Mercer v. State
| Decision Date | 02 February 1984 |
| Docket Number | No. 67664,67664 |
| Citation | 314 S.E.2d 729,169 Ga.App. 723 |
| Parties | MERCER v. The STATE. |
| Court | Georgia Court of Appeals |
W. Emory Walters, Ocilla, Cheryle T. Bryan, Ashburn, for appellant.
Hobart M. Hind, Dist. Atty., Britt R. Priddy and John W. Hogg, Asst. Dist. Attys., for appellee.
The appellant, Raymond Mercer, Jr., was convicted of burglary, for which he received a sentence of six years imprisonment followed by fourteen years probation. This appeal followed.
At approximately 6:15 a.m. on October 4, 1982, as he approached an entrance to the Albany Mall to unlock it before the maintenance personnel arrived to work, Ferrell Williams, the mall maintenance supervisor, observed a police patrol car parked in a loading dock area. Upon entering the mall area, he discovered the maintenance office door unlocked and the lights on. As he began his rounds, he noticed a uniformed police officer in the mall office, which was adjacent to the maintenance office. He was unable to see the officer's face, because the officer immediately hid in the shadows, but he generally described the officer as a white male, approximately five feet nine inches tall, and heavy set (as was the appellant). Williams chose not to confront the officer at that time, but continued his rounds and approximately 12-13 minutes later contacted the police to report the suspected burglary.
Shortly after 7:00 a.m. other police officers arrived in response to the call, and the appellant himself appeared at the scene during the initial investigation. The investigation revealed that only two walkie talkie radios and battery chargers (valued at over $2,000) had been taken from the mall office. The office had been entered through the ceiling in its conference room. A stairway in the adjoining maintenance office led to the loft area of the ceiling over the conference room. One ceiling tile had been removed, and a 2 X 4 board approximately ten feet long had been lowered through that opening to the floor. The ceiling area and the mall office were dusted for latent fingerprints, and a total of 22 prints were found on the removed ceiling tile, the ceiling tile channelling, and a fluorescent light bulb. Five of those fingerprints were those of the appellant.
After his fingerprints were identified, the appellant explained that when he had appeared at the scene of the burglary, he had inspected the ceiling loft area to see if he could find any evidence in aid of the investigation, and that he had stumbled; to prevent falling through the ceiling he remembered grabbing a styrofoam bell and perhaps the wall but he did not know what else he may have touched. He further explained that he had not mentioned the incident at the time for fear of being chastised for messing up the crime scene. The police officer who identified the appellant's fingerprints, and who qualified as an expert on fingerprint comparison, however, opined that the appellant's fingerprints could not have been impressed on the ceiling tile, channelling, and fluorescent bulb while grabbing those objects to prevent a fall.
Other circumstantial evidence adduced against the appellant included the fact that the appellant collected radios, and the appellant's knowledge that the police officer, normally responsible for the patrol beat in which the Albany Mall was located, was getting off duty two hours early at 6:00 a.m. (The appellant actually had been assigned the duty of covering this beat for the remainder of the shift, but it was in dispute as to whether the appellant had been officially notified of the assignment.) The evidence also showed that at approximately 6:20 a.m., the appellant's supervising sergeant called the appellant via radio to schedule a rendezvous at a department store parking lot and that the two did meet there for a few minutes at approximately 6:35 a.m.
