Prater v. State

• Decision Date: 03 April 1979
• Docket Number: No. 56458,56458
• Citation: 253 S.E.2d 223,148 Ga.App. 831
• Parties: PRATER v. The STATE.
• Court: Georgia Court of Appeals

Page 223

253 S.E.2d 223

148 Ga.App. 831

PRATER v. The STATE.

No. 56458.

Court of Appeals of Georgia.

Submitted Sept. 12, 1978.

Decided Jan. 18, 1979.

Rehearing Denied Feb. 1, 1979.

Certiorari Denied April 3, 1979.

Cook & Palmour, Bobby Lee Cook, Bobby Lee Cook, Jr., A. Cecil Palmour, Summerville, for appellant.

Charles A. Pannell, Jr., Dist. Atty., James E. Bethel, Asst. Dist. Atty., Erwin Mitchell, Dalton, for appellee.

SMITH, Judge.

Tommy Prater was indicted for one count of burglary and two counts of armed robbery in connection with the 1975 burglary of the home of Mr. and Mrs. Odell Edwards and the gunpoint robbery of them therein. Found guilty and sentenced on all three counts, he brings this appeal contesting (1) the use of evidence of other alleged crimes; (2) the trial court's refusal to grant a mistrial following a witness' unresponsive interjection of reputation evidence; (3) an allegedly improper question asked by the assistant district attorney; (4) the charge on conspiracy; (5) the admission of former testimony; (6) the admission of wiretap evidence; and (7) the admission of allegedly tainted in-court and out-of-court identifications. We find no error and affirm.

The Edwards burglary and robbery was one of six very similar crimes which occurred in the same general area of northwest Georgia, northeast Alabama, and southern Tennessee during a one-year period. Because of the similarity of the victims, the items taken, and the methods of operation in these several crimes, the state introduced evidence of Prater's involvement in them. One of the crimes was the robbery of Mrs. Joseph Proctor in Tennessee. Prater and two confederates were charged with the Proctor robbery, and at a commitment hearing in Tennessee one of the accomplices, Bernard Weinthal, offered testimony inculpating Prater. At extradition proceedings in Tennessee held for the purpose of returning Prater to Georgia to be tried in connection with the Edwards burglary, Weinthal again implicated Prater. Prior to this trial, Weinthal died, and his former testimony was offered by the state. The conviction was further supported by evidence gained through a court-ordered wiretap and by the identification of Prater by three eyewitnesses to the Edwards burglary and robbery. Further facts will be set out as necessary in the following discussion.

1. Other alleged crimes. The appellant asserts reversible error resulted from the admission of evidence concerning six robberies not the subject of the instant prosecution, particularly the Proctor robbery. The enumeration is based on a lack of similarity between the independent crimes and the crime for which Prater was being tried. The record amply details sufficient similarities so that proof of each separate crime was relevant to the proof of either motive, plan, scheme, bent of mind, or course of conduct (Hamilton v. State, 239 Ga. 72, 75, 235 S.E.2d 515 (1977)) without being unduly prejudicial. Tuzman v. State, 145 Ga.App. 761(1), 244 S.E.2d 882 (1978).

2. Impermissible character and reputation evidence. We conclude the trial court did not abuse its discretion in overruling a motion for mistrial following an unresponsive interjection of extraneous, prejudicial matter by a state witness. "Motions for mistrial are largely in the discretion of the trial judge, especially where the cause of the motion lies in the voluntary remark of a witness not invited by the court or counsel, and, where the jury is properly instructed and the remark is not so flagrantly prejudicial as to violate the fair trial rights of the defendant, the court's discretion will not be overturned." Holcomb v. State, 130 Ga.App. 154, 155, 202 S.E.2d 529, 531 (1973). The appellant contends the remark here was just such a "flagrantly prejudicial" one; we disagree.

The witness, on cross examination, was responding to questioning about when he first talked to state investigators concerning the appellant. At one point, the witness said, "I got together with Mr. Mitchell (the special prosecutor) after, I think, Tommy was locked up . . . No, it was before, because I told Mr. Mitchell I didn't want to be exposed because I was afraid Tommy might have me killed." No objection or motion was there interposed. A few moments later, as this line of inquiry continued, the witness said, ". . . and I told Mr. Mitchell the reason I didn't want to come earlier, before Tommy was locked up, because I was scared Tommy would have me killed. And that's Tommy's reputation having things done." At this point, a motion for mistrial was made and overruled, but the court sternly cautioned the jury to disregard the previous comments. In ruling that the above comments do not mandate the grant of a mistrial, we follow the holdings in Woods v. State, 233 Ga. 495(II.), 212 S.E.2d 322 (1975) (testimony that witness met defendant in prison); Cross v. State, 136 Ga.App. 400(4), 221 S.E.2d 615 (1975) (testimony that defendant recognized by witness as a "criminal element"); Frazier v. State, 141 Ga.App. 205, 233 S.E.2d 51 (1977) (testimony implying that defendant had confessed); and numerous other cases cited therein.

