Patterson v. State
| Decision Date | 05 February 1975 |
| Docket Number | No. 29319,29319 |
| Citation | 233 Ga. 724,213 S.E.2d 612 |
| Parties | Eugene PATTERSON v. The STATE. |
| Court | Georgia Supreme Court |
Bennett, Saliba & Wisenbaker, James T. Bennett, Jr., Valdosta, Byrd, Groover & Buford, Denmark Groover, Jr., Macon, Fred L. Belcher, Nashville, for appellant.
Vickers Neugent, Dist. Atty., Pearson, Arthur K. Bolton, Atty. Gen., Lois F. Oakley, Atlanta, for appellee.
Syllabus Opinion by the Court
Eugene Patterson was convicted and sentenced to ten years' imprisonment for the August 7, 1972 armed robbery of the Bank of Ray City in Ray City, Georgia.
Briefly, the state's evidence showed that the Bank of Ray City had been robbed at approximately 10:15 a.m. on August 7, 1972, by three black men, one of whom wore a wine colored shirt, and one of whom wore a gold colored shirt. They wore no masks. Patterson was identified positively at a pre-trial lineup and at trial by two of the bank's employees as the gold-shirted robber. Additionally, the state introduced evidence that two shirts matching the foregoing descriptions and two stocking masks had been found the next day in a ditch, and the gold shirt bore a laundry tag with a number that matched a record of the Big B Cleaners in nearby Valdosta, Georgia, showing that such a tag had been affixed to a gold shirt which was brought to the laundry some five months before by someone giving the name Mary Patterson. Patterson's evidence showed that his wife's name was Mary. Another state witness testified that shortly after 10:00 a.m. on August 7 she had seen an automobile of the same body style as a 1972 Grand Prix Pontiac, of the color 'Shadow Gold,' driven by a black man, stop near her house a block or two from the bank, and pick up two other black men one of whom wore a wine colored shirt, and then proceed in the direction of the bank. It was shown that on the day of the robbery Patterson's brother Willie owned a 1972 Shadow Gold, Grand Prix Pontiac. A witness testified that he had seen Patterson driving Willie's car on numerous occasions, and saw him driving it on the morning of the robbery. Another witness testified that on the day of the robbery Willie was not driving his own car, but was driving Patterson's pickup truck.
Patterson testified in his own behalf with supporting witnesses that he was elsewhere at the time of the robbery, and that there was another Mary Patterson who lived in Valdosta.
1. Enumeration 5 complains of the admission of all testimony concerning Willie's Grand Prix automobile, on the grounds that it is irrelevant, immaterial, and harmful, and that nothing connects Patterson to the automobile nor the automobile to the robbery. The brief evidentiary summary above shows that this enumeration is without merit. The state's evidence concerning the automobile tended to show that the robbers used such an automobile and that Patterson had access to such an automobile and was actually driving it on the day of the robbery. If an item of evidence has a tendency to establish a fact in issue, that is sufficient to make it relevant and admissible. Green, The Georgia Law of Evidence, § 61 (1957). 'Every fact or circumstance serving to elucidate or throw light upon the issue being tried, constitutes proper evidence in the case.' Georgia Savings Bank & Trust Co. v. Marshall, 207 Ga. 314(1), 61 S.E.2d 469. This general objection to the admission of evidence concerning Willie's automobile is without merit.
2. Enumeration 3 urges error in the admission of four items of testimony concerning the gold shirt. First, the testimony of the witness Rouse, an employee of the Big B Cleaners, was objected to on the ground that she had no independent recollection of the person who brought the shirt in for cleaning and could not testify as to who it was whose name she had written as Mary Patterson. The gist of this objection is that Rouse could not testify that Patterson's wife brought the shirt in, and that this gap in the proof renders the evidence inadmissible; but this misconceives the nature of circumstantial evidence which by definition points only indirectly toward the conclusion sought by the state. 'The question of admissibility of circumstantial evidence is largely in the discretion of the trial court; and where facts are such that the jury, if permitted to hear them, may or may not make an inference pertinent to the issue, according to the view which they may take of such facts in connection with other facts in evidence, it is not error to permit the jury to hear them.' Bond v. State, 104 Ga.App. 627, 632, 122 S.E.2d 310, 315. This testimony was properly admitted.