On appeal, Mercer contends that the evidence, and primarily the fingerprint evidence, was insufficient to support the conviction; that the trial court's instruction to the jury on circumstantial evidence was incomplete and misleading; that the trial court erred in not instructing the jury that the state had the burden of proving that the fingerprints could only have been left on the scene during the commission of the crime; that a mistrial notwithstanding the verdict should have been declared upon the discovery of some verbal contact between the bailiff and a juror after the jury had begun its deliberations; that the trial court erred in restricting cross examination of one witness; that the trial court erred in not striking the testimony of the fingerprint expert witness because the state failed to comply with the defense's timely, statutory request for scientific reports; and that the trial court erred in disallowing defense counsel to talk with a state's witness because the rule of sequestration had been invoked. Held:
1. To sustain a conviction which is based solely on fingerprint evidence, "the fingerprints corresponding to those of the accused must have been found in the place where the crime was committed, under such circumstances that they could only have been impressed at the time when the crime was committed." Anthony v. State, 85 Ga.App. 119, 121, 68 S.E.2d 150 (1951); Jeffares v. State, 162 Ga.App. 36, 290 S.E.2d 123 (1982); Barnett v. State, 153 Ga.App. 430, 265 S.E.2d 348 (1980). Where there is additional circumstantial evidence, however, a conviction is warranted if the proved facts are consistent with the hypothesis of guilty and exclude every other reasonable hypothesis save that of guilt. OCGA § 24-4-6 (Code Ann. § 38-109); Vaughn v. State, 136 Ga.App. 54, 220 S.E.2d 66 (1975); Barnett v. State, supra.
In this case, the various circumstances adduced in addition to the fingerprint evidence included: the burglarized premises were located in the appellant's temporarily assigned patrol beat; the appellant was on duty at the time of the burglary; one witness observed a patrol car in the mall parking lot and a uniformed officer in the burglarized premises; and the appellant collected radios. The appellant accounted for the presence of his fingerprints on the bulb, ceiling tile, and ceiling channelling by explaining that he had stumbled in the loft area and evidently had touched those items to break his fall. The state's fingerprint expert, however, did not believe that the prints could have been impressed in the act of stumbling or falling. The appellant's explanation having thus been contradicted, we find the fingerprint evidence, along with the other circumstantial evidence, sufficient to exclude every other reasonable hypothesis save that of the appellant's guilt. See Jeffares v. State, supra.
In a related enumeration of error, the appellant contends that the trial court should have instructed the jury that the state had the burden of proving that the appellant's fingerprints could only have been left on the objects during the commission of the burglary. Such an instruction, however, would have been necessary if the conviction was based solely on the fingerprint evidence, but it is inappropriate where other evidence of guilt is adduced. Paxton v. State, 159 Ga.App. 175, 282 S.E.2d 912 (1981); cf. Vaughn v. State, supra.
2. The appellant also contends that the trial court erred in failing to charge, even without a request, that where the evidence and all reasonable deductions therefrom present two theories, one of guilt and the other consistent with innocence, the defendant should be acquitted. Even though a defendant in a criminal case is exempt from the strict requirements imposed upon litigants in civil cases to preserve an issue on the giving of or failure to give a jury charge, this does not relieve the criminal defendant from requesting instructions "except in those circumstances where the omission is clearly harmful and erroneous as a matter of law in that it fails to provide the jury with the proper guidelines for determining guilt or innocence." Spear v. State, 230 Ga. 74, 75, 195 S.E.2d 397 (1973); Aldridge v. State, 236 Ga. 773, 776, 225 S.E.2d 421 (1976); Yeargin v. State, 164 Ga.App. 835, 298 S.E.2d 606 (1982). The instant case does not appear to fall within that "clearly harmful" category.
In contending that the trial court should have given the "two theories" charge, the appellant relies upon Fleming v. State, 137 Ga.App. 805, 224 S.E.2d 792 (1976) and Nolen v. State, 124 Ga.App. 593, 184 S.E.2d 674 (1971). Fleming, however, does not actually address the issue of whether failure to give such a charge constitutes reversible error, and Nolen discusses the "two theories" proposition in reviewing the sufficiency of the evidence to sustain a conviction. We note further that this court in Nolen, and subsequent cases, actually discredited this notorious charge. See Griffis v. State, 163 Ga.App. 491, 295 S.E.2d 197 (1982).
It has been held, however, that "where the guilt of a defendant depends wholly upon circumstantial evidence, it is error not to instruct the jury that the defendant should be acquitted unless the hypothesis of his guilt is more reasonable than any other hypothesis which can be drawn from the circumstances ..." Middleton v. State, 7 Ga.App. 1, 3, 66 S.E. 22 (1909); accord, Riley v. State, 1 Ga.App. 651, 57 S.E. 1031 (1907). This does not create an absurd rule that...
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