Ludden v. State
| Decision Date | 09 September 1985 |
| Docket Number | No. 70614,70614 |
| Parties | LUDDEN v. The STATE. |
| Court | Georgia Court of Appeals |
G.G. Joseph Kunes, Jr., Tifton, for appellant.
David E. Perry, Dist. Atty., Robert C. Wilmot, Asst. Dist. Atty., for appellee.
Appellant was convicted on nine counts of theft by deception and appeals. Each theft occurred by appellant's ordering an airline ticket from Delta Airlines by phone or mail, paying for the ticket with a check on an account that was closed or had insufficient funds in it, cancelling his flight and obtaining a refund check from Delta Airlines.
1. In his first two enumerations of error appellant contends it was error to admit eight exhibits into evidence, over objection, because the exhibits were not identified properly, no foundation was laid for their admission into evidence and a proper chain of custody was not established. The exhibits in question consisted of personal checks written by appellant in payment for airline tickets; the airline tickets; requests for refunds, with the address where the refund checks were to be sent; and the refund checks sent to appellant by Delta Airlines. Appellant also contends error in denial of his motion to strike from evidence four of the eight exhibits referred to above. The personal checks bore appellant's purported signature as maker, his social security number, and showed the payee as Delta Airlines.
All of the personal checks were identified by employees of banks as checks from their banks, and were drawn on banks where appellant had previously maintained checking accounts. A Delta Airlines employee identified tickets issued by Delta, refund checks issued to appellant, requests for refunds in appellant's name and "refund due" slips prepared by Delta Airlines indicating that appellant was due a refund. One bank employee testified that she knew appellant personally and saw him endorse and cash two of the refund checks from Delta Airlines. Two signature cards signed by appellant were introduced into evidence without objection. It is clear from the evidence related above that a proper foundation was laid for admission of the exhibits into evidence, as the genuineness of appellant's signature on the personal checks and the other documents purportedly written or signed by appellant was a question for the jury from comparison of the signatures. OCGA § 24-7-7; Vizard v. Moody, 119 Ga. 918, 924 (8), 47 S.E. 348 (1904); Martin v. State, 135 Ga.App. 4, 7 (3), 217 S.E.2d 312 (1975), r'vsd. on other grounds.
Appellant's contention that a chain of custody was not established for the checks and other documents is without merit. Direct physical objects which can be identified upon mere observation require no custodial proof for their admission. Gray v. State, 151 Ga.App. 684, 685 (2), 261 S.E.2d 402 (1979); Bissell v. State, 157 Ga.App. 711, 712(3), 278 S.E.2d 415 (1981). Since it was not error to admit State Exhibits 35, 36, 37 and 38 into evidence, it follows that it was not error to deny appellant's motion to strike those exhibits, as appellant's motion was based on the same grounds as his objection to their admissibility.
2. Appellant contends it was error to allow Mitch Williams, a police detective, to testify that appellant had committed the offense of theft by deception, and by refusing to strike such testimony from the record. This contention is without merit.
In response to a question as to how he became involved in the investigation of this case Williams stated that Mr. Milam, a security officer for Delta Airlines, brought various documents, airline tickets, refund tickets and personal checks to Williams. Milam wanted advice on the situation and after Williams reviewed the checks "I informed him that this would be a case of theft by deception." Appellant contends it was error to allow Williams to express his opinion, as his statement went to the ultimate issue to be decided by the jury.
After Williams' response the trial court immediately instructed the jury that it was its function to determine appellant's guilt or innocence based upon the evidence and the law as given the jury by the court, and the jury would take the law from the court and from no other source. Appellant then moved to strike the quoted portion of Williams' answer from the record and the motion was denied. The witness' answer in this instance was not an opinion and did not go to the ultimate issue, i.e., whether appellant was guilty or not guilty of theft by deception. The witness was merely stating what he told Milam (that this was a case of theft by deception) and the jury had already been informed by the court at the commencement of trial that this was a theft by deception case. Thus, there could be no possible harm to appellant from Williams' statement. Even assuming, without deciding, that the trial court erred by allowing the testimony to be introduced, any error was harmless because the evidence against appellant was overwhelming. Hamilton v. State, 239 Ga. 72, 76, 235 S.E.2d 515 (1977). See, however, Williams v. State, 254 Ga. 508, 510 (2), 330 S.E.2d 353 (1985).
3. Appellant contends the trial court erred by denying his motion for a directed verdict of acquittal because venue was not established in Tift County, Georgia, and the evidence was admitted improperly because no foundation was laid and no chain of custody was established. We have disposed of appellant's argument concerning admissibility of the evidence in Division 1 of this opinion.
Although no one saw appellant write the checks used as payment for the airline tickets, the evidence established that appellant lived in Tift...
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