Next, Patterson urges that the testimony of Greeson, an agent with the Division of Investigation, concerning a certain gold shirt, was improperly admitted because there was no competent connection between the shirt and Patterson, and because Greeson's testimony was hearsay. Greeson testified that after the shirts and stocking masks were found the Sheriff of Berrien County reported that fact to Greeson and as a result of the report Greeson took the items to the bank for viewing by the bank employees and traced the laundry tag in the yellow shirt to the Big B Cleaners, getting a name from them. He testified that other witnesses described a Pontiac as the robbers' possible vehicle, and that his investigation of recent Pontiac purchasers turned up the same name as the laundry ticket-Patterson. Further investigations resulted in Greeson's arresting appellant Patterson. The state offered this testimony under the authority of Code § 38-302 allowing hearsay to be admitted as original evidence to explain conduct, to explain Greeson's steps in pursuing the investigation. The admission of it on this basis was not error. The link between Patterson and the yellow shirt did not rest on Greeson's testimony, but was independently brought out by the witnesses from the laundry; by the bank witnesses who positively identified Patterson and testified to his wearing a gold shirt; and by Patterson himself who testified that he owned such a shirt and that he would not say definitely that the state's exhibit 9 (the gold shirt) was his, but that it might be. Therefore, the state did not utilize Greeson's testimony with reference to the shirt for more than it claimed in offering it-to explain his conduct-and its admission for this purpose was not error.
Specific objection is made to the following testimony of Greeson concerning his interrogation of Patterson: 'And, I also told him (Patterson) that the shirt had been placed in the cleaners at Valdosta by a Mary Patterson, which was his wife.' This is claimed to be hearsay and a conclusion by Greeson. This was not hearsay because it was not offered to tell the jury that Patterson's wife took the shirt to the cleaners, but to tell the jury that Greeson argued to Patterson that Patterson's wife evidently took the shirt to the cleaners. '(W)e should exclude from hearsay out-of-court statements offered in proof, not because of the fact asserted in such statement but merely as proof that such a statement was made.' Green, supra, § 218. Under the same analysis, this testimony is not subject to the objection that it was a conclusion of the witness.
Finally, objection is made that the witness Harris, who owned Big B Cleaners, testified 'that's the shirt' when shown the state's exhibit 9, thus identifying it as the shirt to which the dry cleaning tag had initially been affixed, and that the trial court refused to strike the sentence. Any error in refusing to strike this sentence was harmless, since Harris readily admitted that he had no independent recollection from which he could say that the shirt put in the cleaners on the Mary Patterson ticket was actually the shirt found in the ditch.
For the foregoing reasons, there is no merit in Enumeration 3. To Patterson's argument that the state may not prove its case by piling inference on inference (concerning the robber, the shirt, the laundry, and Patterson's wife) we answer that this is not solely a circumstantial evidence case: two eyewitnesses positively and unswervingly identified Patterson as one of the three bank robbers. The 'shirt evidence' need not be independently adequate to convict, to be admissible in this case.
3. Enumeration 4, in conclusory fashion, alleges error in the admission of state's exhibits 7, 8, 9 and 10-the laundry ticket, the wine colored shirt, the gold colored shirt, and the stocking masks-on grounds that their connection with Patterson is too tenuous to allow their admission. What goes before is adequate to show that the items were properly admitted. The stocking masks were not used in this crime, but as they were found with the shirts which were identified by the bank employees, there was no error in admitting them.
4. The court instructed the jury that although Patterson was not compelled to give testimony, he had been sworn, examined and cross examined, and his evidence should be weighed with all the other evidence in deciding guilt or innocence. In his Enumeration 7, Patterson urges that having called attention to his having testified, the court should have gone further and instructed the jury that his evidence had the same standing as any other witness' despite his being accused of crime. Nothing in the record indicates that Patterson requested such an instruction, and Georgia law does not require that such be given. Jester v. State, 131 Ga.App. 269, 205 S.E.2d 444.
5. Enumeration 8 concerns the following instruction: ...
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