Jones v. State
| Decision Date | 18 September 1974 |
| Docket Number | No. 29095,29095 |
| Citation | 232 Ga. 762,208 S.E.2d 850 |
| Parties | Larry JONES v. The STATE. |
| Court | Georgia Supreme Court |
Glenn Zell, Atlanta, for appellant.
Lewis R. Slaton, Dist. Atty., H. Allen Moye, Asst. Dist. Atty., Arthur K. Bolton, Atty. Gen., and G. Stephen Parker, Asst. Atty. Gen., Atlanta, for appellee.
Syllabus Opinion by the Court
The appellant, Larry Jones was indicted along with Milton Leon Hicks on a six count indictment, including two counts of rape, one count of aggravated sodomy, and three counts of armed robbery. The appellant and Hicks were tried together in Fulton Superior Court and at the conclusion of the presentation of evidence by both sides the court announced that the case against Hicks had been disposed of and instructed the jury not to consider the guilt or innocence of Hicks.
The jury found the appellant guilty on all six counts and sentenced him to two life sentences and four twenty-year sentences. The court overruled appellant's amended motion for new trial, at the same time ordering all of the sentences to run concurrently under the authority of Wade v. State, 231 Ga. 131, 200 S.E.2d 271. This appeal is from the overruling of the amended motion for new trial. Held:
1. The general grounds are totally without merit. One of the rape victims and her husband testified that their home was broken into in the early morning hours on September 15, 1972, by two armed males, that both males raped the wife at gunpoint and proceeded to rob the home of valuables after gagging and tying up the victim and her husband with his neckties. The other victim and her husband testified that their home was broken into in the early morning hours of November 24, 1972, by two armed males, both of whom proceeded to rape the wife, one forcing her to commit sodomy, and then robbed the home of valuables after gagging and binding the victim and her husband. On April 14, 1973, polies stopped a stolen vehicle and arrested the appellant-Jones and his co-defendant, Hicks. In the car the detectives found a gun and a pair of gloves taken from the residence of one of the victims. The appellant-Jones was placed in a lineup in DeKalb County and viewed by both of the rape victims, both of whom picked the appellant as one of the two men who had raped them. Both of the victims positively identified the appellant in the courtroom during the trial, further testifying that the lights were on in the house during most of the time in which the crimes took place, in one instance approximately 2 hours, and that they had ample opportunity to observe the perpetrators in the light with no masks or other facial covering.
2. The appellant contends that the court erred in not allowing a psychiatrist to testify concerning the credibility of the eyewitnesses' (the victims) testimony given during the trial on the grounds that it was relevant to the issues of the case and thereby denied the appellant the right to defend himself and also denied the appellant due process of law. The appellant argued in the trial court that the psychiatrist should have been allowed to answer the hypothetical questions as to whether a positive identification could have been made by the victims under the circumstances of the crimes. The psychiatrist testified that in his professional experience he had opportunities to examine numerous people who had been involved in crimes as victims and as participants, though he admitted that he had not talked to any of the victims in this case. The trial court sustained the state's objection to the doctor's testimony.
' The opinion of experts, on any question of science, skill, trade, or like questions, shall always be admissible; and such opinions may be given on the facts as proved by other witnesses.' Code § 38-1710. Nevertheless, expert opinion, like lay opinion is received only in instances where it is helpful or necessary. Allison v. Wall, 121 Ga. 822(1), 49 S.E. 831. As a general rule the witness is not allowed to express on the stand an opinion of ultimate fact or the very fact to be decided by the jury because to do so would invade the province of the jury. Green, Georgia Law Of Evidence, p. 283, § 113; 20 A.L.R.3d, p. 698, § 13. The ultimate fact to be decided in this case was the correctness or incorrectness of the eyewitness identification of the appellant. The determination of the credibility of a witness, including the accuracy of an eyewitness' identification, is a matter exclusively within the jury's province. Montgomery v. State, 224 Ga. 845, 849, 165 S.E.2d 145; Curtis v. State, 224 Ga. 870, 873, 165 S.E.2d 150; Clenney v. State, ...
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