Martin v. State, 57852

• Decision Date: 26 July 1979
• Docket Number: No. 57852,57852
• Citation: 258 S.E.2d 711,151 Ga.App. 9
• Parties: MARTIN v. The STATE.
• Court: Georgia Court of Appeals

Page 711

258 S.E.2d 711

151 Ga.App. 9

MARTIN v. The STATE.

No. 57852.

Court of Appeals of Georgia.

Argued May 8, 1979.

Decided July 16, 1979.

Rehearing Denied July 26, 1979.

Richard D. Phillips, Ludowici, for appellant.

DuPont K. Cheney, Dist. Atty., Kenneth R. Carswell, Asst. Dist. Atty., for appellee.

CARLEY, Judge.

Appellant was indicted and tried for aggravated assault and rape. From his conviction of both offenses he brings this appeal.

1. Appellant urges that aggravated assault is a lesser included offense in the crime of rape and that his conviction for both cannot stand. Code Ann. § 26-1302 provides: "A person commits aggravated assault when he assaults (a) with intent to murder, to rape, or to rob, or (b) with a deadly weapon." The state's evidence showed that the victim was attacked with a tire jack. From evidence presented as to the manner in which the jack was used to assault the victim, the jury was authorized to find that it was a deadly weapon within the meaning of Code Ann. § 26-1302(b). Quarles v. State, 130 Ga.App. 756(2), 204 S.E.2d 467 (1974); Ellis v. State, 137 Ga.App. 834, 836(2), 224 S.E.2d 799 (1976). The evidence also showed that the victim was then forced into her automobile, where the rape was committed.

This evidence shows the commission of aggravated assault and of rape. Since the former crime was not a lesser included offense of the latter (Hughes v. State, 239 Ga. 393, 397(3), 236 S.E.2d 829 (1977)), there was no error.

2. Appellant's allegations that error was committed because the bailiff was not properly sworn are unsupported by the record, it affirmatively appearing that the bailiff took charge of the jury only after his oath had been administered. There was no error. Compare Hannah v. State, 212 Ga. 313, 319(6), 92 S.E.2d 89 (1956).

3. Appellant urges that it was error to allow a witness for the state to remain in the courtroom after the rule of sequestration had been invoked and after other witnesses had taken the stand and testified. It is urged that the state presented no reason why this witness should not have been called first and that it was an abuse of discretion for the court to permit this sequence of testimony without such a showing. Whitfield v. State, 143 Ga.App. 779(2), 240 S.E.2d 189 (1977).

The witness in question was the GBI agent who conducted the investigation of the alleged crime and was listed as the prosecutor on the indictment for rape. We do not agree with appellant's assertion that the state presented no reason why this witness should not have testified first. The record reveals the following colloquy occurred with regard to this witness and his testimony:

"District Attorney: Your Honor, the State will request Agent Sikes be allowed to remain in the courtroom. I need his assistance in the trial of the case. He is the Prosecutor.

"The Court: All right. What do you wish to say in response?

"Appellant's counsel: I assume that he will be allowed to testify first.

"District Attorney: No, not necessarily. We will present the case in the order in which the events occurred. I think the discretion of the Court will allow him . . ." (Emphasis supplied.)

"The witness involved was the chief investigating officer. He was familiar with the case and the prosecutor stated in his place that he needed the witness' assistance during the trial. In response to appellant's motion to require the investigating officer to testify as the first witness in the case, the prosecutor stated that The testimony would be out of order if this witness was required to testify first." Davis v. State, 242 Ga. 901, 903, 252 S.E.2d 443, 446 (1979). (Emphasis supplied.) In the instant case as in Davis, supra, the district attorney stated that his reason for not calling the witness first was the orderly presentation of the evidence. Therefore, we conclude that "a proper foundation for an exception to the sequestration rule was made and, . . . , we find no abuse of discretion by the trial judge in allowing the investigating officer to remain in the courtroom and in refusing to direct that he be called as the state's first witness." Davis v. State, supra, 904, 252 S.E.2d 446.

4. On cross examination of the investigating officer, appellant's counsel sought to elicit answers to questions concerning the victim's statements made to the officer during the course of his investigation. The state objected and, outside the presence of the jury, appellant's counsel stated that he wished to use the witness' answers to impeach the victim's testimony, by establishing that she had omitted to report to the witness all of the circumstances of the crime to which she had testified in court. The court sustained the objection and prohibited inquiry into the victim's prior statements to the witness.

