene...