Redd v. State, 32732

• Decision Date: 21 February 1978
• Docket Number: No. 32732,32732
• Citation: 243 S.E.2d 16,240 Ga. 753
• Parties: Bob REDD, a/k/a Everett O'Neal Redd v. The STATE.
• Court: Georgia Supreme Court

Page 16

243 S.E.2d 16

240 Ga. 753

Bob REDD, a/k/a Everett O'Neal Redd v. The STATE.

No. 32732.

Supreme Court of Georgia.

Feb. 21, 1978.

Pierce & House, Stanley C. House, Augusta, for appellant.

Richard E. Allen, Dist. Atty., Augusta, Arthur K. Bolton, Atty. Gen., Daryl A. Robinson, Staff Asst. Atty. Gen., Atlanta, for appellee.

HALL, Justice.

This is a death case presenting challenges to a warrantless automobile search; to certain medical evidence; and to sentencing procedures. We affirm Redd's convictions but reverse the death sentence for murder and require resentencing.

Redd was convicted of the January 26, 1976 kidnapping and murder of Paul D. Eskew, Sr. He was sentenced to death for the murder, and to life imprisonment for the kidnapping. The state's chief witness was John Morris, a 17 year-old male of borderline intelligence. Morris recounted at trial that he was with Redd when they both followed Eskew from a bar, blocked his attempted exit in his automobile, dragged him to Redd's automobile and drove him to the woods where Redd took his wallet and killed him by beating him with a tire tool and hammer, and slashing his throat twice. Redd then undressed the body and slashed the buttocks. The victim's clothes and the tire tool and hammer were disposed of, as was the victim's wallet, and both men washed the blood from the seat of Redd's automobile.

On February 2, 1976 Redd was arrested, and thereafter his automobile was found behind a pool room in Waynesboro and was impounded by Investigator Warren Martin, who noticed bloodstains on the back seat. Martin had the car removed to the Richmond County jail where it was searched without a warrant. Portions of the stained seat cover and underlying material were chemically tested and found to contain type B human blood, Eskew's blood group. Redd's blood was shown to be type O.

Eskew's decomposed body was found months later in a grave in the woods, and was identified by a blue band on the right wrist and x-rays of the legs which showed the same old fracture lines shown in Eskew's medical records.

1. Redd first challenges the search of his automobile, arguing that it was invalid because not incident to arrest and done without a warrant.

Officer Martin discovered the bloodstains by flashlight. The use of a flashlight to see what would otherwise be in "plain view" falls within the "plain view" standard. United States v. Lee, 274 U.S. 559, 563, 47 S.Ct. 746, 71 L.Ed. 1202 (1927). The bloodstains in plain view on the back seat of defendant's automobile following his arrest in a different location gave officers probable cause to search the car at that point, and we find exigent circumstances authorizing a warrantless search inherent in the surrounding facts even though the car was parked when officers found it. Carlton v. Estelle, 480 F.2d 759, 763-64 (5th Cir. 1973). Therefore, this search might have been made either on the scene or at the station house without procuring a warrant. "In Chambers v. Maroney we held that police officers with probable cause to search an automobile at the scene where it was stopped could constitutionally do so later at the station house without first obtaining a warrant. There, as here, '(t)he probable cause factor' that developed at the scene 'still obtained at the station house.' " Texas v. White, 423 U.S. 67, 68, 96 S.Ct. 304, 305, 46 L.Ed.2d 209 (1975).

A warrant does not have to be obtained just because an automobile might be immobilized and watched until one is obtained. Chambers v. Maroney, 399 U.S. 42, 52, 90 S.Ct. 1975, 26 L.Ed.2d 419 (1970). This search was proper. Accord, Newman v. State, 237 Ga. 376, 379-380, 228 S.E.2d 790 (1976).

The first four enumerations of error are without merit.

2. Enumerations 5 and 6 attacking portions of the testimony of the state's forensic chemist concerning bloodstains on state's exhibits 12 and 13 are without merit.

"Georgia law (Code § 38-1710) provides for the admission of opinions of experts on any question of science, skill, trade, or like questions. It is a matter within the sound discretion of the trial judge as to whether a witness has such learning and experience in a particular art, science or profession as to entitle him to be deemed prima facie an expert. Clover v. State, 129 Ga. 717(9), 59 S.E. 816 (1907); Merrill v. State, 130 Ga.App. 745(5), 204 S.E.2d 632 (1974)." Barrow v. State, 235 Ga. 635, 639, 221 S.E.2d 416, 419 (1975).

The state's forensic chemist was permitted to testify as an expert. In determining that the human blood found on the back seat of Redd's automobile was international blood group B and that the victim's blood group was B, the chemist explained that he used for comparison control samples of stains he had already tested and grouped. This testimony is not invalid, as alleged, on the ground that there is no "proof" that his control samples were correctly grouped. The chemist felt confident of his controls and nothing casts doubt on them. The objection, if allowed, could quickly bog down such expert testimony in an endless process of "proving" the identity of all reagents, controls and chemicals used; and then "proving", perhaps, the accuracy of measuring devices, etc. This is contrary to the purpose of opinion testimony in scientific matters.

Similarly, the trial court did not abuse its discretion in allowing the chemist to testify that only 12 or 14 percent of the population has international blood group B. This is reasonably within his area of expertise. Cf. Bowden v. State, 239 Ga. 821, 826-27, 238 S.E.2d 905 (1977) (fingerprint expert allowed to testify on temperature and evaporation).

3. In Enumeration 7, Redd attacks the state's exhibit 14 which was a document from University Hospital stating Redd's blood group to be O. This was admitted pursuant to the medical records statute, Code Ann. § 38-713 referring to medical records of an "institution" as defined in Code § 88-1901(a). (Code § 38-712(b).) Code § 88-1901(a) requires in pertinent part that an "institution" must be shown to be a building with two or more beds for medical patients and must have a certain classification by the Department of Health. Redd's counsel repeatedly objected in general terms that exhibit 14 did not comply with the statute, in response to which the state introduced testimony of Dr. Howard of the State Crime Laboratory that it operated as a hospital and had numerous beds, etc. The evidence was then admitted. On appeal, for the very first time Redd alludes to the second part of the "institution" definition and claims exhibit 14 is inadmissible because University Hospital was not shown to have the appropriate classification from the Department of Health.

Had the state been warned at first that Redd insisted upon this formal showing, steps might have been taken to procure the required proof; but the objection was never specifically made on this ground at trial. Redd does not claim even now that University Hospital lacks the hospital classification. Accordingly, considering the highly technical nature of the objection to the evidence, we will not allow it to be raised now, since a contrary ruling would allow Redd...