Our recent decision in Boyd v. State, 146 Ga.App. 359, 246 S.E.2d 396 (1978), is distinguishable. There, the prejudicial, unresponsive remark came from a police officer who was presumed to have known the inadmissible nature of the hearsay, character testimony he interjected. Here, a lay witness offered the remark. Moreover, his remark followed a previous, similar remark which passed without objection. Thus, the element of prosecutorial culpability present in Boyd is lacking here.

3. Alleged improper question. The complained-of question by the assistant district attorney, if improper, was only marginally so, and we do not hesitate to hold that the trial court's immediate cautionary instructions cured any error and obviated any need for a mistrial. E. g., Truitt v. State, 146 Ga.App. 231, 246 S.E.2d 141 (1978).

4. The charge. "Failure to charge in the exact language requested, where the charge given substantially covered the same principles is not error." Cohran v. State, 141 Ga.App. 4, 5, 232 S.E.2d 355, 356 (1977). The enumeration directed toward the charge on conspiracy is without merit.

5. Former testimony. During the trial the state was permitted to prove the testimony of Bernard Weinthal given at two previous judicial proceedings in Tennessee, a commitment hearing against Prater in the Proctor burglary, and an extradition hearing to determine whether Prater should be returned to Georgia to stand trial in the current matter. There is no dispute that Weinthal's former testimony was given under oath, that Prater was represented by counsel at both hearings, that his counsel had the opportunity to, and did in fact, cross examine Weinthal, and that Weinthal died prior to Prater's Georgia trial. Timely objection was made on the dual grounds that Weinthal's former testimony is inadmissible hearsay and that its admission violated Prater's constitutional right to confrontation. We conclude that proof of Weinthal's former testimony is not objectionable on either ground urged.

For purposes of analytical clarity, we emphasize that whether this evidence is admissible as a matter of Georgia evidence law, and whether it is admissible as a matter of federal constitutional law, are two distinct questions. As the Supreme Court said in California v. Green, 399 U.S. 149, 155, 90 S.Ct. 1930, 1933, 1944, 26 L.Ed.2d 489 (1970), "While it may readily be conceded that hearsay rules and the Confrontation Clause are generally designed to protect similar values, it is quite a different thing to suggest that the overlap is complete and that the Confrontation Clause is nothing more or less than a codification of the rules of hearsay and their exceptions as they existed historically at common law. Our decisions have never established such a congruence; indeed, we have more than once found a violation of confrontation values even though the statements in issue were admitted under an arguably recognized hearsay exception. (Cits.) The converse is equally true: merely because evidence is admitted in violation of a long-established hearsay rule does not lead to the automatic conclusion that confrontation rights have been denied." It follows that Weinthal's former testimony must clear two hurdles Georgia evidentiary and federal constitutional to be properly admissible; we therefore will consider the two issues separately.

A. Hearsay and the § 38-314 exception. Any evidence proving the substance of Weinthal's testimony in the previous proceedings would unquestionably be hearsay (Code § 38-301), but we find the former testimony here to fall properly within the exception carved by Code § 38-314 which allows proof of "(t)he testimony of a witness, since deceased, . . . given under oath on a former trial, upon substantially the same issue and between substantially the same parties . . ." The appellant quite accurately has highlighted the differences between the parties and issues in the Tennessee hearings and the parties and issues in the current trial. We candidly admit that the differences here are probably as considerable, or more so, than the differences in any previously decided case allowing former testimony under § 38-314. However, we feel that an enlightened view of § 38-314 supports our conclusion that the parties and issues are substantially the same.

Judicial interpretations of § 38-314 have long emphasized the requirement that the parties and issues need be only Substantially the same. In Gavan v. Ellsworth, 45 Ga. 283, 288 (1872), a witness who had testified at a commitment hearing on an assault-with-intent-to-murder charge was unavailable to testify in a civil action thereafter brought against the same defendant based upon the same incident. Proof of the former testimony at the criminal proceeding was admitted at the civil trial, and the Supreme Court found...