Martin v. State
| Decision Date | 24 June 1982 |
| Docket Number | No. 63847,63847 |
| Citation | 292 S.E.2d 864,162 Ga.App. 703 |
| Parties | MARTIN v. The STATE. |
| Court | Georgia Court of Appeals |
Kennedy R. Packer, Athens, for appellant.
Harry N. Gordon, Dist. Atty., B. Thomas Cook, Robert Elkins, Asst. Dist. Attys., Athens, for appellee.
Appellant Martin and one Bolds were jointly indicted, tried, and convicted of attempt to rob. Lord, the victim, went to his car between 9:30 and 10:00 p.m. and noticed damage in the convertible top apparently caused by a knife. At that time two persons approached with a gun and told him to throw out his money, jewelry and tapes, and drive off. The victim did so but, seeing the robbers approaching the loot, threw the car into reverse and they ran away. The victim later identified both defendants, although he at first made some errors in regard to Martin's identity, whereas he was very definite as to Bolds. Two other witnesses in the vicinity of the restaurant near which the incident occurred testified to seeing Martin and Bolds together at about the same time, one of whom testified that he saw them running from the parking lot.
1. Appellant Martin attempted to bar the victim's identification as unreliable because it differed in some respects from that of other witnesses, and because, while immediately identifying Bolds, he at first misidentified a bystander. A witness may of course be impeached by previous contradictory statements (Code § 38-1803). Such statements are admissible, but are not a ground for excluding the testimony. The contradictions may be considered by the jury as going to his credibility. Simmons v. State, 220 Ga. 881, 142 S.E.2d 798 (1965). No suggestive conduct was established on the part of the peace officers in regard to photographic identification.
2. The mere fact that testimony as to one of two codefendants is stronger than that linking the other to the crime does not demand a finding that the denial of a motion to sever is an abuse of discretion. Code § 27-2101; Kelley v. State, 248 Ga. 133, 281 S.E.2d 589 (1981); Kates v. State, 152 Ga.App. 29(7), 262 S.E.2d 221 (1979). It has frequently been stated that the court, in exercising this discretion, should consider whether the number of defendants will create confusion during the trial; whether the strength of the evidence against one defendant will engulf the other with a "spillover" effect, and whether the defendants' claims are antagonistic to each other's rights. Cain v. State, 235 Ga. 128, 129, 218 S.E.2d 856 (1975). The claims were not antagonistic. In considering the motion the court made an investigation in which it appeared that both defendants took the position they were not present and did not participate in the robbery. The facts do not fall under the rule applied in Crawford v. State, 148 Ga.App. 523, 526, 251 S.E.2d 602 (1978), where the evidence against Crawford was held to be slight "he should not be convicted merely by association." Id. p. 526, 251 S.E.2d 602. Martin and his codefendant made no claim that they were not together at the time of the robbery and this fact was established by three witnesses who also placed them in the vicinity of the vandalized automobile very shortly before or at the time of the robbery attempt.
3. Appellant further urges, moreover, that the court was aware at the time of the motion to sever that the state intended to introduce a polygraph expert who in fact did testify over objection that he examined the codefendant by this method and that his results indicated the codefendant was lying when he denied being present or helping anyone to rob the victim. He contends that such testimony is equivalent to those cases in which a codefendant confesses a crime, incriminating others jointly tried, which is held to amount to a violation of his Sixth Amendment right to confrontation with a codefendant who does not take the stand. That admission of testimony regarding the confession of a codefendant jointly tried is usually erroneous where the codefendant does not testify so as to be subject to cross examination, see Bruton v. United States, 391 U.S. 123, 88 S.Ct. 1620, 20 L.Ed.2d 476 (1968); Rachel v. State, 247 Ga. 130(4), 274 S.E.2d 475 (1981); Hannah v. State, 144 Ga.App. 677, 242 S.E.2d 334 (1978). There are of course exceptions to the rule. Butler v. State, 156 Ga.App. 89, 274 S.E.2d 104 (1980); Knowles v. State, 246 Ga. 378(4), 271 S.E.2d 615 (1980).
As to polygraph tests, the former rule in this state, and still a majority rule in many states, is that the tests are inadmissible under all circumstances. Famber v. State, 134 Ga.App. 112, 113, 213 S.E.2d 525 (1975), and see Stack v. State, 234 Ga. 19(1), 214 S.E.2d 514 (1975); Scott v. State, 238 Ga. 30, 230 S.E.2d 857 (1976). Famber was overruled in State v. Chambers, 240 Ga. 76, 239 S.E.2d 324 (1977), which joined the group of states presently holding that the results of polygraph examinations are admissible when the parties so stipulate prior to the test, as opinion evidence offered to discredit or impeach the subject. Jury instructions were given as approved in Chambers to the effect that the weight to be accorded such evidence is entirely for the jury.
We have found no case in which the exact issue has been raised. In State v. Stanislawski, 62 Wis.2d 730, 216 N.W.2d 8 (1974), a rape conviction was reversed because of the refusal of the court to admit the results of two lie detector tests, one of which tended to show that the defendant was truthful in denying the rape and other that the prosecuting witness was untruthful in accusing him, on the ground that the action was an abuse of discretion. The court nevertheless set out the following guidelines for allowing one who had administered a polygraph test to testify as an expert witness: (1) that both sides have stipulated the prospective results may be used in evidence by either side, (2) subject to the discretion of the court in certain stated particulars, such as his satisfaction with the credentials of the examiner and the method of administration, (3) subject to the right of cross examination of the examiner, and (4) that the jury is instructed that the examiner's testimony "does not tend to prove or disprove any element of the crime but only tends to indicate whether at the time of the examination the...
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