Kates v. State, s. 58479
| Decision Date | 24 October 1979 |
| Docket Number | 58558,Nos. 58479,s. 58479 |
| Citation | 262 S.E.2d 221,152 Ga.App. 29 |
| Parties | KATES v. The STATE. FORD v. The STATE. |
| Court | Georgia Court of Appeals |
Stephen E. Boswell, Jonesboro, for appellant in No. 58479.
Jay W. Bouldin, Jonesboro, for appellant in No. 58558.
Robert E. Keller, Dist. Atty., James W. Bradley, Asst. Dist. Atty., for appellee.
Messrs. Kates, Ford and Hall were jointly tried for the offense of armed robbery. Kates and Ford were convicted and sentenced to serve fifteen years. Hall was acquitted. Kates and Ford have separately filed enumerations of error based upon separate appeals. Inasmuch as the alleged errors arise out of the same trial and transcript, we have consolidated the appeals and will treat the case as one though the two allegations of error are, in the main, dissimilar. Kates enumerates three errors and Ford enumerates five. Held :
1. In brief, the facts show that the three defendants were residents in Columbus, Georgia. On the evening in question, Kates and Ford contacted Hall and requested transportation to Atlanta, ostensibly to visit Kates' sister. Hall drove for a while but at Manchester surrendered the operation of the vehicle to one of the other men. Hall established to the satisfaction of the jury that as the car approached Atlanta, he (Hall) fell asleep on the back seat. He awoke to a high speed chase into Atlanta. He testified that he was not aware that a robbery was contemplated or had occurred. The car crashed into a building whereupon all three of the men were apprehended.
Other evidence showed that two men, identified at the trial as Kates and Ford, entered an all-night convenience store in College Park at about 2:00 a. m. After some desultory movement, one of the two exposed a .22 caliber pistol and removed the bills and change from the cash register while the other kept a lookout. A small tray of inexpensive costume jewelry was also taken. One of the two men removed a bottle of orange drink from the cooler and left the bottle on the counter as they fled the store. After the apprehension, an amount almost identical to that taken from the store was recovered from the three men. A .22 caliber pistol and a tray of costume jewelry identical to that taken were recovered from the car. The search also revealed a .38 caliber pistol, cartridges for a .22 and a .38 caliber pistol, a blue shirt identical to one worn by one robber and a green shirt identical to the one worn by the other. Certain other items taken from the defendants such as gum wrappers, receipts, wrist watches, cigarette lighters and the like were placed into evidence envelopes along with the recovered money. At trial, all of the above items of real evidence were admitted into evidence over objection.
2. In Case No. 58558, the appellant Ford enumerates as his first error the admission of all the above evidence, either because it was irrelevant (i. e., the .38 pistol, cartridges, cigarette lighters, watches, etc.) or because of the absence of a chain of custody.
In this case it is apparent that the witnesses identified the gun, the costume jewelry, the clothing, the money and the other items based upon the appearance and peculiar circumstances under which the items had been brought to the attention of the witness. It is not necessary that the authenticity of an exhibit be proved to an absolute certainty. Sims v. State, 243 Ga. 83, 85, 252 S.E.2d 501; Jackson v. State, 236 Ga. 895(2), 225 S.E.2d 908. Unlike fungible items, distinct physical objects which can be identified upon mere observation require no custodial proof for their admission. Ramey v. State, 238 Ga. 111, 113(4), 230 S.E.2d 891; Floyd v. State, 137 Ga.App. 181(2), 223 S.E.2d 230. Even the currency, which ordinarily would be considered fungible, was identified because it was of a certain quantity, enclosed in evidence bags which had initials appearing thereon and combined with readily identifiable items such as a wrist watch, receipts, gum wrappers, and cigarette lighters. All the items of evidence were relevant to establish identity. Thus, where it appeared that the robbery was committed by two men dressed in particular apparel and wielding a .22 caliber gun, we conclude that it would make no material difference whether or not it is established that the clothing, the tray of costume jewelry, and the pistol found in the car occupied by the appellants were the exact same items used or taken at the time the crime was committed. The identification was sufficient to authorize the jury to decide, under the evidence relative to identification, whether or not they were the identical items worn and utilized by the defendants. Jung v. State, 237 Ga. 73, 74, 226 S.E.2d 599; Katzensky v. State, 228 Ga. 6(3), 183 S.E.2d 749. The items of evidence such as the .38 caliber pistol, the watches, cigarette lighter, etc., were not shown to have been used in the robbery, but they were in the car at the time of the arrest and were connected for identification purposes to the offense. Although evidence of collateral matters may cast only remote light on the main issues of a case, it is necessary that trial judges be vested with some latitude as to the admissibility of this type of evidence. Code § 38-202; Ludwig v. J. J. Newberry Co., 78 Ga.App. 871(2), 52 S.E.2d 485. Evidence which is irrelevant will not always require reversal, since prejudice also must appear. We find no harm under the facts of this case. This enumeration lacks merit.
3. In his second enumeration of error, Ford contends that the victim of the robbery, one Curry, was allowed erroneously to make an in-court identification, allegedly mistaken, because Curry had been shown a pictorial lineup earlier without counsel or the defendant being present. There is no established constitutional right to counsel at an out-of-court photographic identification where the defendant is not present. United States v. Ballard, 423 F.2d 127. At trial Curry made very clear that his in-court identification was based upon the several-minute exposure to the two appellants at the scene of the crime. A conviction based on eyewitness identification at trial following a pretrial identification by photograph will be set aside only if the photographic identification procedure was so impermissibly suggestive as to give rise to a very substantial likelihood of irreparable misidentification. Myers v. State, 236 Ga. 677, 678, 225 S.E.2d 53; Dagenhart v. State, 234 Ga. 809, 810, 218 S.E.2d 607. There being no assertion that the photographic lineup was in any way suggestive (as opposed to the absence of counsel or accused), the trial court did not err in allowing the in-court identification to be put before the jury. Thomas v. State, 148 Ga.App. 222, 223, 251 S.E.2d 136.
4. In his third enumeration of error, Ford argues that error was committed when the witness Curry made reference to a picture after the trial court had sustained an objection to the use of such pictures and stricken any reference thereto from the record. We note that the only objection made to the use of the picture was that neither counsel nor the accused was present when Curry was shown the picture. As indicated in the division above, this was not a proper objection because no such right to be present exists. Moreover, the context of the answers was that Curry had previously made a "statement" to police that he could not identify one of the appellants from a picture. This answer was given during cross examination and was responsive to the question asked. Where counsel elicits testimony unfavorable to his client, he will not be heard to object to it, if it is a direct and pertinent response to the question propounded. Rozier v. State, 126 Ga.App. 336(1), 190 S.E.2d 627; and this is particularly true where the line of questioning is pursued. Clyatt v. State, 126 Ga.App. 779, 783, 192 S.E.2d 417. This enumeration at worst presents a harmless matter and thus is without merit.
5. In his fourth enumeration of error, Ford urges that the prosecutor committed prejudicial error in closing argument. Each defendant was represented by different counsel. During closing argument by counsel for Ford, the counsel argued that the reason that Ford did not take the stand was because the state had presented nothing to rebut and therefore it was not necessary for Ford to...
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