Moore v. State

• Decision Date: 07 January 1966
• Docket Number: No. 23069,23069
• Citation: 221 Ga. 636,146 S.E.2d 895
• Parties: Keith Donald MOORE v. The STATE.
• Court: Georgia Supreme Court

Page 895

146 S.E.2d 895

221 Ga. 636

Keith Donald MOORE v. The STATE.

No. 23069.

Supreme Court of Georgia.

Jan. 7, 1966.

Syllabus by the Court

1. Testimony concerning other crimes committed by the defendant is admissible if such testimony aids in identification and shows the state of mind, plan, motive, and scheme of the accused.

2. The right of cross-examination, thorough and sifting, shall belong to every party as to the witnesses called against him. Code § 38-1705. However, the scope of the cross-examination rests largely within the discretion of the trial judge and he has the right to impose reasonable limitations on the cross-examination of witnesses.

3. Where a prima facie showing is made by the State that a confession is freely and voluntarily made, 'without being induced by another, by the slightest hope of benefit or remotest fear of injury,' (Code § 38-411), it is admissible in evidence.

4. Grounds 21, 22, and 23 of the motion for new trial do not show reversible error.

5. It was error to admit in evidence the opinion of an expert witness in regard to the sanity of the defendant based on information received from others.

6, 7, 8. There is no merit in grounds 27, 28, 29, 30, 31, 32, and 33 of the motion for new trial.

9. The verdict was authorized by the evidence.

James O. Goggins, Atlanta, for plaintiff in error.

Lewis R. Slaton, Sol. Gen., Carter Goode, J. Walter LeCraw, George K. McPherson, Jr., Arthur K. Bolton, Atty. Gen., J. R. Parham, Atlanta, for defendant in error.

COOK, Justice.

Keith Donald Moore was charged with robbery by the use of an offensive weapon. The indictment alleged that the crime was committed on June 26, 1964, by threatening two named persons with a pistol and taking from them the sum of $23,200, the property of The Citizens & Southern National Bank. The jury found the accused guilty and recommended mercy. His motion for new trial on the general grounds was amended by the addition of thirty special grounds, and the exception is to the denial of the motion for new trial as amended. The bill of exceptions states that ground 13 is not insisted on.

1. On the trial of the case testimony was introduced in connection with the robbery of a branch of The Citizens & Southern Bank, located at 3005 Peachtree Road, Atlanta, on June 26, 1964, and an attempted robbery of the same bank on December 9, 1964, in which attempt the defendant was apprehended. In special grounds 4, 5, 6, and 7 it is asserted that it was error to admit in evidence, over objection of the defendant, testimony relating the events transpiring at the time of the attempted robbery in December. In grounds 10, 16, 17, 18, 19, and 20 it is asserted that it was error to admit in evidence exhibits in connection with the attempted robbery in December. This testimony was allowed by the trial judge with instructions to the jury that it was admitted for the purpose of showing identification and showing the state of mind, plan, motive, and scheme of the defendant, and for no other purpose.

'On a prosecution for a particular crime, evidence which in any manner shows or tends to show that the accused has committed another crime wholly distinct, independent, and separate from that for which he is on trial, even though it be a crime of the same sort, is irrelevant and inadmissible, unless there be shown some logicial connection between the two from which it can be said that proof of the one tends to establish the other.' Bacon v. State, 209 Ga. 261, 71 S.E.2d 615; Henderson v. State, 209 Ga. 72, 70 S.E.2d 713; Rosborough v. State, 209 Ga. 362, 72 S.E.2d 717; Wilson v. State, 212 Ga. 412(2), 93 S.E.2d 354. There are many unanimous decisions of this court holding that testimony concerning other crimes is admissible if such testimony aids in identification and shows the state of mind, plan, motive, and scheme of the accused.

Two of the witnesses whose testimony is claimed to have been improperly admitted in the present case, Mrs. Suzanne Ingle and Mrs. Ailene Ahern, testified that they were employees of the bank at the time of the robbery in June and the attempted robbery in December, and they positively identified the defendant as the perpetrator of both crimes. The evidence showed several points of similarity in the method of operation used in both crimes. Among these were the following: Mrs. Ingle testified that the routine was the same. In both instances the perpetrator of the crime arrived at the bank prior to its opening time, and placed the employees of the bank under coercion as they arrived by threatening them with a pistol. In both instances he forced Mrs. Ingle and Mrs. Ahern to walk around the lobby of the bank. In the June crime the robber procured the keys to the car of Mrs. Ingle in a parking lot, forced her to enter the bank with him, and later used her car to escape from the scene of the robbery. In the December attempt the defendant held Ray West, an employee of the bank, and his family captives during the night before the attempt, and entered the bank with this employee. When he attempted to escape he called Mrs. Ingle by her name 'Ingle' and asked her where her car was. When she told him that she was riding with someone else, he procured a car from one of the officers of the bank, and then forced Mrs. Ingle to dirve the car.