Code Ann. § 38-1803 provides, inter alia: "A witness may be impeached by contradictory statements previously made by him as to matters relevant to his testimony and to the case." We need not decide if a prior statement may be "contradictory" because it merely Omits details which are subsequently testified to since the trial scenario revealed by the transcript shows that, here, the court correctly excluded the testimony sought to be elicited for the purposes of impeaching the victim, an earlier witness. Code Ann. § 38-1803 further provides: "Before contradictory statements may be proved against him . . . , the time, place, person and circumstances attending the former statement shall be called to his mind with as much certainty as possible . . ." No such foundation was laid by appellant's counsel when the victim was testifying. Smith v. Payne, 85 Ga.App. 693, 700, 70 S.E.2d 163 (1952). There was no error.

5. The state called as one of its witnesses the Director of the Savannah Branch Crime Lab, who was duly qualified as an expert witness in the field of chemical analysis. During the course of direct examination this witness was questioned concerning his examination of certain items of evidence obtained from the victim on the night of the alleged crime. The witness testified that his examination of various slides revealed the presence of " complete or intact sperms." He was then asked: "From your experience in cases that you've examined how long would a sperm stay intact like that?" Over appellant's objection, the witness was allowed to testify that ". . . over the past three years I have kept records on those cases where the information was available, the alledged (sic) time of incidents and the time of examination, at the time in which the slides were prepared. And I use the number of fourteen hours as the time period at which I would not expect to find spermatazoa, at which I have never found spermatazoa in any of the cases that I have a record of the time period."

It is urged on appeal that it was error to allow this opinion testimony into evidence. We do not agree. "The opinions of experts, or any question of science, skill, trade or like questions, shall always be admissible . . ." Code Ann. § 38-1710. The witness had personally examined the slides in question and had conducted chemical tests and analysis on them. " 'The opinion of an expert on any question relating to his profession, trade, or business is always admissible, . . . where, as here, the expert has himself observed the facts, and gives his opinion based upon his own observation. (Cits.)' " Bullington v. Chandler, 110 Ga.App. 803, 804, 140 S.E.2d 59, 61 (1964). "(A)n expert witness can express his opinion . . . upon proof being made that he was in a position to form an expert opinion, without the necessity of stating the facts forming the basis of his conclusion. (Cits.)" Morgan v. Bell, 189 Ga. 432, 437, 5 S.E.2d 897, 901 (1939). However, the fact that the expert witness Did relate the basis for his conclusion that the evidence was no more than fourteen hours old comparison of the results with prior analyses did not render erroneous the allowance of the expert opinion testimony. Cf. Finley v. Franklin Aluminum Co., 132 Ga.App. 70, 72(3), 207 S.E.2d 543 (1974). "Where the testimony of an expert is competent, he may be permitted to give the details of experiments on which his testimony is based." Frank v. State, 141 Ga. 243, 244(4), 80 S.E. 1016 (1914). Thus, the testimony was admissible on the basis of his previous experience and personal observation. Fountain v. State, 228 Ga. 306, 308(5), 185 S.E.2d 62 (1971).

6. Some three weeks before trial and some four months after arrest, appellant filed a motion entitled "Right to Test," seeking an independent test and comparison by his own experts of both his and the victim's clothing and " any other physical evidence which the state acting by and through the District Attorney or his assistant intend or may use upon the trial of said case . . ." This motion was denied.

Citing Patterson v. State, 238 Ga. 204, 232 S.E.2d 233 (1977), appellant urges that denial of this motion was error. We do not agree. In Patterson, supra at 206, 232 S.E.2d at 234, it was held that "(w)here the defendant's conviction or acquittal is dependent upon the identification of the substance as contraband, due process of law requires that analysis of the substance not be left completely within the province of the state. (Cits.)" In subsequent decisions, this holding has been explicated. In Moore v. State, 240 Ga. 807, 814, 243 S.E.2d 1, 6 (1978), the defendant sought an independent test of " 'hair samples, blood samples, saliva samples, footprints, tire tracks, and ballistics tests of rifles and bullets' " evidence very similar to that which appellant in the instant case now urges (but did not specifically delineate in his "Right to Test" motion) he should have been allowed to test independently of the state. In Moore, the Supreme Court viewed the "holding in Patterson as requiring no more than that an opportunity to examine an allegedly improper substance for identification purposes must be provided in an...