There were sufficient points of similarity in the method of operation in the two crimes to authorize the introduction in evidence of testimony in regard to the attempted robbery in December, and the trial judge did not err in allowing the admission of this testimony for the purposes stated. Compare Green v. State, 172 Ga. 635(3), 158 S.E. 285; Cooper v. State, 182 Ga. 42(3), 184 S.E. 716, 104 A.L.R. 1309; Barkley v. State, 190 Ga. 641(2), 10 S.E.2d 32; Emmett v. State, 195 Ga. 517(3), 25 S.E.2d 9; Fuller v. State, 196 Ga. 237(1), 26 S.E.2d 281.

2. In ground 8 it is asserted that counsel for the defendant was limited in his cross examination of the witness Ray West. Counsel had asked this witness if the room where he was taken to identify the defendant adjoined the room where the other bank employees were, and he had replied that it did. Counsel then asked: 'So it is possible after the first identification was made the other employees could have heard it, isn't that true?' The objection of the solicitor general to the witness testifying as to the 'possibilities' was sustained.

In ground 9 objection is made because the witness Lt. C. J. Strickland, of the Atlanta Police Department, was not allowed to answer the question of counsel for the defendant on cross examination as follows: 'Have we missed any supervisory personnel, would the remaining personnel be detectives, first or second grade?' The solicitor general raised the question of materiality of this testimony, and the judge sustained the objection with the suggestion that the witness might be recalled if it later appeared that the testimony was relevant.

In ground 14 error is assigned on the refusal to allow counsel for the defendant on cross examination to elicit an answer from the witness Ted Simmons to the following question: 'Were you interested in his emotional problem, do you think that would have been in your interview if he----' This witness was a newspaper reporter for the Atlanta Constitution and he had testified concerning incriminating statements made by the defendant to him in an interview after the defendant's arrest. In ground 15 error is assigned because this same witness was not allowed to answer the question: 'Do you know I have been counsel for a libel suit against the Constitution about three years ago?'

'While the right to a cross-examination, thorough and sifting, shall belong to every party as to the witnesses called against him (Code, § 38-1705), yet the scope of the cross-examination rests largely within the discretion of the trial judge, to control this right within reasonable bounds, and his discretion will not be controlled by a reviewing court unless it is abused.' Post v. State, 201 Ga. 81, 84, 39 S.E.2d 1; Gravitt v. State, 220 Ga. 781, 785(6), 141 S.E.2d 893. These grounds do not show an abuse of discretion by the trial judge in limiting the scope of the cross examination of these witnesses.

3. Ground 11 recites the testimony of Angelo M. Robbe, Special Agent with the Federal Bureau of Investigation, not in the presence of the jury, laying the foundation for the admission in evidence of the written confession of the defendant. Ground 12 asserts error in the admission of this confession in evidence, over the objection of counsel for the defendant that the evidence showed that the confession was induced by 'hope of benefit.' Code § 38-411.

Robbe testified that the confession of the defendant was freely and voluntarily made. He stated that he told the defendant that anything he said could be used against him; that he was entitled to counsel; that the witness could not help him. The alleged confession of the defendant was obtained at the time he was in custody after the attempted robbery on December 9. The defendant had told employees of the bank that he was holding certain persons in Tucker, Georgia, as hostages, and he pretended to be talking with an accomplice on electronic equipment. In the testimony laying the foundation for the admission of the defendant's confession in evidence, in response to the question, 'Did you subsequently discuss the June 26 robbery with him?', Robbe stated: 'I did subsequently. I didn't talk to him but about a minute. I asked the question, was there another man on the loose with a rifle. He said no, I am the only one. I knew he had some electronic equipment with him which indicated possibly another person. He said no, there is nothing to this. This is primarily what I wanted to find out. I spoke to him briefly, I just said this: You don't have to say anything but I think it would be helpful if you would and we could iron this all out. He said he wanted...